A 
A 

0 

0 
0 
7 
6 
7 
1 
2 
4 


1111 


Th£ 

Lawyers 

Cooperative  Publishing  Q>. 

•'ESTER,  N.Y. 


THE  LIBRARY 
OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A 

TREATISE  ON  FRANCHISES 

ESPECIALLY    THOSE    OF 

PUBLIC  SERVICE  CORPORATIONS 

CONTAINING    ALSO    IN    AN 

APPENDIX 

THE  PUBLIC  SERVICE  COMMISSIONS  LAW 
OF  NEW  YORK 


THE  PUBLIC  UTILITY  LAW 

OF  WISCONSIN 


JOSEPH  ASBURY  JOYCE 

OF   THE   NEW   YORK,   CALIFORNIA,   AND   CONNECTICUT  BARS;   AUTHOR 

OF    "JOYCE    ON    INSURANCE,"    "  JOYCE    ON    DAMAGES"    AND 

JOINT    AUTHOR    OF    "JOYCE    ON    ELECTRIC    LAW." 


THE  BANKS  LAW  PUBLISHING  COMPANY 

23  PARK  PLACE,  NEW  YORK 

1909 


T 

1909 


Copyright.   1909.   by 
THE  BANKS  LAW  PUBLISHING  COMPANY 


DEDICATED 

TO   THE    MEMORY   OF 

MY    FRIEND 

AND 

SOMETIME    LAW    PARTNER 

THE    LATE 

JUDGE  NOBLE  HAMILTON 

OF 

SAN  FRANCISCO,  CALIFORNIA 

WHO 

RENDERED    TO    THE    BENCH    AND    BAR 

MANY    YEARS    OF 

UPRIGHT    AND    ABLE    SERVICE 


734098 


Digitized  by  the  Internet  Archive 

in  2008  with  funding  from 

Microsoft  Corporation 


http://www.archive.org/details/franchisespubOOjoyc 


PREFACE 

In  preparing  this  treatise  on  the  very  important  subject  of 
franchises,  especially  those  of  public  service  corporations,  the 
author  has  endeavored  to  logically  arrange  and  make  clearly 
apparent  the  essential  governing  principles  and  the  law  which 
is  applicable,  and  to  present  them  as  concisely  as  is  consistent 
with  clearness  and  an  exhaustive  treatment  thereof.  Great 
care  has  been  exercised  in  stating  not  only  these  essential  prin- 
ciples and  the  law  applicable,  but  they  have  been  illustrated 
by  decisions  or  statements  of  facts  in  the  text,  and  elucidated 
by  notes  embodying  numerous  quotations  from  the  courts. 
Especial  attention  has  also  been  given  to  the  enunciation  of 
the  doctrines  set  forth  in  the  decisions  of  the  United  States 
Supreme  Court.  While  the  above  states  the  author's  general 
purpose,  his  specific  plan  has  been  to  define  and  consider  in 
logical  sequence  the  nature,  character,  source  and  underlying 
principles  of  all  franchises,  and  the  distinctions  between  them, 
for  the  better  ascertainment  of  what  franchises  of  corporations 
comprise;  to  define  and  show  the  nature,  character  and  source 
of  power  of  all  corporations,  to  classify  and  distinguish  them, 
and  so  make  clear  what  constitute  public  service  corporations 
and  their  peculiar  characteristics,  especially  in  regard  to  those 
franchises  possessed  by  them  which  are  not  common  to  other 
corporations.  Inasmuch  as  franchises  are  derived  from  and 
owe  their  existence  to  the  sovereign  power  or  State,  and  the 
right  to  their  exercise  is  dependent  upon  the  extent  to  which 
the  State  or  subordinate  bodies  may  grant,  regulate  or  control 
and  forfeit  such  franchises,  and  the  validity  of  legislative  enact- 
ments, the  author  has  also  considered  in  their  proper  and  logical 
order,  certain  subjects,  such  as  Federal  and  state  constitutional 
and  legislative  powers;  the  delegation  of  powers  by  Congress, 

v 


PREFACE 

by  the  State,  and  to  subordinate  bodies  or  agencies ;  the  law  of 
interpretation  or  construction  of  constitutions  and  statutes ;  the 
various  constitutional  provisions,  including  obligation  of  con- 
tracts, due  process  of  law,  and  equal  protection  of  .the  laws; 
and  as  dependent  thereon  the  relative  rights  of  the  State  and 
of  all  corporations  in  relation  to  franchises  and  governmental 
control  and  regulation,  including  rate  regulation,  taxation, 
alienation  and  forfeiture  of  franchises.  The  author  trusts  that 
the  plan  of  this  treatise  is  such  as  to  commend  itself  to  the 
Bench  and  the  Bar,  and  that  the  work  will  be  of  some  aid  not 
only  in  saving  time  and  labor,  but  also  in  ascertaining,  deter- 
mining and  applying  the  principles  and  the  law  governing  fran- 
chises. 

Joseph  Asbury  Joyce. 

New  York  City,  New  York,  January,  1909. 


vi 


CONTENTS. 


CHAPTER  I. 


DEFINITIONS. 


1.  Definition     of      Franchise      by 

Finch,      Blackstone,     Chitty, 
Cruise  and  Kent. 

2.  Chief  Justice  Taney's  Definition 

of  a  Franchise. 

3.  Other  Definitions  and  Expres- 

sions Classified — Franchises. 

4.  "Franchise"  as  a  Contract — As 

an  Exclusive  Right. 

5.  "  Corporate  Franchise  " — Corpo- 

rate Franchises. 


§  6.  General  Franchise  of  Corpora- 
tion. 

7.  Special    Franchise   of   Corpora- 

tion. 

8.  Primary  Franchise,  and  Secon- 

dary Franchises  of  Corpora- 
tion. 

9.  "Franchise"    Under    Constitu- 

tions and  Statutes. 


CHAPTER  II. 


ENUMERATION   OF    FRANCHISES. 


10.  Enumeration  of  Franchises —   § 

Generally. 

11.  Corporations   —    Generally  — 

Members'  Rights — Member- 
ship —  Corporate  Name  — 
Municipal  Corporations  — 
"Public  Franchise." 

12.  Corporations  Continued — 

What  Franchises  Are  Em- 
braced — Generally. 

13.  Corporations  Continued — For- 

eign Corporations — Gener- 
ally. 

14.  Common  Carriers  —  Railroads 

— Street  Railroads. 

15.  Bridges  —  Roadways  —  Fer- 

ries— Canals. 

16.  Right  to  Supply  Water,  Gas  or 

Electricity 


17.  Right  to  Tolls,  Fares,  Rates  or 

Wharfage. 

18.  Banking — Insurance. 

19.  Eminent  Domain. 

20.  Exemption  or  Immunity  from 

Taxation,  Jury  Duty  and 
Working  on  Public  Roads. 

21.  Political      Rights,     "Elective 

Suffrage,"  "Elective  Fran- 
chise" or  Freedom — Public 
Office  —  Attorney  or  Coun- 
sellor —  Right  to  Preside  — 
Appointment  of  Professors 
—  Liquor  License  —  "  Com- 
modities " — Fishery — Public 
Market  —  Patent  Right  — 
Trade-mark  —  "  News  Con- 
tract." 

vii 


Vlll 


TABLE    OF    CONTENTS 


CHAPTER  III. 

NATURE    OF    FRANCHISE. 


§  22.  Franchise  as  Monopoly  or  Ex- 
clusive in  Its  Nature. 

23.  Same  Subject  Continued. 

24.  Same  Subject  Continued. 

25.  Franchise  as  Property. 

26.  Same  Subject  Continued. 

27.  Same  Subject  Continued. 


§  28.  Franchise  of  Members,  Share- 
holders or  Corporators  us 
Property. 
29.  Corporate  Franchises  Are 
Legal  Estates  not  Mere 
Naked  Powers. 


CHAPTER  IV. 

NATURE    OF    FRANCHISE    CONTINUED — DISTINCTIONS. 


30.  Franchises    Essential  and  not 

Essential  to  Corporate  Ex- 
istence— "  Essentially  Cor- 
porate Franchises." 

31.  "Corporate    Powers   or   Privi- 

leges "  not  Franchises  Essen- 
tial to  Corporate  Existence. 

32.  Franchises     and     Powers — To 

What  Extent  Distinguished. 

33.  Franchise  to  Be,  Separate  and 

Distinct  from  Property  or 
Franchise  Which  Corpora- 
tion May  Acquire. 

34.  Same  Subject  Continued. 

35.  Same      Subject  —  "Personal 

Franchise "  Distinguished 
from  Property  Franchise. 

36.  Franchise  Differs  from  Grant 

of  Land — Easement — Free- 
hold. 

37.  General      Creative     Franchise 

and  Special  Franchise  Dis- 
tinguished. 

38.  Franchise    Belonging    to    Cor- 

porators and  Those  Belong- 
ing to  Corporation  Distin- 
guished. 

39.  Franchise  to  Be  and  to  Carry 

on  Business  Distinguished — 
"  Corporate  Franchise  or 
Business." 


40.  Franchise  Distinguished  from 

Means  Employed  in  Exer- 
cising it. 

41.  Charter    and    Franchise  —  To 

What  Extent  Distinguished. 

42.  Charter    and    Franchise    Con- 

tinued —  How  Extent  of 
Powers  Is  Ascertained. 

43.  Charter    and    Franchise    Con- 

tinued —  Where  Franchise 
Does  not  Take  Effect  Before 
Actual  Formation  of  Corpo- 
ration. 

44.  Charter    and    Franchise    Con- 

tinued— Charter  Rights  and 
Privileges  Derived  Through 
Organization  —  "  Additional 
Franchise  or  Privilege"  Ac- 
quired After  Incorporation. 

45.  Charter    and    Franchise    Con- 

tinued— Distinction  Exists. 

46.  Charter    and    Franchise    Con- 

tinued— "Charter"  as  Syn- 
onymous with  "Franchise." 

47.  Whether  Certain  Grants  Con- 

stitute a  License,  Privilege, 
Permission,  Gratuity  or  Con- 
tract; and  not  a  Franchise — 
Distinction. 

48.  Same  Subject  Continued. 


TABLE    OF   CONTENTS 


IX 


CHAPTER  V. 


DEFINITIONS,  CLASSIFICATION,  NATURE    OF    CORPORATIONS  AND 

DISTINCTIONS. 


49.  Change  in  Nature  and  Rela- 

tions of  Corporations  —  Ef- 
fect upon  Early  Definitions. 

50.  Definitions  of  a  Corporation. 

51.  Summary  of  Expressions  Used 

in  Defining  a  Corporation. 

52.  To  What  Extent  Definition  of 

Corporation  Includes  a  Com- 
pany, Association  and  Joint- 
Stock  Association  or  Com- 
pany— Partnership. 

53.  Same  Subject  Continued. 

54.  Same  Subject — Conclusion. 

55.  General  Classification  of  Cor- 

porations— Public  and  Pri- 
vate. 

General  Classification  of  Cor- 
porations Continued — Quasi- 
Public  Corporations- — Quasi- 
Municipal  Corporations. 

Other  Divisions  or  Kinds  of 
Corporations. 

58.  Classification   as   Affected    by 

Constitutions  and  Statutes. 

59.  Classification   as    Affected    by 

Public  Service  Commissions 
Law  or  Public  Utilities  Act. 


56 


57. 


60.  Corporation  Considered  as  Civil 

or  Political  Institution  — 
Distinctions  Between  Incor- 
poration and  Corporation — 
Distinction  Between  Public 
and  Private  Corporations. 

61.  Public,  Quasi-Public  and  Pri- 

vate Corporations  Defined 
and  Distinguished. 

62.  Same  Subject  Continued. 

63.  Duties,  Obligations  and  Pow- 

ers as  Affecting  Classification 
or  Nature  of  Corporations — 
Public  Service  Corporations. 

64.  To  What  Extent  Corporations 

Are  "  Persons  " — Generally. 

65.  To  What  Extent  Corporations 

Are  "  Persons  "  Under  Stat- 
utes. 

66.  Corporations  as  "  Persons  "  Un- 

der Constitution  of  United 
States. 

67.  Corporations  as  "Citizens"  for 

Federal  Jurisdictional  Pur- 
poses— Not  "  Citizens "  Un- 
der Constitution  of  United 
States. 


CHAPTER  VI. 


NATURE   OF   VARIOUS   CORPORATIONS. 


68.  Agricultural     Societies — State 

Board  of  Agriculture — Agri- 
cultural College. 

69.  Banks. 

70.  Bridge  Companies. 

71.  Building    and    Loan    Associa- 

tions. 

72.  Canal  Companies. 

73.  Colleges — State  University. 


74.  Common  Carriers. 

75.  Drainage     Companies — Drain- 

age— Constitutional     Law — 
Police  Power. 

76.  Electric  Light,  Heat  and  Power 

Companies. 

77.  Electric  Light,  Heat  and  Power 

Companies — When  a  "  Man- 
ufacturing "  Company. 


TABLE    OF   CONTENTS 


78.  Electric    Light,   Heat  and 

Power  Companies  —  When 
not  a  "  Manufacturing " 
Company. 

79.  Express  Companies. 

80.  Ferries — Ferry  Company. 

81.  Fire  Engine  Company. 

82.  Gas  Companies — Public  Serv- 

ice Corporation. 

83.  Gas — Natural  Gas  Companies. 

84.  Gas    Company — Natural    Gas 

Company  —  When  "  Manu- 
facturing" Company. 

85.  Heating  Corporation. 


86.  Hospital  Corporation. 

87.  Insurance  Companies. 

88.  Irrigation   Companies — Irriga- 

tion Districts. 

89.  Levee    District s — Levee 

Boards. 

90.  Log  Driving  or  Boom  Corpora- 

tions. 

91.  Manufacturing  Corporations. 

92.  Market  Company. 

93.  Medical  College. 

94.  Park  Association. 

95.  Plank  Roads. 


CHAPTER  VII. 


NATURE   OF  VARIOUS   CORPORATIONS   CONTINUED. 


96.  Race  Track  Association. 

97.  Railroad  Companies — Nature 

of  as  Affected  by  Their  Re- 
lation and  Duty  to  the  Pub- 
lic. 

98.  Railroad  Companies  as  Public 

Corporations  or  "  Public 
Companies  " — Statute. 

99.  Railroad   Companies  as   Pri- 

vate Corporations. 

100.  Railroad  Companies  as  Quasi- 

Public  Corporations. 

101.  Railroad  Companies  as  Form- 

ing Distinct  Class  by  Them- 
selves— Distinct  from  Pub- 
lic, Private  or  Other  Quasi- 
Public  Corporations. 

102.  Railroad — Public  Use. 

103.  Railroad — Machine    for    Un- 

loading Coal — Branch  Rail- 
road Track — Public  Use. 

104.  Railroads  as  Public  Utilities 

— Public  Service  Commis- 
sions Law — Public  Utilities 
Act. 

105.  Railroad  Companies  as  Com- 

mon Carriers. 


106.  Railroad  Carrier's  Business  as 

Part  of  Trade  or  Commerce 
— Interstate  Commerce. 

107.  Railroads  as  Highways. 

108.  Reclamation  Districts. 

109.  Sleeping     Car     Companies — 

Palace  Cars. 

110.  Stockyards  Company. 

111.  Street  Railways — Street  Rail- 

way Companies. 

112.  Street  Railroad — Street  Rail- 

road    Corporation — Public 
Service  Commissions  Law. 

113.  Storage  and   Elevator  Com- 

panies. 

114.  Telegraph      and      Telephone 

Companies. 

115.  Trustees  —  Company    Incor- 

porated   as  —  Trustees   of 
Poor. 

116.  Turnpike     Companies  —  Toll 

Roads. 

117.  Turnpike  Road  as  Highway. 

118.  Waterworks. 

119.  Wharf  —  " Public  Wharf"  — 

Wharfingers. 


TABLE    OF   CONTENTS 


XI 


CHAPTER  VIII. 

SOURCE  OF  FRANCHISE — FEDERAL,  CONSTITUTIONAL  AND  LEGIS- 
LATIVE   POWERS. 


§  120.  National  and  State  Powers — 
Generally. 

121.  Distinction  Between  Limita- 

tions on  Powers  of  Federal 
and  of  State  Governments. 

122.  Grant    of     Franchises — Gov- 

ernmental or  Legislative 
Power — G  enerally . 

123.  Power  of  Congress  to  Estab- 

lish Corporations — Gener- 
ally. 

124.  Power  of  Congress  to  Grant 

Additional  Franchises. 

125.  Power  of  Congress  Over  Fran- 

chises of  State  Corporation 
— Interstate  Commerce — 
Generally. 

126.  Grants  by  Congress — Banks. 

127.  Power    of    Congress — Bridge 

Corporation — B  ridge  s — 
Commerce. 


§  128.  Power  of  Congress  to  Declare 
Bridge  a  Lawful  Structure 
After  Its  Being  Adjudged  a 
Nuisance;  or  After  Injunc- 
tion Suit — Post  Route. 

129.  Power  of  Congress  to  Grant 

Franchise  to  Railroads — 
Interstate  Commerce — The 
Pacific  Railroad  Compan- 
ies. 

130.  Power  of  Congress  Over  Terri- 

tories— Telegraph  and  Tele- 
phone —  Savings  Institu- 
tion —  Territorial  Powers 
Generally — Irrigation  Com- 
panies. 

131.  Extent  of  Authority  Granted 

by  Post  Roads  Act — Tele- 
graph Companies. 


CHAPTER  IX. 

SOURCE    OF    FRANCHISE    CONTINUED— STATE,     CONSTITUTIONAL 
AND    LEGISLATIVE    POWERS. 


132.  Legislative  Power — Source  of 

Franchise  or  Charter— Leg- 
islative Grant  Necessary. 

133.  Same  Subject — Prescription. 

134.  Test  of  Legislative  Power  to 

Grant  Franchises. 

135.  Distribution    or    Division    of 

Powers  of  State. 

136.  What     Matters     Exclusively 

Within   Legislative  Discre- 
tion— Power  of  Courts. 

137.  Limitations     on     Powers     of 

State  Legislature. 

138.  Abdication    or   Surrender    of 


Essential  or  Distinctive 
Legislative  Powers — Bind- 
ing Future  Legislatures — 
Waiver  —  Police  Powers — 
Judicial  Powers. 

139.  Legislative  Powers  of  Terri- 

tory— Corporations  Created 
by  Territory  Follow  It  Into 
Union. 

140.  Legislative   Power   to   Grant 

Implies  Power  to  Refuse 
Franchise — Refusal  by  Sub- 
ordinate Body. 

141.  Consent  of  Subordinate  Body 


Xll 


TABLE    OF   CONTENTS 


Unnecessary  to  Exercise  of 
Power  by  Legislature. 
§  142.  Corporations      Created      by 
Rebel  State. 

143.  Legislative  Power — Grant  of 

Additional  Franchises  — 
Amendments. 

144.  Legislative  Grant  Necessary — 

Roads,  Highways,  Bridges 
and  Ferries,  Eminent  Do- 
main— Generally. 


145.  Bridge  Corporation — Bridges 

— Commerce  —  Navigable 
Waters  Wholly  Within 
State — Power  of  State  as 
to  Toll  Bridges — Railroad 
Toll  Bridge. 

146.  Pier    Erected    Without    Au- 

thority in  Navigable  Water 
—  Unlawful  Structure  — 
Owner's  Liability. 


CHAPTER  X. 


DELEGATION   OF   POWER — GENERALLY. 


147.  Delegation    of    Power —  Dis- 

tinction Between  Power  to 
Make  Laws  and  Discretion 
as  to  Their  Execution  or 
Administration — Power  to 
Regulate. 

148.  Grant  of  Franchise  May  Be 


Made  Through  Lawful  Del- 
egated Agency. 
§  149.  Delegation  of  Power — Police 
Regulations — Generally. 
150.  Delegation  of  Power  of  Taxa- 
tion. 


CHAPTER  XL 


DELEGATION  OF  POWER  BY  CONGRESS. 


151.  Delegation  to  the  President. 

152.  Delegation    to    Secretary    of 

War — Bridges. 

153.  Delegation  of  Power  to  Inter- 

state   Commerce    Commis- 
sion. 


§  154.  Delegation  to  American  Rail- 
way Association. 
155.  Delegation  of  Power  to  Deter- 
mine Compensation  Under 
Right  of  Eminent  Domain 
Exercised  by  United  States. 


CHAPTER  XII. 


DELEGATION  OF  POWER  BY  STATE — ENUMERATION  OF  SUBORDI- 
NATE   BODIES. 

§  156.  Delegation  to  Board  of  Agri-    §   158.  Delegation  to  Commissioners 


culture. 
157.  Delegation    to   Commissioner 
of  Banking  and  Insurance 
— Secretary  of  State. 


of  Bridges. 
159.  Delegation  to  Drainage  Com- 
missioners —  Removal    of 
Bridge   by   Railway  Com- 
pany. 


TABLE    OF   CONTENTS 


Xlll 


160.  Delegation  to  Commission  of 

Gas  and  Electricity. 

161.  Delegation     to     Grain     and 

Warehouse   Commission. 

162.  Delegation   to   Inspectors   of 

Coal  Mines. 

163.  Delegation  to  Bureau  of  In- 

surance or  to  Superintend- 
ent or  Commissioner  of  In- 
surance— Standard   Policy. 

164.  Delegation  to  Levee  District. 

165.  Delegation  to  Board  of  Loan 

Commissioners — Territory. 


166.  Delegation  to  Public  Service 

Commission  of  New  York. 

167.  Delegation  to  Railroad  Com- 

missioners. 

168.  Delegation  to  Railroad  Com- 

mission —  Public  Utility 
Law  of  Wisconsin. 

169.  Delegation   to    Railroad   and 

Warehouse  Commission — 
Railroad  —  Carriers  —  In- 
crease of  Capital. 

170.  Delegation  to  State  Corpora- 

tion Commission. 


CHAPTER  XIII. 


DELEGATION   OF   POWER  TO   AND   BY   COURTS. 


171.  Delegation  to  Courts — Gener- 

ally. 

172.  Delegation  to  Courts  of  Eq- 

uity —  Railroad  Bridges 
Crossing  Highways. 

173.  Delegation  to  Supreme  Judi- 

cial Court — Water  Rates. 

174.  Delegation  to  Appellate  Court 

— Reasonableness  of  Rates 
Fixed  by  Commission. 

175.  Delegation  to  Fiscal  Court — 

Subdelegation  to  County 
Judge  —  Subscription  to 
Stock  of  Railroad  Com- 
pany. 

176.  Delegation  to  Circuit  Courts 

— Designation  of  Telephone 
Route  —  Charter  to  Ob- 
struct Highway. 

177.  Delegation  to  Federal  Circuit 

Courts — Power  to  Enforce 
Orders  of  Interstate  Com- 
merce Commission — Juris- 
diction— Contract  Rights  of 
Railroad. 

178.  Delegation  to  County  Com- 

missioners' Court — County 
Courts — Ferry  Franchise — 


Grant  of  Use  of  Streets  by 
Railroad  or  Gas  Company. 

179.  Delegation  to  Probate  Court 

—Use  of  Streets  by  Tele- 
phone Company. 

180.  Delegation  to  Court  of  Visita- 

tion. 

181.  Delegation     of     Power — Au- 

thority of  Dental  Board 
Over  Colleges. 

182.  Delegation  to  Board  of  Equal- 

ization— Review  of  Action 
of — Federal  Courts. 

183.  Delegation  to  Commissioners 

by  Courts — Construction  of 
Street  Railroads — Appoint- 
ment by  Circuit  Judge  of 
Commissioners  of  Equaliza- 
tion. 

184.  Delegation  of  Powers — Power 

of  Courts  in  Relation  to — 
Power  of  Over  Municipali- 
ties, Common  Council,  Com- 
missioners of  Waterworks, 
Railroad  Commissioners, 
and  Over  Other  Courts, 
etc. — Police  Power. 


XIV 


TABLE    OF   CONTENTS 


CHAPTER  XIV. 

DELEGATION     OF    POWER — MUNICIPAL,     QUASI-MUNICIPAL     AND 
SUBORDINATE    AGENCIES. 


§  185.  Delegation   to   Municipalities 
— Generally. 

186.  Delegation  to  Municipality — 

Ferries  —  Bridges  —  Rates 
for  Gas,  Water,  Street 
Railroads,  etc. 

187.  To   What   Extent   Franchise 

Granted  by  State  Is  Sub- 
ject to  Municipal  Consent 
for  Exercise  —  Power  to 
"  Prevent "  Distinguished 
from  Power  to  "Regu- 
late"— Consent  to  Use  of 
Streets,  etc. 

188.  Delegation    to    Municipal    or 

City  Council — Street  Rail- 
ways— Extent  of  Power  of 
City  Council. 

189.  Right    to   Amend    Municipal 

Charter,  as  to  Grant  of 
Franchise,  not  a  Delega- 
tion of  Legislative  Power 
to  People. 

190.  Delegation  to  Board  of  Rapid 

Transit  Railroad  Commis- 
sioners —  Subways  —  City 
Ownership  and  Obligations 
— Change  of  Construction 
Plans. 

191.  Power  of  Electrical  Commis- 

sion— Electrical  Conduits — 
Board  of  Commissioners  of 
Electrical  Subways — Board 
of  Electrical  Control. 

192.  Delegation  of  Power — Grant 

of  Franchises  —  Board  of 
Estimate  and  Apportion- 
ment of  New  York — Trans- 
fer of  Power  from  Another 
Board  —  Cumulative  Vot- 
ing. 


193.  Dock  Department  no  Power 

to  Grant  Franchises — 
Street  Railway. 

194.  Delegation  to  County  Com- 

missioners —  Ferries  — 
Bridges — Use  of  Streets — 
Permits  —  Gas  and  Elec- 
tricity— Street  Railroads — 
Repaving  —  Removal  of 
Poles,  etc. 

195.  Delegation    to    Towns,    Vil- 

lages and  Counties — Water 
Rates  —  Ferries  —  Heat, 
Light  and  Power  Franchise 
and  Contract,  When  Void 
— Waterworks  —  Hydrant 
Rentals. 

196.  Delegation  to  Town  Council — 

Use  of  Streets. 

197.  Delegation  to  Selectmen,  or  to 

Board  of  Aldermen  of  City 
— Use  of  Streets — Location 
and  Control  of  Electrical 
Appliances,  etc.  —  Condi- 
tions as  to  Street  Railway 
Fares. 

198.  Delegation    to    Trustees 

of  Town  —  Drawbridge  — 
Board  of  Gas  Trustees — 
Gas  Rates — Lighting  Plant 
Ordinance  Invalid. 

199.  Delegation  to  Board  of  Super- 

visors— Grant  of  Turnpike 
Franchise — Right  to  Col- 
lect Tolls. 

200.  Delegation    to    Highway    or 

Toll  Road  Commissioners — 
Public  Lighting  Franchise 
— Bridges — When  Order  to 
Cease  Taking  Tolls  Invalid 
— Delegation  to  City  Offi- 


TABLE    OF   CONTENTS 


XV 


Subway     Construe-    §  202.  Delegation  of  Power  by  Mu- 
nicipality. 
203.  Delegation  by  Ordinance  to 
Street  Commissioner. 


cials, 
tion. 
201.  Delegation  to  Police  Juries — 
Ferries,  Bridges  and  Roads. 


CHAPTER  XV. 

CONSTITUTIONAL  LAW — INTERPRETATION   OR  CONSTRUCTION   OF 
CONSTITUTIONS. 


205. 


206. 


204.  Interpretation    or    Construc- 
tion— G  enerally . 

Construction  —  Intent —  Ef- 
fect Given  to  Every  Part — 
Ordinary  Signification  of 
Words — Grammatical  Con- 
struction. 

Context — Ordinary  and  Tech- 
nical Meaning  of  Words — 
Phrase  or  Word  in  Differ- 
ent Parts  of  Instrument. 
207.  Plain  Language  of  Constitu- 
tion Cannot  Be  Ignored — 
Repugnant  Provisions. 

Meaning  of  Constitution  as 
Understood  by  Its  Framers 
— Construction. 

Strict   Construction. 

Implied  Matters  a  Part  of 
Constitution. 

Punctuation. 

Interpretation  in  View  of 
Common  Law. 

Constitutional  Prohibitions — 
Proviso — Exception  from 
General  Words. 

Partially  Invalid  Provisions. 

Construction   —   Prospective 
— Retrospective. 
216.  Contemporaneous     Construc- 
tion— Extrinsic    Matters — 


208. 


209. 
210. 

211. 
212. 

213. 


214 
215 


History — Debates  and  Pro- 
ceedings in  Convention. 
217.  Contemporaneous     Construc- 
tion   Continued  —  Legisla- 
tive Construction. 

Construction  or  Interpreta- 
tion Long  Continued  and 
Acquiesced  in  by  Legisla- 
tive and  Executive  Depart- 
ments. 

Long  and  Continued  Usage. 

Amendments  to  Constitution. 
221.  Title    of    Legislative    Enact- 
ment  Proposing   Constitu- 
tional Amendment. 

Revised  Constitution  —  Re- 
enactment. 

Constitution    Adopted    from 
Another    State — Construc- 
tion. 
224.  Former      Constitution      Re- 
pealed by  Implication. 

Whether  Constitutional  Pro- 
visions Self-Executing. 

When  Constitutional  Provi- 
sion Is  Self-Executing — In- 
stances. 
227.  When  Constitutional  Provi- 
sion Is  not  Self-Executing 
— Instances. 


218. 


219 

220 


222. 


223. 


225. 


226. 


CHAPTER  XVI. 


CONSTITUTIONAL  LAW — INTERPRETATION   OR  CONSTRUCTION   OF 

STATUTES. 


228.  Constitutional  Law — Inter- 
pretation or  Construction 
of  Statutes — Generally. 


§  229.  Judicial  Authority  and  Duty 
to  Determine  Constitu- 
tional Questions. 


XVI 


TABLE    OF   CONTENTS 


§  230.  Validity  of  Statutes— Gener- 
ally. 

231.  Presumption  That  Legislative 

Enactment  Constitutional 
—  Repugnancy  Must 
Clearly  Appear. 

232.  Same  Subject — Exception  to 

or  Qualification  of  Rule. 

233.  Conflicting   Provisions — Vali- 

dating Interpretation  or 
Construction  —  Two  Con- 
structions. 

234.  Partial  Invalidity. 

235.  Same  Subject — Instances. 

236.  Intent— Effect  to  Be   Given 

to  Every  Part. 

237.  Plain  and  Manifest  Intention. 

238.  Natural  and  Reasonable  Ef- 

fect and  Construction — Or- 
dinary or  Popular  Meaning 
— Absurdity  or  Injustice. 

239.  Literal   Meaning  —  Intention 

and  Letter  of  Statute. 

240.  General  and  Specific  Words  or 

Clauses — General  Legisla- 
tion. 

241.  Construction  of  Special  Words 

and  Clauses  in  Grants  of 
Franchises  or  Privileges  to 
Street  Railway,  Railroad 
and  Electric  Light,  etc., 
Companies. 

242.  Construction   as   to  Conflict- 

ing Railroad  Grants — Un- 
divided Moiety. 

243.  Matters  Incorporated  by  Ref- 

erence. 

244.  Title  of  Statute. 

245.  Same    Subject    Continued — 


Constitutional        Require- 
ments. 
§  246.  Title  of  Acts  Which  Amend, 
Revive  or  Repeal. 

247.  Title  to  Statutes — Instances 

— Incorporation  —  Expro- 
priation —  Railroads  — 
Street  Railroads — Bonds  in 
Aid  of  Railroads — Lien  on 
and  Sale  of  Railroad  — 
Electrical  Conductors  — 
Fraudulent  Elections  in 
Corporations — Foreign  Cor- 
porations. 

248.  Punctuation. 

249.  Order    of    Arrangement  — 

Transposition  —  Alteration 
— Omissions — Rej  ections . 

250.  Construction    of    Proviso    or 

Exception. 

251.  Liberal  Construction — Mean- 

ing Extended  —  Implica- 
tion. 

252.  Strict  Construction. 

253.  Common    Law — Statutes    in 

Derogation  of. 

254.  Public  Grants  of  Franchises, 

Privileges,  etc. — Construc- 
tion Against  Grantee. 

255.  Same    Subject    Continued  — 

Instances  —  Railroads  — 
Street  Railroads — Subma- 
rine Railway — Gas,  Tele- 
phone, Canal,  Water  and 
Turnpike  Companies  — 
Ferry — Eminent  Domain. 

256.  Same     Subject  —  Instances 

Continued  —  Public  Land 
Grants — Railroad  Aid. 


CHAPTER  XVII. 


CONSTITUTIONAL  LAW — INTERPRETATION   OR  CONSTRUCTION  OF 
STATUTES   CONTINUED. 

§  257.  Grant     of     Exclusive     Fran-    §  258.  Separate  Grants  of  Franchises 
chises,  Rights  or  Privileges  — Rule  of  Construction. 

— Strict  Construction.  259.  Settled  Judicial  Construction. 


TABLE    OF   CONTENTS 


XVU 


260.  Practical     Construction     by    §  275. 

Parties. 

261.  Effect     of     Interpretation — 

Beneficial   Reasons — Natu- 
ral  Justice   and    Equity —       276. 
Inconvenience — Injury     or 
Hardship. 

262.  Contemporaneous     Construe-       277. 

tion — Extraneous  Matters 
— History — Debates,  etc. 

263.  Policy     of     Government,     of        278. 

Legislative  Body  or  of  Law 
— Public  Policy — General 
Principles  of  Law. 

264.  Remedial  Statutes. 

265.  Statutes  in  Pari  Materia.  279. 

266.  Statutes  in  Pari  Materia  Con- 

tinued. 

267.  Statutes  in  Pari  Materia  Con- 

tinued— Exception     to     or        280. 
Qualification  of  Rule. 

268.  Words  or  Provisions  of  Prior 

Statute  Adopted  in  Later 
Act. 

269.  Derivative     Statutes  —  Con-       281. 

struction  of  Statutes 
Adopted  from  Foreign 
State  or  Country.  282. 

270.  Re-enactment   —  Consolida- 

tion— Revised     Statutes —       283. 
Codes.  284. 

271.  Construction  by  State  of  Its 

Statutes— How     Far     Re-       285. 
spected  in  Courts  of  Other 
States. 

272.  Construction    of    State    Con-       286. 

stitutions  and  Statutes  by 
State  Courts — How  Far  Re- 
spected by  Federal  Courts.        287. 

273.  Same  Subject  Continued. 

274.  Same    Subject    Continued—       288. 

Exceptions  to  or  Qualifica- 
tions of  Rule. 


Same  Subject  Continued — 
Instances  —  Incorporation 
Acts — Eminent  Domain — 
Corporate  Powers. 

Same  Subject — Instances — 
Common  Carriers  —  Rail- 
roads. 

Same  Subject  —  Instances 
Continued— Revenue — Tax- 
ation. 

Same  Subject  —  Instances 
Continued  —  Exemptions 
from  Taxation  —  Impair- 
ment of  Obligation  of  Con- 
tract as  to  Taxation. 

Same  Subject  —  Instances 
Continued  —  Impairment 
of  Obligation  of  Contract — 
Fourteenth  Amendment. 

Same  Subject  —  Instances 
Continued — Statutes  Penal 
in  Nature — Trustees  of  Cor- 
porations  —  Anti-trust 
Laws. 

Same  Subject  —  Instances 
Continued  —  Foreign  Cor- 
porations. 

Repeal  or  Amendment  of 
Statutes. 

Same  Subject  Continued. 

Same  Subject  Continued — 
Instances. 

Same  Subject  —  Instances 
Continued — Taxation  and 
Assessment. 

Construction  of  Statutes, 
Charters  and  Ordinances — 
Miscellaneous  Cases. 

Prospective  and  Retrospec- 
tive Operation. 

Validating  Statutes — Waiver 
or  Correction  of  Defects  or 
Irregularity. 


XV111 


TABLE    OF    CONTENTS 


CHAPTER  XVIII. 


CONSTITUTIONAL   LAW — FEDERAL  CONSTITUTION. 


289.  Constitution  —  Grant       and 

Limitation  on  Powers  of 
Governments — Express 
and  Implied  Powers — Con- 
struction. 

290.  Same  Subject  Continued. 

291.  Privileges  and  Immunities  of 

Citizens  in  the  Several 
States. 

292.  Same    Subject    Continued  — 

Discrimination — Tax  Law 
— Deduction  of  Debts — 
Creditors  in  Different 
States. 


§  293.  Same     Subject  —  Actions — 
Statutes  of  Limitations. 

294.  The  Fourteenth  Amendment 

— Generally. 

295.  Same  Subject — Police  Power. 

296.  Privileges     and     Immunities 

of  Citizens   of   the  United 
States. 

297.  Due  Process  of  Law. 

298.  Same  Subject  Continued. 

299.  Same  Subject  Continued. 

300.  Equal     Protection     of     the 

Laws. 


CHAPTER  XIX. 


OBLIGATION   OF   CONTRACTS. 


§  301.  Impairment  of  Obligation  of 
Contract — G  enerally . 

302.  States — Civil   Institutions   of 

— Constitutional  Restraints 
—Obligation  of  Contracts. 

303.  Obligation  of  Contract — Ex- 

istence of  Legal  Contract — 
Impairment — State  Stat- 
utes. 

304.  Obligation  of  Contracts — Fed- 

eral Question  —  Status  of 
Party  Plaintiff. 

305.  Impairment  of  Obligation  of 

Contracts  —  What  Are 
"  Laws  " — Application. 

306.  Same  Subject — Judicial  Acts 

— Vested  Rights. 

307.  Vested    Rights — Amendment 

to  Effect  Purposes  of  Char- 
ter— Modifying  or  Enlarg- 
ing Powers. 


308.  Charter   Powers  not  Contem- 

plated and  Unexecuted — 
Treated  as  License  and 
Revocable. 

309.  Obligation    of    Contracts    — 

Change  of  Remedy. 

310.  Obligation  of  Contracts — Mu- 

nicipal Corporations. 

311.  Charter  or  Franchise  as  a  Con- 

tract— Impairment  of  Obli- 
gation of  Contract. 

312.  Same    Subject  — The     Dart- 

mouth College  Case. 

313.  Obligation  of  Contract — Stat- 

utes —  Ordinances  —  Dele- 
gated Authority  —  Ease- 
ments in  Streets. 

314.  Same  Subject. 

315.  What  Is  not  a  Contract — Ob- 

ligation of  Contract — When 
Not  Impaired — Instances. 


TABLE    OF   CONTENTS 


XIX 


§  316.  Same  Subject  —  Instances 
Continued — Railroad  Char- 
ter— Subscriptions  in  Aid 
of  Railroad. 

317.  Reservation  of  Power  to  Al- 

ter, Amend  or  Repeal  Grant 
of  Franchise  or  Charter. 

318.  Reservation     of     Power     to 

Alter,  etc.,  Is  Part  of  Char- 
ter or  Contract. 


§  319.  Reservation  of  Power  to 
Alter,  etc.,  and  Limitations 
Thereon. 
320.  Reservation  of  Power  to 
Alter,  etc.  —  Fourteenth 
Amendment — Equal  Pro- 
tection of  the  Law — Dep- 
rivation of  Property  — 
Railroad  Employees. 


CHAPTER  XX. 

OBLIGATION    OF   CONTRACTS   CONTINUED. 


321.  Reserved  Powers  of  Congress 

— Amendment  of  Charter 
of  Subsidized  Railroad — 
Railroad  and  Telegraph 
Company — Cemetery  Com- 
pany. 

322.  Obligation     of    Contract    — 

Vested  Rights — Conditions 
as  Affecting  —  Reserved 
Power  of  Congress — Rail- 
road Grants. 

323.  Implied  Reservation  in  Favor 

of  Sovereign  Power. 

324.  Obligation  of  Contract — Gen- 

eral and  Special  Laws — 
Reservation  of  Power  to 
Alter  or  Repeal — Quo  War- 
ranto. 

325.  Reservation  of  Right  to  Re- 

peal —  Exemption  from 
Legislative  Repeal — Im- 
pairment of  Obligation  of 
Contracts. 

326.  Exemption  from  Execution — 

Corporation  Grantee  of 
Municipal  Waterworks  — 
Obligation  of  Contract. 

327.  Exemption  —  Eminent     Do- 

main— Future  Legislation 
— Obligation  of  Contract. 

328.  Reservation     of     Power     to 

Amend  Charters — Supple- 
mentary Charter. 


329.  Obligation  of  Contract — Mort- 

gaged Franchise  or  Prop- 
erty —  Purchaser  —  Reor- 
ganization of  Corporation. 

330.  Obligation  of  Contract — Fran- 

chises Expiring  at  Differ- 
ent Times  —  Extension  of 
Franchise — Reservation  of 
Power  to  Amend  or  Repeal. 

331.  Obligation    of     Contract   not 

Impaired  —  Consolidation 
of  Corporations — Reserva- 
tion of  Power  to  Alter  or 
Repeal. 

332.  Eminent  Domain — Obligation 

of  Contracts. 

333.  Same  Subject — Instances. 

334.  Constitution        Subsequently 

Adopted  —  Obligation  of 
Contract. 

335.  Obligation  of  Contracts — Po- 

lice Powers — Regulations. 

336.  Obligation     of     Contracts  — 

Conditions — Regulations — 
Reserved  Power  to  Alter, 
etc. 

337.  Obligation     of     Contracts  — 

Street  Paving  by  Street 
Railways — Conditions  and 
Regulations. 

338.  Same    Subject  —  Exemption 

from  Assessment  for  Street 
Paving — Consolidation 


XX 


TABLE    OF   CONTENTS 


§  339.  Impairment  of  Obligation  of  §  340.  Impairment  of  Obligation  of 
Contracts — Illustrative  De-  Contracts — Illustrative  De- 
cisions— Insurance — Banks  cisions  Continued — Tunnel 
— Rate  of  Interest — Pull-  — Ferries — Bridges — Canal, 
man  Cars. 


CHAPTER  XXI. 


CONDITIONS  IMPOSED — GRANT  OF  FRANCHISE. 


341.  Conditions  Imposed  by  Con- 

gress. 

342.  Conditions  Imposed  by  Legis- 

lature. 

343.  Municipal  Powers — Generally. 

344.  Municipal  Control  Over  Streets 

—  Franchise  Rights  of  Cor- 
porations. 

345.  Same  Subject. 

346.  Implied    Conditions — R  a  i  1  - 

road  Company  —  City 
Streets — New  Streets  and 
Crossings — Police  Power. 

347.  Conditions — Payment  of  Ex- 

penses or  Percentage — Ar- 
bitration— Submission  to 
Electors. 

348.  Conditions — Acceptance. 

349.  Same  Subject. 

350.  Same    Subject — Implied    Ac- 

ceptance —  Presumption—- 
Evidence. 

351.  Foreign  Corporation — Situs  of 

— Interstate  Comity. 

352.  Power    of    State    to    Impose 

Conditions  Upon  Foreign 
Corporations. 

353.  Same  Subject  —  Instances  — 

Certificate  —  Designation 
of  Corporate  Agent,  etc. — 
Service  of  Process. 

354.  Same      Subject  —  Instances 

Continued  —  Interstate 
Commerce  — Insurance, 
Railroad  and  Other  Corpo- 
rations. 

355.  Power    of    State    to    Impose 

Condition     Upon     Foreign 


Corporations  —  Agreement 
not  to  Remove  Suit  to 
Federal  Court — Waiver  of 
Right. 
§  356.  Condition  as  to  License,  Privi- 
lege, Business  or  Occupa- 
tion Charge,  Rental,  Fee  or 
Tax — Interstate  Commerce 
— Equal  Protection  of  Law. 

357.  Condition  as  to  License,  etc., 

Fee  or  Tax  Continued — 
Constitutional  Law — Insur- 
ance Companies  —  Deci- 
sions. 

358.  Conditions  as  to  License,  etc., 

Fee  or  Tax  Continued — 
Interstate  Commerce — Ex- 
press Companies  —  Deci- 
sions. 

359.  Condition  as  to  License,  etc., 

Fee  or  Tax  Continued  — 
Constitutional  Law — Rail- 
roads— Consolidated  Rail- 
roads— Street  Railroads — 
Decisions. 

360.  Condition  as  to  License,  etc., 

Fee  or  Tax  Continued — 
Telegraph  Companies. 

361.  Condition  as  to  License  Fee 

or  Tax  Continued — Con- 
stitutional Law — Gas  Fran- 
chises— Brewing  Company 
— Packing  Houses — Deci- 
sions. 

362.  Imposing   New   Conditions — 

— Police  Power. 

363.  Conditions  Subsequent — Con- 

struction of — Performance. 


TABLE    OF   CONTENTS 


XXI 


CHAPTER  XXII. 


REGULATION    AND   CONTROL. 


364.  Regulation    and    Control  — 

General  Statement. 

365.  Regulation     and     Control  — 

Generally. 

366.  Regulation  and  Control — Po- 

lice Power — Generally. 

367.  Foreign  and  Interstate  Com- 

merce Denned — Power  to 
Regulate. 

368.  Same  Subject. 

369.  Regulation    of    Commerce — 

State  Control  of  Business 
Within  Jurisdiction. 

370.  Regulation     of    Commerce — 

Transportation  of  Persons 
or  Property — Generally. 

371.  Regulation     of    Commerce — 

Transportation  of  Railroad 
Cars — Transportation  Over 
River — Distinction  as  to 
Ferries — Police  Power. 

372.  Regulation     of    Commerce — 

Transportation  of  Cattle — 
Inspection  Law  —  Police 
Power. 

373.  Same  Subject. 

374.  Regulation    of    Commerce — 

Transportation  of  Natural 
Gas. 

375.  Regulation    of    Commerce! — 

Stopping  Interstate  Trains. 

376.  Regulation    of    Commerce — 

Telegraph  Messages  —  Po- 
lice Power. 

377.  Regulation    of    Commerce — 

Examination   and    License 


of  Locomotive  Engineers — 
Color  Blindness — Due  Proc- 
ess of  Law. 

378.  Regulation    of   Commerce  — 

Tracing  Lost  Freight. 

379.  Regulation  and  Control — Re- 

quiring Governmental  Con- 
sent. 

380.  Same  Subject. 

381.  Regulation    of    Railroads  — 

Delegation  to  Commission- 
ers— Constitutional  Law — 
Discrimination — Generally. 

382.  Regulation    of    Railroads  — 

Protection  Against  Injury 
to  Persons  and  Property. 

383.  Regulation    of    Railroads  — 

Providing  Stations  or  Wait- 
ing Rooms — Police  Power. 

384.  Regulation    of     Railroads  — 

Sunday  Trains — Interstate 
Commerce — Police  Power. 

385.  Regulation    of     Railroads  — 

Safety  Appliances  and  De- 
vices— Heating  Cars. 

386.  Regulation    of     Railroads  — 

General  Decisions — Extra 
Trains  for  Connections — 
Removal  of  Tracks— Keep- 
ing Open  Ticket  Offices — 
Limitation  of  Liability — 
Adjusting  Damage  Claims 
— Separate  Cars. 

387.  Regulation  of  Street  Railroad 

Companies — Police   Power. 


xxn 


TABLE    OF   CONTENTS 


CHAPTER  XXIII. 

REGULATION  AND  CONTROL  CONTINUED — RATES  AND  CHARGES. 


388.  Regulation  of  Gas  and  Natu- 

ral Gas  Companies— Police 
Power. 

389.  Regulation   of    National 

Banks. 

390.  Regulation  of  Rates — General 

Rules. 

391.  Regulation   of   Public   Ware- 

houses and  Their  Charges — 
Munn  v.  Illinois. 

392.  Regulation    of    Gas    Rates — 

Method  of  Valuation — Pen- 
alty— Equity — Inj  unction. 

393.  Regulation  of  Water  Rates — 

Obligation  of  Contracts — 
Due  Process  of  Law  — 
Equal  Protection  of  Laws 
— Reservation  of  Power  to 
Amend. 

394.  Regulation    of    Water    Rates 

Continued — Obligation  of 
Contracts  —  Defense  That 
Franchise  Has  Expired. 

395.  Regulation    of    Water   Rates 

Continued  —  Illustrative 
Decisions. 

396.  Regulation    of    Ferry    Fares 

and  Tolls. 

397.  Regulation  of  Rates  or  Tolls 

of  Turnpike  Companies — 
Due  Process  of  Law  — 
Power  of  Courts. 

398.  Regulation    of    Fares — Street 

Railways  —  Obligation  of 
Contract. 

399.  Regulation    of   Fares — Street 

Railways  Continued — Con- 
stitutional Law — Contract 
with  Company  —  Altera- 
tion. 

400.  Regulation  of   Rates  —  Rail- 

roads. 

401.  Regulation    of    Rates — Rail- 


roads— Powers  of  Railroad 
and  Like  Commissioners. 

402.  Railroads  —  Regulation      of 

Rates  by  Congress — Reser- 
vation of  Right  to  Alter  or 
Amend. 

403.  Object    of    Interstate    Com- 

merce Act  —  Powers  and 
Jurisdiction  of  Interstate 
Commission. 

404.  Regulation    of    Rates — Rail- 

roads —  Interstate  Com- 
merce— Taxation  of  Freight 
or  Passengers. 

405.  Regulation    of    Rates — Rail- 

roads— Non-user  of  Legisla- 
tive Power — Lessee. 

406.  Regulation    of    Rates — Rail- 

roads— Reasonableness  of 
Rates — Confiscatory  Rates 
— Due  Process  of  Law — 
Equal  Protection  of  Laws. 

407.  Railroad  s — Unreasonable 

Rate  Regulation — Judicial 
Inquiry  —  Due  Process  of 
Law — Equal  Protection  of 
the  Laws. 

408.  Railroad  —  Rates   Fixed    by 

Legislative  Action  Pre- 
sumed Reasonable  —  Rail- 
road Commission  —  Due 
Process  of  Law. 

409.  Railroads — Test    of    Reason- 

ableness of  Rates  Pre- 
scribed by  State — Practice 
— Findings. 

410.  Regulation    of    Rates — Rail- 

road in  Two  or  More  States 
—  Continuous  Line  —  Con- 
solidation— Test  of  Reason- 
ableness of  Rate — Penalties 
— Defense. 

411.  Railroad — Arbitrary  Regula- 


TABLE    OF   CONTENTS 


XX111 


tion  of  Rates  —  Mileage 
Tickets  —  Discrimination 
— Due  Process  of  Law — 
Equal  Protection  of  the 
Laws. 
§  412.  Right  of  Carrier  to  Fix  Rates 
—To  What  Extent  Leg- 
islative Power  Affected 
Thereby  —  Exemptions  — 
Right  to  Create  Railroad 
Commission  —  Power  to 
Amend,  etc.,  Successor 
Company  —  Obligation  of 
Contracts. 


413.  Right  of  Carrier  to  Fix  Rates 

— Basis  Upon  Which  Fixed. 

414.  Right  of  Carrier  to  Fix  Rates 

in  Competition — Long  and 
Short  Hauls — Discrimina- 
tion. 

415.  Right  of  Carrier  to  Fix  Rates 

in  Competition  Continued 
—  Interstate  Commerce  — 
Presumption  of  Good  Faith 
— Discrimination. 

416.  Railroad    Rates  —  Excessive 

Penalties — Equal  Protec- 
tion of  Law. 


CHAPTER  XXIV. 


TAXATION      OF    FRANCHISES. 


§  417.  Taxation — Power  of  State — ■ 
Limitations  Thereon — Con- 
stitutional Law  —  General 
Principles. 

418.  Federal  Franchises — Agencies 

of  the  Federal  Government 
— State  Taxation  of. 

419.  Power  of  States  to  Tax  Cor- 

porations —  Agencies  of 
Federal  Government — In- 
terstate Commerce. 

420.  Same   Subject  —  Application 

of  Principles — Illustrative 
Decisions. 

421.  Diversity,     Uniformity     and 

Equality  of  Taxation. 

422.  Uniformity  and   Equality  of 

Taxation  —  Constitutional 
Law — Board  of  Equaliza- 
tion —  Illegal  Discrimina- 
tion —  Jurisdiction  in  Eq- 
uity. 

423.  To  What  Extent  Franchises 

Taxable — Generally. 

424.  Same  Subject. 

425.  Franchise  Tax — Capital  Stock 

— Meaning  of  Terms — Na- 
ture of  Tax — Construction 
of  Statute. 


426.  State    Taxation  —  Franchise 

Assessment  s — Capital 
Stock — Constitutional  Law 
— Remedy. 

427.  Franchise  Tax — Capital  Stock 

—  Gross  Receipts  —  Addi- 
tional Franchise  —  Inter- 
state Commerce. 

428.  Franchise    Tax — Capital 

Stock— Who  Liable— Gen- 
erally. 

429.  Franchise      Tax   —   Capital 

Stock — Who  not  Liable — 
Generally. 

430.  Taxation  of  Intangible  Prop- 

erty of  Interstate  Bridge — 
Constitutional  Law. 

431.  Taxation  of  Ferry  Franchise 

— Legal  Situs  of  Property 
— Constitutional  Law. 

432.  P>anchise     Tax  —  Telegraph 

Companies — Constitutional 
Law. 

433.  Franchise  Tax — Tax  on  Gross 

Receipts — Street  Railroads. 

434.  Franchise  Tax — Water  Com- 

panies. 

435.  Franchise   Tax — Gross      Re- 

ceipts —  Dividends  —  Gas 


XXIV 


TABLE    OF   CONTENTS 


and  Electric  Light  and 
Power  Companies. 

436.  Franchise     Tax  —  Insurance 

Companies. 

437.  Franchise  Tax — Guaranty  or 

Security  Company — Trust 
Company. 

438.  Franchise    Tax    —    Savings 

Banks. 

439.  Franchise     Tax  —  National 

Banks. 

440.  Capital  Stock — Tangible  and 

Intangible  Property  — 
Franchises — Situs  of,  for 
Taxation. 

441.  Franchise  Tax — What  Is  In- 

cluded as  Capital  Stock — 
Exempt  Property. 

442.  Franchise  Tax — What  Is  not 

Included  as  Capital  Stock. 

443.  Exemption  s — Tax  Upon 

State  Banks  in  Which  Uni- 
ted States  Securities  are  In- 
cluded. 

444.  Special     Franchises  —  Taxa- 

tion. 

445.  Franchises — Exemption  from 

Tax  on  Capital  Stock. 

446.  Franchise       Tax   —   Capital 

Stock,  etc.  —  Valuation  — 
Basis  of  Computation. 

447.  Franchise       Tax   —  Capital 

Stock,  etc.  —  Valuation  — 
Basis  of  Computation  Con- 
tinued. 

448.  Franchise      Tax   —    Capital 

Stock,  etc. — Valuation  — 
Basis  of  Computation  — 
Continued. 

449.  Franchise       Tax   —  Capital 


Stock,   etc.  —  Valuation  — 
Basis     of     Computation — 
Deductions. 
§  450.  Value  of  Special  Franchise. 

451.  Deduction    from    Special 

Franchise  Tax. 

452.  Exemption      or      Immunity 

from  Taxation  —  Whether 
a  Franchise  or  Privilege. 

453.  Power  to  Exempt  from  Tax- 

ation— State,  Municipality 
and  Board  of  Assessment — 
Local  Taxation. 

454.  Duration  and  Extent  of  Ex- 

emption from  Taxation. 

455.  Surrender  of  Power  of  Taxa- 

tion— Presumptions  —  Ex- 
emption from  Taxation  — 
Statutory  Construction. 

456.  Constitutional  Law — Validity 

of  Exemption  from  Taxa- 
tion. 

457.  Obligation  of  Contracts — Ex- 

emption from  Taxation — 
Preliminary  Statement. 

458.  Obligation  of  Contract — Res- 

ervation of  Power  to  Alter, 
Amend  or  Repeal  —  Ex- 
emption from  Taxation. 

459.  Obligation      of      Contracts — 

What  Is  a  Contract — Ex- 
emption from  Taxation. 

460.  Obligation     of     Contracts — 

What  Is  not  a  Contract  — 
Exemption  from  Taxation. 

461.  Obligation    of    Contracts  — 

Reservation  of  Power  to 
Alter,  etc. — Exemption 
from  Taxation  —  Res  ad- 
judicate. 


CHAPTER  XXV. 

ALIENATION   AND   FORFEITURE. 

462.  Power  to  Alienate  Franchises    §  463.  Power  to  Alienate  Franchises 
— Nature   of   Franchise   as  — General  Rule. 

Affecting.  464.  Same  Subject — Basis  of  Rule. 


TABLE    OF   CONTENTS 


XXV 


465.  Power  to  Alienate  Franchises 

—  Legislative  Authoriza- 
tion. 

466.  Power  to  Alienate  Franchises 

—  Legislative  Authoriza- 
tion Continued. 

467.  Power  to  Alienate  Franchises 

— Implied  Legislative  Au- 
thorization — Presumptions 
— Construction  of  Statutes. 

468.  Power  to  Alienate  Franchises 

— Railroad  Companies. 

469.  Power  to  Alienate  Franchises 

—  Banks — Street  Railway 
C  o  m  p  a  n  i  e  s — Telegraph 
Lines. 

470.  Power  to  Alienate  Franchises 

—  Water  and  Irrigation 
Companies. 

471.  Power  to  Mortgage. 

472.  Power  to  Make  and  Take  a 

Lease — Railroad  Companies 

—  Natural  Gas,  Gas  and 
Electric  Companies. 

473.  Illegal  or  Ultra  Vires  Lease — 

Ratification  —  Estoppel  — 
Equity  —  Validating  Stat- 
ute. 

474.  Power  to  Assign  Franchises. 

475.  Assignment  of  Franchises  of 

Insolvent  Bankrupt  Corpo- 
ration— What  Passes. 

476.  Power  to  Purchase. 

477.  Judicial  Sales — Decree — Gen- 

erally. 

478.  Judicial  Sales  —  What  Does 

and  Does  not  Pass  —  Pur- 
chasers' Rights  and  Obliga- 
tions. 

479.  Exemption  or  Immunity  from 

Taxation  or  Governmental 
Regulation — Not  Transfer- 


able Unless  Expressly  Au- 
thorized by  State. 

480.  Exemption  or  Immunity  from 

Taxation,  etc.,  Continued 
— Judicial  Sale — Sale  Un- 
der Mortgage  or  Statutory 
Lien. 

481.  Exemption  or  Immunity  from 

Taxation,  etc.,  Continued 
— Whether  Passes  on  Con- 
solidation of  Corporations. 

482.  Same    Subject  —  When    Ex- 

emption Does  and  Does 
not  Pass — Illustrative  De- 
cisions. 

483.  Exemption  or  Immunity  from 

Taxation,  etc. — Rule  as  to 
Effect  of  Reservation  of 
Power  to  Alter,  Amend  or 
Repeal. 

484.  Same    Subject  —  Illustrative 

Decisions. 

485.  Forfeiture  of  Franchise — Leg- 

islative Power  as  to. 

486.  Forfeiture  of  Franchise — Ju- 

dicial Determination  of — 
Quo  Warranto — State  Offi- 
cial— Ipso  Facto  Forfeit- 
ure. 

487.  Courts  Reluctant  to  Adjudge 

Forfeitures  and  Will  Pro- 
ceed with  Caution. 

488.  Forfeiture     of    Franchise  — 

Abuse,  Misuser  or  Non- 
user  of  Corporate  Powers. 

489.  Nature  and   Extent  of   Mis- 

user or  Nonuser  Justifying 
Forfeiture. 

490.  When  Franchise  Will  Be  For- 

feited— Instances. 

491.  When  Franchise  Will  not  Be 

Forfeited — Instances . 


XXVI 


TABLE    OF   CONTENTS 


APPENDIX  A. 
PUBLIC  SERVICE  COMMISSIONS  LAW  OF  NEW  YORK. 

ARTICLE  I. 


PUBLIC    SERVICE   COMMISSIONS;    GENERAL  PROVISIONS. 


1.  Short  Title. 

2.  Definitions. 

3.  Public  Service  Districts. 

4.  Commissions  Established;  Ap- 

pointment; Removal;  Terms 
of  Office. 

5.  Jurisdiction  of  Commissions. 

6.  Counsel  to  the  Commissions. 

7.  Secretary  to  the  Commissions. 
S.  Additional    Officers    and   Em- 
ployees. 

9.  Oath  of  Office;   Eligibility  of 
Commissioners  and  Officers. 
Offices  of  Commissions;  Meet- 
ings; Official  Seal;   Station- 
ery. 
Quorum;  Powers  of  a  Commis- 
sioner. 
12.  Counsel   to  the  Commissions; 
Duties. 


10 


11 


13.  Salaries  and  Expenses. 

14.  Payment  of  Salaries  and  Ex- 

penses. 

15.  Certain  Acts  Prohibited. 

16.  Annual    Report    of    Commis- 

sions. 

1 7.  Certified     Copies     of      Papers 

Filed  to  Be  Evidence. 

18.  Fees  to  Be  Charged  and  Col- 

lected by  the  Commissions. 

19.  Attendance  of   Witnesses   and 

Their  Fees. 

20.  Practice   Before  the  Commis- 

sions;   Immunity    of    Wit- 
nesses. 

21.  Court     Proceedings;      Prefer- 

ence. 

22.  Rehearing     Before      Commis- 

sion. 

23.  Service  and  Effect  of  Orders. 


ARTICLE  II. 


PROVISIONS  RELATING  TO   RAILROADS,    STREET  RAILROADS    AND 
COMMON   CARRIERS. 

§  25.  Application  of  Article.  §  29.  Changes   in    Schedule;    Notice 

26.  Adequate    Service;    Just    and  Required. 

Reasonable  Charges.  30.  Concurrence   in   Joint  Tariffs; 

27.  Switch    and    Side-track    Con-  Contracts,     Agreements     or 

nections;  Powers  of  Commis-  Arrangements  Between  any 

sions.  Carriers. 

28.  Tariff  Schedules;  Publication,       31.  Unjust  Discrimination. 


TABLE    OF    CONTENTS 


XXV11 


32.  Unreasonable  Preference.  §   36. 

33.  Transportation  Prohibited  Un-        37. 

til  Publication  of  Schedules;        38. 
Rates     as      Fixed      to     Be 
Charged;  Passes  Prohibited.        39. 

34.  False  Billing,  etc.,  by  Carrier        40. 

qr  Shipper. 

35.  Discrimination         Prohibited; 

Connecting  Lines. 


Long  and  Short  Haul. 

Distribution  of  Cars. 

Liability  for  Damage  to  Prop- 
erty in  Transit. 

Continuous   Carriage. 

Liability  for  Loss  or  Damage 
by  Violation  of  This  Act. 


ARTICLE  III. 


PROVISIONS  RELATING  TO  THE  POWERS  OF  THE  COMMISSIONS  IN 
RESPECT  TO  COMMON  CARRIERS,  RAILROADS  AND  STREET 
RAILROADS. 


§  45. 


46. 


47. 
48. 
49. 

50. 

51. 


General  Powers  and  Duties  of 
Commissions  in  Respect  to 
Common  Carriers,  Railroads 
and  Street  Railroads. 

Reports  of  Common  Carriers, 
Railroad  Corporations  and 
Street  Railroad  Corpora- 
tions. 

Investigation  of  Accidents. 

Investigations  by  Commission. 

Rates  and  Service  to  Be  Fixed 
by  the  Commissions. 

Power  of  Commissions  to  Order 
Repairs  or  Changes. 

Power  of  Commissions  to  Order 
Changes  in  Time  Schedules; 
Running  of  Additional  Cars 
and  Trains. 


52.  Uniform  System  of  Accounts; 

Access    to    Accounts,    etc.; 

Forfeitures. 
Franchises  and  Privileges. 
Transfer     of     Franchises      or 

Stocks. 
Approval   of  Issues  of  Stock, 

Bonds  and  Other  Forms  of 

Indebtedness. 
Forfeiture;  Penalties. 
Summary  Proceedings. 
Penalties  for  Other  Than  Com- 
mon Carriers. 
Action  to  Recover  Penalties  or 

Forfeitures. 
Duties   of  Commissions  as  to 

Interstate  Traffic. 


57 
58 

59 

60 


ARTICLE  IV. 

PROVISIONS  RELATING  TO  GAS  AND  ELECTRICAL  CORPORATIONS; 
REGULATION   OF  PRICE  OF  GAS  AND  ELECTRICITY. 

5  65.  Application  of  Articles.   '  §  67.  Inspection  of  Gas  and  Electric 

66.  General    Powers    of    Commis-  Meters. 

sions  in  Respect  to  Gas  and  68.  Approval  of  Incorporation  and 

Electricity.  Franchises;  Certificate. 


XXV111 


TABLE    OF   CONTENTS 


69  Approval  of  Issue  of  Stock, 
Bonds  and  Other  Forms  of 
Indebtedness. 

70.  Approval  of  Transfer  of  Fran- 

chises. 

71.  Complaints  as  to  Quality  and 

Price  of  Gas  and  Electricity; 
Investigation  by  Commis- 
sion; Forms  of  Complaints. 

72.  Notice    and    Hearing;    Order 


Fixing  Price  of  Gas  or  Elec- 
tricity,   or    Requiring    Im- 
provements. 
§  73.  Forfeiture  for  Noncompliance 
With  Order. 

74.  Summary  Proceedings. 

75.  Defense  in  Case  of  Excessive 

Charge  for  Gas  or  Electricity. 

76.  Jurisdiction. 

77.  Powers  of  Local  Officers. 


ARTICLE  V. 


COMMISSIONS    AND    OFFICES    ABOLISHED;    SAVING    CLAUSE> 

REPEAL. 


§  80 


81 


Board  of  Railroad  Commis- 
sioners Abolished;  Effect 
Thereof. 

Commission  of  Gas  and  Elec- 
tricity Abolished;  Effect 
Thereof. 

82.  Inspector  of  Gas  Meters  Abol- 

ished; Effect  Thereof. 

83.  Board  of  Rapid  Transit  Rail- 


road   Commissioners    Abol- 
ished; Effect  Thereof. 
§  84.  Transfer  of  Records. 

85.  Pending  Actions  and  Proceed- 

ings. 

86.  Construction. 

87.  Repeal. 

88.  Appropriation. 

89.  Time  of  Taking  Effect. 


APPENDIX  B. 

PUBLIC  UTILITY  LAW  OF  WISCONSIN. 

Giving  the  Wisconsin  Railroad  Commission  Jurisdiction  Over 
Public  Utilities. 


§  1797m— 1 


1797m— 2 


1797m— 3 


1797m— 4 


Public  Utility  Law: 
definitions;  "public 
utility,"  "municipal 
council,"  "munici- 
pality," "service," 
"indeterminate  per- 
mit," "  commission." 

Railroad  commission's 
powers. 

Utility  charges  to  be 
reasonable  and  just. 

Facilities  to  be  granted 


to     other     utilities; 
complaint    and    ap- 
peal. 
§  1797m — 5     Utility  property;  valu- 
ation. 

1797m — 6  Valuation;  commis- 
sion's hearing  and 
report. 

1797m — 7     Revaluation. 

1797m — 8  Uniform  accounting  by 
utilities;  other  busi- 
ness separate. 


TABLE    OF   CONTENTS 


XXIX 


§   1797m— 9     Forms  of  bookkeeping;  §  1797m— 30 

prescription.  1797m — 31 
1797m— 10  Blanks. 

1797m — 11  No  other  books,  etc.,  to  1797m — 32 
be  kept  than  those 
prescribed     or     ap-  1797m — 33 
proved  by  commis- 
sion. 1797m— 34 
1797m — 12  Books:    office    for;    no 

removal  from  State.  1797m — 35 
1797m — 13  Balance     sheets     filed 

annually.  1797m— 36 
1797m — 14  Audit  and  inspection. 
1797m — 15  Depreciation  rates  and  1797m — 37 
accounts;      commis- 
sion's rules;  depreci-  1797m — 38 
ation  fund  and  use 
thereof.  1797m— 39 
1797m — 16  New  constructions;  ac- 
counting. 1797m — 40 
1797m — 17  Profit-sharing  and  slid- 
ing scales;  when  and  1797m — 41 
while  commission  ap- 
proves. 1797m — 42 
1797m— 18  Report     by     utilities; 

items.  1797m — 43 
1797m — 19  Commission's    reports, 

annual    and    other;  1797m — 44 

values  shown.  1797m — 45 
1797m — 20  Commission's    records 

public.  1797m — 46 
1797m — 21  Temporary  secrecy. 

1797m— 22  Units   of   products   or  1797m— 47 

service. 

1797m— 23  Standard         measure-  1797m — 48 
ments;  accurate  ap- 
pliances. 

1797m — 24  Tests  of  measuring  in-  1797m — 49 

struments;  fees. 

1797m— 25  Public   equipment   for  1797m— 50 

tests. 
1797m — 26  Entry  upon  premises.  1797m — 51 
1797m— 27  Publicity  of  rate  sched- 
ules. 1797m— 52 
1797m — 28  Publicity  of  rules  and 

regulations.  1797m — 53 
1797m — 29  Files  accessible  to  pub- 
he. 


Publicity  of  joint  rates. 
Changes  of  rates;  ten 

days'  notice. 
Publicity     of     revised 

schedules. 
Unlawful     to     depart 

from  schedules. 
Schedules'   forms  pre- 
scribed. 
Classification  of  utility 

service. 
Commission's  rules  of 

procedure. 
Business  management; 

inquiries. 
Books    subject   to   in- 
spection. 
Judicial  process  to  ob- 
tain papers. 
Commission's  em- 

ployees. 
Agents      of      commis- 
sions; powers. 
Response  of  utilities  to 

commission's  calls. 
Complaint  by  consum- 
ers. 
Hearing  on  complaint. 
Ten    days'    notice    of 

hearing. 
Commission  to  fix  rates 

and  regulations. 
Costs      of      investiga- 
tion. 
Separate  rate  hearing; 
absence     of     direct 
damage. 
Summary       investiga- 
tions. 
Followed    by    general 

hearings. 
Hearings;  notices  and 

procedure. 
Utilities      may     com- 
plain. 
Evidences     and     wit- 
nesses;   proceedings 
for  contempt. 


XXX 


TABLE    OF   CONTENTS 


§   1797m— 54 

1797m— 55 
1797m— 56 
1797m— 57 


1797m— 58 

1797m— 59 
1797m— 60 


1797m— 61 
1797m— 62 
1797m— 63 

1797m— 64 

1797m— 65 

1797m— 66 
1797m— 67 

1797m— 68 


1797m— 69 


Witness  fees  and  mile- 
age.   . 

Depositions. 

Stenographic  records. 

In  court  actions,  com- 
mission to  file  tes- 
timony. 

Certified  transcripts  of 
testimony  as  evi- 
dence. 

Free  transcripts  for 
parties. 

Commission  to  deter- 
mine rates  and  regu- 
lations ;  utility  at 
fault  to  pay  costs; 
orders,  service  and 
effect. 

Utilities  to  conform  to 
order  made. 

Commission  may 
change  orders. 

Findings  of  commis- 
sion prima  facie  law- 
ful and  reasonable. 

Utility  dissatisfied  with 
order  of  commission; 
action  to  set  aside; 
precedence  on  calen- 
dar. 

Action  to  set  aside  or- 
der of  commission, 
ninety  days  for. 

Injunction  procedure; 
order  of  commission. 

New  evidence  before 
court ;  stay  while 
commission  recon- 
siders. 

Upon  commission's 
refinding,  rescission, 
alteration  or  amend- 
ment of  order;  judg- 
ment on  original  or- 
der; conclusion  of 
trial. 

Appeal  to  supreme 
court. 


1797m — 70  Burden  of  proof. 

1797m — 71  Court  procedure;  ser- 
vice of  process; 
evidence;  powers 
and  compensation  of 
sheriff  and  other  offi- 
cers. 

1797m — 72  Incriminating  evi- 
dence; production  of 
books,  accounts  and 
papers. 

1797m — 73  Distribution  of  orders 
of  commission;  or- 
ders as  prima  facie 
evidence. 

1797m — 74  Competition  of  utili- 
ties, municipalities 
and  others. 

1797m — 75  Foreign  utilities  ex- 
cluded. 

1797m — 76  Grants  hereafter  to  be 
indeterminate ;  mu- 
nicipal acquisi- 
tion. 

1797m — 77  Voluntary  change  to 
indeterminate  plan; 
contract  waiver  im- 
plied. 

1797m — 78  Grant  hereafter;  im- 
plied consent  and 
waiver. 

1797m — 79  Municipal  powers  un- 
der utility  law. 

1797m — 80  Plants  non-existing, 
municipality'saction 
to  acquire. 

1797m — 81  Under  indeterminate 
permit ;  municipal- 
ity's notice  for  ac- 
quisition. 

1797m — 82  Compensation  for 
property  taken  of 
public  utility  to  be 
determined  by  com- 
mission and  certi- 
fied; public  hearing; 
notice;  filing  certifi- 
cate. 


TABLE    OF    CONTENTS 


XXXI 


1797m- 
1797m- 

1797m— 

1797m— 

1797m- 


1797m — 83  Appeal  to  court  from    §   1797m — ! 
compensation  order. 

1797m — 84  If  decision  for  commis- 
sion, 

1797m — 85  If  decision  for  utility. 

1797m — 86  Reconsideration  of,  or 
rehearing  as  to  com- 
pensation ;  alteration 
or  amendment  of 
previous  order. 

1797m — 87  Power  of  municipal 
council  to  regulate 
utilities;  appeal. 

1797m — 88  Franks  and  privileges 
to  political  commit- 
tees and  candidates; 
penalty. 

1797m — 89  Unjust  discrimina- 
tions; definition  and 
penalty. 

1797m — 90  Facilities  by  public 
utilities,  in  exchange 
for  compensation 
prohibited ;  excep- 
tions or  qualifica- 
tions. 

1797m — 91  Undue  preference  or 
prejudice  by  public 
utility;  penalty. 

1797m — 92  Rebates,  concessions 
and  discriminations 
unlawful;  penalty. 

1797m— 93  Utility's  liability  for 
damages;  treble 
damages. 

1797m — 94  Information,  papers 
and  accounting;  of- 
ficers, agents  or  em- 
ployee's of  utilities; 
delinquency  penal. 

1797m — 95  Violations  by  utilities 
in  general,  penalty; 
utility  responsible 
for  agents. 

1797m — 96  Municipal  officers'  de- 
linquency penal. 


1797m- 


1797m- 


1797m- 


1797m- 


1797m- 
1797m- 


97  Interference  with  com- 
mission's equipment 
penal. 

98  Every  day's  violations 
distinct. 

99  Temporary  alteration 
or  suspension  of 
rates. 

100  Followed  by  perma- 
nent rate  regula- 
tion. 

101  Lives  lost;  utility 
must  report;  inves- 
tigation. 

102  Law  enforcing  power 
of  commission;  at- 
torney general's  or 
district  attorney's 
aid  in  prosecution; 
suit  to  recover  for- 
feiture or  penalty; 
suit  in  name  of 
State,  in  specified 
court;  power  to  em- 
ploy counsel. 

103  Commission's  work; 
rules,  orders,  acts 
and  regulations  of; 
technical  omissions 
not  to  invalidate. 

104  Other  rights  of  ac- 
tion ;  release  or 
waiver;  penalties 
cumulative. 

105  Rates  of  April  1, 
1907,  to  govern, 
unless;  reports 
thereof;  proceed- 
ings to  change. 

106  Employee's  of  com- 
mission, and  their 
compensation. 

•107  Appropriation. 
•108  Conflicting    laws    re- 
pealed. 


XXX11  TABLE    OF   CONTENTS 

APPENDIX  C. 
WILLCOX  v.  CONSOLIDATED  GAS  CO. 

212  U.  S.   19. 

[January  4,  1909.] 

Headnotes.  Opinion. 

Statement  of  Case. 


TABLE  OF  CASES  CITED. 


Abbotsford,  The,  98  U.  S.  440,  §  267. 
Abbott  v.  City  of  Duluth,  104  Fed. 

833,  §§  311,  313. 
Abbott  v.   Omaha  Smelting  Co.,   4 

Neb.  416,  §  2. 
Aberdeen  Bank  v.  Chehalis  County, 

166  U.  S.  440,  §  439. 
Acker  v.  Alexandria  &  F.  R.  Co.,  84 

Va.  648,  §  464. 
Ackerman  v.  Cincinnati  S.  &  M.  R. 

Co.  (Mich.),  12  Det.  L   News,  908, 

§464. 
Acme  Dairy  Co.  v.  City  of  Astoria 

(Oreg.),  90  Pac.  153,  §§  205,  209, 

225. 
Adams  v.  Bank  of  Oxford,  78  Miss. 

532,  §  421. 
Adams  v.  Dendy,  82  Minn.  135,  §  215. 
Adams  v.  Grand  Island  &  W.  C.  R. 

Co.,  10  S.  Dak.  239,  §  269. 
Adams  v.  Kuykendale  (Miss.),  35  So. 

830,  §  456. 
Adams  v.  New  York,  192  U.  S.  585, 

§273. 
Adams  v.  Yazoo  &  Miss.  Valley  R. 

Co.,  77  Miss.  194,  §§  12,  20,  481. 
Adams    Express    Co.    v.    Kentucky 

(Weir  v.  Norman),  166  U.  S.  171, 

§§  9,  420,  421,  423. 
Adams  Express  Co.  v.  Ohio,  165  U.  S. 

194,  §§  419,  420,  426,  432. 
Adams   Express   Co.    v.   Ohio   State 

Auditor,  166  U.  S.  185,  §§  8,  12,  39, 

67,   358,   359,  419,  423,  425,  440, 

448. 
Adams  Express  Co.  v.  Railroad  Co. 

(U.  S.  C.  C),  8  Am.  &  Eng.  Rd. 

Cas.  591,  §  79. 

ill 


Addyston  Pipe  &  Steel  Co.  v.  United 

States,  175  U.  S.  211,  §§  368,  370, 

404. 
Adee  v.  Nassau  Elect.  Rd.  Co.,  76 

N.  Y.  Supp.  589,  §  344. 
Adee  v.   Nassau  Elect.  Rd.  Co.,   72 

N.  Y.  Supp.  992,   §§  14,  48,   111, 

148. 
Adirondack  Ry.   Co.   v.   New  York, 

176  U.  S.  335,  §  332. 
Adler- Weinberger  S.  S.  Co.  v.  Roths- 
child &  Co.,  123  Fed.  145,  §  87. 
.Etna   Life   Ins.   Co.   v.   Coulter,    25 

Ky.  L.  Rep.  193,  §§  436,  437. 
Africa    v.    Knoxville,    70    Fed.    729, 

§488. 
Agua  Pura  Co.  of  Las  Vegas  v.  City 

of  Las  Vegas  (Cal.),  60  Pac.  208, 

§  186. 
Aiken   v.    Columbus,    167    Ind.    139, 

§56. 
Aiken  v.  Western  Rd.  Corp.,  30  Barb. 

(N.  Y.)  305,  §  15. 
Akin.     See  Aiken. 
Alabama  &  F.  R.  Co.  v.  Burkett,  46 

Ala.  569,  §  311. 
Albany  Mutual  Bldg.  Assoc,  v.  City 

of  Laramie,  10  Wryo.  54,  §  71. 
Alberts   v.    City    of    Muskegan,    146 

Mich.  210,  §  56. 
Albrccht  v.  Milwaukee  &  S.  R.  Co., 

94  Wis.  397,  §  284. 
Albright  v.  Fisher,  164  Mo.  56,  §  184. 
Aldnutt  v.  Inglis,  12  East,  527,  §  391. 
Aldridge  v.  Tuscumbia  P.  &  D.  R. 

Co.,  2  Stew.  &  P.  (Ala.)  199,  §311. 
Aldridge    v.    Williams,    3    How.    (44 

U.  S.)  9,  §  262. 
Alexander    v.    People,    7    Colo.    155, 

§  205. 

xxxi  ii 


XXXIV 


TABLE    OF   CASES   CITED 


Alexandria,  Warsaw  &  Keokuk  Ferry 

Co.  v.  Wisch,  73  Mo.  655,  §  15. 
Allbright  v.   Payne,  43  Ohio  St.  8, 

§248. 
Allbyer  v.  State,   10  Ohio  St.  588, 

§215. 
Allegheny    County    v.    McKeesport 

Diamond    Market,    123    Pa.    164, 

§§  62,  92,  132. 
Allen  v.  Allegheny  County,  196  U.  S. 

458,  §  354. 
Allen  v.  Clausen,  114  Wis.  244,  §  344. 
Allen  v.  Clayton,  63  Iowa,  11,  §  216. 
Allen  v.  Long,  80  Tex.  261,  §  52. 
Allen   v.   Louisiana,    103   U.   S.   90, 

§234. 
Allen  v.  McKeen,   1   Summer,   276, 

§61. 
Allen  v.  Myers,  1  Alaska,  114,  §  130. 
Allen  v.   Pullman's  Palace  Car  Co., 

191  U.  S.  171,  §  356. 
Allen  v.  Pullman's  Palace  Car  Co., 

139  U.  S.  658,  §  422. 
Allen  v.  Reed,  10  Okla.  105,  §  130. 
Allgeyer  v.  Louisiana,  165  U.  S.  578, 

§§  299,  354,  366. 
Allison    v.    Southern    Ry.    Co.,    129 

N.  Car.  336,  §  67. 
Almand  v.  Atlanta  Consol.  St.  Ry. 

Co.,  108  Ga.  417,  §  379. 
Alpena  Electric  Co.  v.  City  of  Alpena, 

130  Mich.  413,  §  390. 
Alsop  v.  Southern  Express  Co.,  104 

N.  Car.  278,  §  79. 
American  Ins.  Co.  v.  Canter,  1  Pet. 

(26  U.  S.  511),  §  139. 
American  Loan  &  Trust  Co.  v.  Gen- 
eral Electric   Co.,   71    N.  H.   192, 

§76. 
American    Mail    Steamship    Co.    v. 

Crowell  (N.  J.),  68  Atl.  752,  §  440. 
American    Mutoscope    Co.    v.    State 

Board  of  Assessors  (N.  J.  Sup.),  56 

Atl.  369,  §  441. 
American  Nat.  Bank  v.  Morey,   24 

Ky.  L.  Rep.  658,  §  69. 
American    Order   Scottish    Clans    v. 

Merrill,  151  Mass.  558,  §  11. 


American  Rapid  Teleg.  Co.  v.  Hess, 

125  N.  Y.  641,  §§  191,  298. 
American  Steel  &  Wire  Co.  v.  Speed, 

192  U.  S.  500,  §§  272,  404. 
American  Steel  &  Wire  Co.  v.  Wire 

Drawers  &  Die  Makers  Union,  90 

Fed.  598,  §  52. 
American  Surety  Co.  v.  The  Great 

White  Spirit  Co.,  58  N.  J.  Eq.  526, 

§245. 
American  Union  Teleg.  Co.  v.  West- 
ern Union  Teleg.  Co.,  67  Ala.  26, 

§§  67,  236,  266. 
Ames  v.  People,  26  Colo.  83,  §  448. 
Ames  v.   Union  Pacific  R.  Co.,   64 

Fed.  165,  §  390. 
Ames  v.   Union  Pacific  R.  Co.,   62 

Fed.  7,  §  51. 
Amet  v.  Texas  &  Pacific  Ry.  Co.,  117 

La.  454,  §  241. 
Amsterdam,  City  of,  v.  Fonda,  J.  & 

Y.  R.  Co.,  101  N.  Y.  Supp.  694, 

§387. 
Ancient  Order  of  Hibernians  v.  Spar- 
row, 29  Mont.  132,  §  269. 
Andel  v.  People,  106  111.  App.  558, 

§  236. 
Anderson  v.  Baker,  23  Md.  531,  §  21. 
Anderson  v.  Cincinnati  S.  R.  Co.,  86 

Ky.  44,  §  464. 
Anderson  v.  Manchester  Fire  Assur. 

Co.,  59  Minn.  182,  §  163. 
Anderson  v.  Tyree,  12  Utah,  129,  §  21. 
Andrews  v.  National  Foundry  &  Pipe 

Works,  Lim.,  61  Fed.  782,  §§  16, 

1S5,  187. 
Andrews  v.  People,  173  111.  123,  §  269. 
Andrews  Bros.  v.  Youngstown  Coke 

Co.,  86  Fed.  585,  §§  50,  51,  52. 
Angle  v.   Chicago,  St.   Paul,  Minne- 
apolis &  Omaha  Ry.  Co.,  151  U.  S. 

1,  §  136. 
Anglo-American     Provision    Co.    v. 

Davis   Provision  Co.,    169   N.   Y. 

506,  §  51. 
Anglo-American    Provision    Co.    v. 

Davis    Provision    Co.,    63    N.    Y. 

Supp.  987,  §  293. 


TABLE    OF   CASES    CITED 


XXXV 


Appeal  of.    See  name  of  party. 
Appeal  Tax  Court  v.  Union  R.  Co.,  50 

Md.  274,  §  423. 
Arapahoe  County  v.  Rocky  Mountain 

News  Printing  Co.,  15  Colo.  App. 

189,  §§  1,  12. 
Areata  v.  Areata  &  M.  R.  Co.,  92  Cal. 

639,  §§486,  491. 
Archbald  v.  Carbondale  Traction  Co., 

3  Pa.  Dist.  R.  751,  §  485. 
Archer  v.  Board  of  Levee  Inspectors 

of  Chicot  County,   128  Fed.   125, 

§52. 
Archer  v.   Ellison,   28  S.   Car.   238, 

§248. 
Ardry  v.  Ardry,  16  La.  264,  §  239. 
Arkansas,  L.  &  T.  Ry.  Co.  v.  Ken- 
nedy (Ark.,  1907),  105  S.  W.  885, 

§233. 
Arkansas  Southern  Ry.  Co.  v.  Ger- 
man National  Bank,  207  U.  S.  270, 

§273. 
Armour   Packing  Co.   v.   Lacy,   200 

U.  S.  226,  §§  277,  361. 
Armour     Packing     Co.     v.     United 

States,  209  U.  S.  56,  §  415. 
Arnold    v.    Covington    &    Cincinnati 

Bridge  Co.,  1  Duv.  (62  Ky.)  372, 

§70. 
Arnold   v.   Mundy,   6  N.   J.   L.   87, 

§§  10,  21. 
Arthur  v.  Dodge,  101  U.  S.  34,  §  270. 
Arthur  v.  Horner,  96  U.  S.  137,  §  282. 
Asbell  v.  Kansas,  209  U.  S.  251,  §  373. 
Ashby  v.  White,  2  Ld.  Raym.  938, 

§21. 
Asher  v.  Texas,  128  U.  S.  129,  §  360. 
Ashley  v.  Ryan,  153  U.  S.  436,  §§  3, 

359,  426. 
Askew  v.  Hale  County,  54  Ala.  639, 

§51. 
Aspinwall  v.  County  of  Daviess,  22 

How.  (63  U.  S.)  364,  §  316. 
Assessors.     See  Board  of. 
Associates    of    The    Jersey    Co.    v. 

Davison.  2  N.J.  L.  U5,  §  239. 
Atchison  Street   Ry    Co.  v.   Missouri 

Pac.  Ry.  Co.,  31  Kan.  661,  §  L85. 


Atchison,  Topeka  &  S.  F.  Ry.  Co.  v. 
Clark,  60  Kan.  83,  §  421. 

Atchison,  Topeka  &  Santa  Fe  Ry. 
Co.,  v.  Denver  &  N.  O.  R.  Co.,  110 
U.  S.  667,  §§  227,  381. 

Atkin  v.  Kansas,  191  U.  S.  207, 
§§  298,  343. 

Atkins  v.  Disintegrating  Co.,  18  Wall. 
(85  U.  S.)  272,  §  236. 

Atkinson  v.  Tennill,  14  Ky.  L.  Rep. 
922,  §  348. 

Atlantic  &  B.  Ry.  Co.  v.  City  of 
Cordele,  125  Ga.  373,  §  386. 

Atlantic  &  Gulf  R.  Co.  v.  Georgia,  98 
U.  S.  359,  §§  5,  12. 

Atlantic  &  Pacific  R.  Co.  v.  City  of 
St.  Louis,  66  Mo.  228,  §  215. 

Atlantic  &  Pacific  R.  Co.  v.  Lesuer 
(Ariz.),  19  Pac.  157,  §  418. 

Atlantic  &  Pacific  R.  Co.  v.  Mingus, 
165  U.  S.  413. 

Atlantic  &  Pacific  Teleg.  Co.  v.  Phila- 
delphia, 190  U.  S.  160,  §§  356,  360, 
419. 

Atlantic,  City  of,  v.  Gate  City  Gas 
Light  Co.,  71  Ga.  106,  §  349. 

Atlantic  City  Waterworks  Co.  v.  Con- 
sumers' Water  Co.,  44  N.  J.  Eq. 
427,  §§  231,  282. 

Atlantic  Coast  Line  Rd.  Co.  v.  Braz- 
ley  (Fla.,  1908),  45  So.  761,  §  269. 
Atlantic  Coast  Line  Rd.  Co.  v.  Flor- 
ida, 203   U.  S.  256,  §§  167,  381, 
408. 
Atlantic  Coast  Line  Rd.  Co.  v.  North 
Carolina  Corporation  Commission, 
206  U.  S.   1;  see  "Appendix  C," 
herein,  §§  63,  167,  364,  381,  386, 
399,  407. 
Atlantic     Coast     Line     R.     Co.     v. 
Wharton,  207  U.  S.  328,   §§  373, 
375. 
At].,,   v.    Packet  Co.,   21   Wall.   (88 

U.S.)  389,  §  146. 
Attorney  General  v.  A.  Booth  &  Co., 

1  13  Mich.  89,  §  296. 
Attorney  General  v.  Bank  of  Char- 
lotte. .".7  N.  Car.  287,  §311. 


XXXVI 


TABLE  OF  CASES  CITED 


Attorney    General    v.    Boston,     123 

Mass.  478,  §§  15,  17,  80. 
Attorney  General  v.  Brunst,  3  Wis. 

7S7,  §§  222,  223. 
Attorney  General  v.  Chicago  North- 
western Rd.  Co.,  35  Wis.  425,  §§  8, 

31,  313,  317,  350,  400. 
Attorney  General  v.  Continental  Life 

Ins.    Co.,    53    How.    (N.    Y.)    16, 

§486. 
Attorney    General    v.    Detroit,    113 

Mich.  38S,  §  453. 
Attorney  General  v.  Mercantile  Ins. 

Co.,  121  Mass.  524,  §  53. 
Attorney  General  v.  Old  Colony  R. 

Co.,  160  Mass.  63,  §  173. 
Attorney  General  v.  Perkins  (Mason 

v.  Perkins),  73  Mich.  303,  §  41. 
Attorney    General    v.     Preston,     56 

Mich.  177,  §§  231,  289. 
Attorney  General  v.   Railway  Com- 
panies, 35  Wis.  599,  §  43. 
Attorney  General  v.  Superior  &  St. 

C.  R.  Co.,  93  Wis.  604,  §  486. 
Attorney  General  v.  Trustees  of  Brit- 
ish Museum,  2  Chan.  Div.  598,  §§1, 

10. 
Attorney  General  of  Mass.  v.  Western 

Union  Teleg.   Co.,    141   U.   S.   40, 

§  131. 
Augusta  &  S.  R.  Co.  v.  City  Council  of 

Augusta,  100  Ga.  701,  §  379. 
Augusta,  Bank  of,  v.  Earle,  13  Pet. 

(38  U.S.)  519,  §§64,67,  132. 
Aurora  &  G.  R.  Co.  v.  Harvey,  17S 

111.  477,  §  63. 
Aurora  Electric  Light  &  Power  Co.  v. 

McWethy,  104  111.  App.  479,  §  345. 
Aurora,   The,   7  Cranch   (11   U.   S.), 

382,  §  151. 
Averett  v.  Brady,  20  Ga.  523,  §  26. 
Avery  v.  Indiana  &  O.  Oil,   Gas  & 

Mining  Cov  120  Ind.  600,  §  374. 
Avon-by-the-Sea  Land   &   I.   Co.   v. 

Neptune  City  (N.  J.),  32  Atl.  220, 
§  379. 
Ayer  &  Lord  Tie  Co.  v.  Keown,  122 
Ky.  580,  §  440. 


Ayer  &  Lord  Tie  Co.  v.  Keown,  29 

Ky.  L.  Rep.  110,  §  440. 
Ayer  &  Lord  Tie  Co.  v.  Keown,  26 

Ky.  L.  Rep.  585,  §  440. 
Ayers,  In  re,  123  U.  S.  443,  §  416. 

B. 

Babcock  v.  Scranton  Traction  Co.,  1 

Lack.  L.  News,  223,  §  488. 
Backus  v.  Fort  St.  Union  Depot  Co., 

169  U.  S.  557,  §§  272,  273,  275. 
Bacon  v.  Texas,  163  U.  S.  207,  §  313. 
Bacot,  Ex  parte,  36  S.  Car.  125,  §  245. 
Bailey  v.  Commonwealth,    11    Bush 

(Ky.),688,  §§238,239. 
Bailey  v.  Fayette  Gas  Fuel  Co.  (Pa.), 

44  Wkly.  N.  C.  505,  §  83. 
Bailey  v.  Philadelphia,  W.  &  B.  R. 

Co.,  4  Har.  (Del.)  389,  §  231. 
Bailey  v.  Southern  Ry.  Co.,  112  Ky. 

424,  §§  8,  34,  466. 
Baker  v.  City  of  Pittsburg,  4  Penn. 

St.  Rep.  51,  §  21. 
Baker  v.  Grice,  169  U.  S.  2S4,  §  416. 
Baker  v.  Payne,  22  Oreg.  335,  §  249. 
Baldwin  v.  State,  Hull,  89  Md.  587, 

§440. 
Ball  v.  Rutland  R.  Co.   (C.  O),  93 

Fed.  513,  §§  329,  406. 
Ballard  v.  Mississippi  Cotton  Oil  Co., 

81  Miss.  507,  §  300. 
Balsley  v.  St.  Louis,  Alton  &  Terre 
Haute  Rd.  Co.,  119  111.  68,  §§  63, 
464. 
Baltimore  v.  Baltimore  Trust  &  Guar. 

Co.,  166  U.  S.  673,  §§345,  387. 

Baltimore  v.  Stole,  52  Md.  435,  §  127. 

Baltimore  &  Fredericktown  Turnpike 

Road  v.   Baltimore,   Catonville  & 

E.  M.  P.  R.  Co.,  81  Md.  247,  §§  12, 

26,  332. 

Baltimore  &  Ohio  R.  Co.  v.  Baugh, 

149  U.  S.  368,  §  212. 
Baltimore  &  Ohio  R.  Co.  v.  Jefferson 
County  (C.  O),  29  Fed.  305,  §  245. 
Baltimore  &  Potomac  Rd.  Co.  v. 
Fifth  Baptist  Church,  108  U.  S. 
317,  §  51. 


TABLE    OF   CASES    CITED 


XXXV11 


Baltimore   &    Potomac    Rd.    Co.    v. 

Hopkins,  130  U.  S.  210,  §  229. 
Baltimore  &  Susquehanna  R.  Co.  v. 

Nesbit,   10  How.   (51   U.   S.)   395, 

§  333. 
Baltimore,  Chesapeake  &  Atlantic  R. 

Co.  v.  Mayor,  etc.,  of  Ocean  City, 

89  Md.  89,  §§  12,  17,  20,  479. 
Baltimore,    Chesapeake    &    Atlantic 

Ry.     Co.     v.     Wicomico     County 

Commrs.,  103  Md.  277,  §§  20,  479. 
Baltimore  City  v.  Chesapeake  &  Po- 
tomac Teleph.   Co.,    92   Md.   692, 

§§  23,  255. 
Baltimore  City  v.  Johnson,  96  Md. 

737,  §§  2,  25. 
Baltimore,  City  of,  v.  Safe  Deposit  & 

Trust  Co.  of  Bait.  (Md.),  55  Atl. 

316,  §  440. 
Baltimore,  City  of,  v.  United  States 

&  Elec.  Co.   (Md.,   190S),  68  Atl. 

557,  §  48. 
Baltimore  Trust  &  G.  Co.  v.  Balti- 
more (C.  C),  64  Fed.  153,  §  379. 
Bank.     See  name  of. 
Bank  v.  Marye,  191  U.  S.  272,  §  422. 
Bank  v.  Pennsylvania,  167  U.  S.  461, 

§421. 
Bank  for  Savings  v.  Collector,  3  Wall. 

(70  U.  S.)  495,  §  282. 
Bank  of  Augusta  v.  Earle,  13  Pet.  (38 

U.  S.)  519,  §§  2,  3,  11,  51,  60,  132, 

187. 
Bank  of  California  v.  San  Francisco, 

142  Cal.  276,  §§  3,  5,  11.  27,  28,  29, 

30,  34,  1 32,  423. 
Bank  of  Chenango  v.  Brown.  26  N.  Y. 

467,  §  289. 
Bank  of  Commerce  v.  New  York,  2 

Black  (67  U.  S.),  620,  §§  124,  125. 
Bank  of  Commerce  v.  Tennessee.  161 

U.  S.  134,  §  I.V.i. 
Bank  of  Commerce  v.  Wiltsie,    153 

Ind.  460,  §  218. 
Bank  of  Idaho  v.  Malheur  County,  30 

Ores.  420,  §  15. 
Bank  of  Kentucky  v.  Kentucky,  207 

U.  S.  258,  §  330. 


Bank  of  Middlebury  v.  Edgerton,  30 

Vt.  182,  190,  §§  8,  14. 
Bank  of  Redemption  v.  Boston,  125 

U.  S.  60,  §§  300,  439. 
Bank    of    Saginaw    v.    Peirson,    112 

Mich.  410,  §  282. 
Bank  of  Toledo  v.  City  of  Toledo,  1 

Ohio  St.  622,  §§  4,  311. 
Bank  of  United  States  v.  Dandridge, 

12  Wheat.  (25  U.  S.)  64,  91,  §§  11, 

18,  350. 
Bank  of  United  States  v.  Deveaux,  5 

Cranch  (9  U.  S.),  61,  §§  51,  67. 
Bank  of  United  States  v.  State,   12 

Smedes  &  Marsh  (20  Miss.),  456, 

§51. 
Bank  Tax  Case,  2  Wall.  (69  U.  S.) 

200,  §  424. 
Barber  v.  International  Co.  of  Mex- 
ico, 73  Conn.  587,  §  51. 
Barber  v.  Jacksonville  &  A.   Plank 

Road  Co.,  6  Fla.  262,  §  22. 
Barber  Asphalt  Paving  Co.  v.  French, 

158  Mo.  534,  §§  184,  1S8. 
Barbier  v.  Connolly,   113  U.  S.  27, 

§§  149,  295,  399. 
Bardwell  v.  State,   16  Wall.  (U.  S.) 

130,  §  21. 
Barhite    v.    Home    Teleph.    Co.,    63 

N.  Y.  659,  §  188. 
Barhite    v.    Home    Teleph.   Co.,    50 

N.  Y.  App.  Div.  25,  §  140. 
Barker     v.      Torrey,      69     Tex.     7, 

§231. 
Barnard   v.   Gall,   43   La.   Ann.   959, 

§  237. 
Barnes  v.  Arnold,  45  N.  Y.  App.  Div. 

314.  §  324. 
Barnes   v.    Kornegay,   62  Fed.  671, 

§  459. 
Barney  v.  City  of  New  York,    193 

X.  V.  430,  §§  182,  422. 
Barney  v.  Winona  &  St.  Peter  Rd. 

Co.,  117  U.  S.  228,  §  241. 
Bain.n  v.  Baltimore,  7  Pet,  (32  U.  S.) 

243,  §  289. 
Barron  v.   Burnside,  121   U.  S.  186, 

§§  355,  356. 


XXXV111 


TABLK    OF    CASES    CITED 


Barrow  Steamship  Co.  v.  Kane,  170 

U.  S.  100,  §  355. 
Bartholomew  v.  Austin,  85  Fed.  359, 

§  456. 
Bartlett  v.  Wilson,  59  Vt.  23,  §  297. 
Barton  v.  Barbour,   104  U.  S.   126, 

§97. 
Bartram  v.  Hopkins,  71  Conn.  505, 

§270. 
Baslian    v.    Modern    Woodmen    of 

America,  166  111.  595,  §  283. 
Bate    Refrigerating    Co.    v.    Gillett 

(C.  C),  20  Fed.  192,  §  271. 
Bate  Refrigerating  Co.  v.  Sulzberger, 

157  U.  S.  1,  §§  263,  270. 
Batterson,  In  re,  72  Conn.  374,  §  449. 
Baxter  Springs,   City  of,   v.   Baxter 

Springs  light  &  Power  Co.,  64  Kan. 

591,  §§  33,47,311. 
Bayne    v.     Board    of    Commrs.     of 

Wright  County,  90  Minn.  1,  §  194. 
Beals  v.  Amador  County,  35  Cal.  624, 

§289. 
Beals  v.  Hale,  4  How.  (45  U.  S.)  37, 

§§  272,  282,  283. 
Beard  v.  Rowan,  9  Pet.  (34  U.  S.) 

301,  §  244. 
Beardsley  v.  New  York,  L.  E.  &  W. 

R.  Co.,  44  N.  Y.  Supp.  175,  §  412. 
Beardstown  v.  City  of  Virginia,   76 

111.  34,  §§  205,  208. 
Bear  Lake  &  River  Waterworks  & 

Irrig.  Co.  v.  Garland,  164  U.  S.  1, 

§270. 
Beaston  v.  Farmers'  Bank,   12  Pet. 

(37  U.  S.)  102,  §  65. 
Beatty  v.  Ry.  Co.,  84  App.  Div.  91, 

§33. 
Becket    Paper    Co.    v.    Hamilton   & 

R.  H.  Co.,  18  Ohio  C.  C.  200,  §  464. 
Bedell  v.  Scott,  126  Cal.  675,  §  199. 
Beekman  v.  Saratoga  &  Schenectady 

R.  Co.,  3  Paige  Ch.  (N.  Y.)  45,  §  14, 

17,  63,  97,  400. 
Beekman  v.  Third  Ave.  R.  Co.,  43 

N.  Y.  Supp.  174,  §  379. 
Beekman  v.  Third  Ave.  Rd.  Co.,  153 

N.  Y.  144,  §§48,  148,  344. 


Beer  Co.  v.  Massachusetts,  97  U.  S. 

25,  §§  138,  317,  366. 
Beggs  v.  Edison  Electric  Illuminating 

Co.,  96  Ala.  295,  §  77. 
Beirs  v.  Vanceburg  Teleph.  Co.,  28 

Ky.  L.  Rep.  142,  §  176. 
Belfast  Savings  Bk.  v.  Stowe,  92  Fed. 

102,  §  292. 
Bell  v.  Clegg,  25  Ark.  26,  §§  15,  144. 
Bell  v.  Farwell,  176  111.  489,  §  227. 
Bell   v.    Railroad   Co.,    4   Wall.    (71 

U.  S.)  598,  §  343. 
Belleville  v.  Citizens'  Horse  Ry.  Co., 

152111.  171,  §§  1,47,336. 
Bell  Teleph.  Co.  v.  Montreal  St.  R. 

Co.,  Rap.  Jud.  Quebec,  6  B.  R. 

223,  §  188. 
Bell's  Gap  R.  Co.  v.  Pennsylvania, 

134  U.  S.  232,  §§  446,  448. 
Belton,  In  re,  47  La.  Ann.  1614,  §  488. 
Benbow  v.  Cook,   115  N.  Car.  324, 

§  350. 
Benedict  v.  Columbus  Const.  Co.,  49 

N.  J.  Eq.  23,  §§  374,  388. 
Bennett    v.    Town    of    Mt.    Vernon 

(Iowa),  100  N.  W.  349,  §  345. 
Bennington  v.  Park,  50  Vt.  178,  §  231. 
Benson  v.  Mayor  of  New  York,  10 

Barb.  (N.  Y.)  223,  §  80. 
Bent  v.   Underdown,   156  Ind.   516, 

§41. 
Benton  v.  Johncox,   17  Wash.  277, 

§306. 
Berea  College  v.  Commonwealth  of 

Kentucky,    211    U.    S.    45.      See 

"Appendix  C,"  herein. 
Bergen   Traction   Co.   v.    Ridgefield 

Township  Committee  (N.  J.  Ch.), 

32  Atl.  754,  §  379. 
Berry  v.  Mobile  Life  Ins.  Co.,  Fed. 

Cas.  No.  1358,  §  67. 
Berry  Coal  &  Coke  Co.  v.  Chicago,  P. 

&  St.  L.  Ry.  Co.,  116  Mo.  App.  214, 

§  370. 
Besson    v.    Crapo    Toll    Road    Co. 

(Mich.),  114  N.  W.  924,  §  200. 
Beveridge  v.  New  York  Elev.  R.  Co., 

112  N.  Y.  1,  §  467. 


TABLE    OF   CASES    CITED  XXXIX 

Bierhop   v.   City   of   Milwaukee.    21  Blake  v.  Winona  &  St.  Peter  Ry.  Co., 

Wis.  257,  §  62.  19  Minn.  418,  §  132. 

Billings  v.  Breinig,  45  Mich.  65,  §  26.  Blanchard  v.  Abraham,  115  La.  999, 

Billings  v.  Hall,  7  Cal.  1,  §  311.  §  201. 

Binghamton  v.  Binghamton  &  P.  D.  Blandford    Third    School     Dist.    v. 

Ry.    Co.,    16    N.    Y.   Supp.    225,  Gibbs,    2    Cush.    (56    Mass.)     39, 

§  337.  §  350. 

Binghamton  Bridge,  The,  3  Wall.  (70  Blissett  v.  Hart,  Willes,  508,  §§15, 

U.  S.)  51,  §§  286,  311,  340,  412.  148. 

Binghamton    Trust    Co.   v.   City   of  Bliven  v.  Penn  S.  &  I.  Co.,  9  Abb. 

Binghampton,  76  N.  Y.  Supp.  517,  (N.  Car.),  205,  §  489. 

§§  437,  455.  Block  v.  O'Connor  Min.  &  Mfg.  Co., 

Bird  v.  Arnott  (Mich.),   108  N.  W.  129  Ala.  528,  §  486. 

646,  §  245.  Blocki  v.  People,  220  111.  444,  §§  23, 

Bird  v.  United  States,  187  U.  S.  118,  47,  255. 

§  261.  Blodgett   v.    Worcester    Consol.   St. 

Birmingham  &  P.  M.  S.  R.  Co.  v.  Ry.  Co.    (Mass.),   78    N.    E.    222, 

Birmingham  S.  R.  Co.,  79  Ala.  465,  §  379. 

§§  311,  313.  Blood  v.  Woods,  95  Cal.  78,  §  116. 

Birmingham    Mineral    Rd.    Co.    v.  Bloodgood  v.   Grasey,  31   Ala.   575, 

Jacobs,  92  Ala.  187,  §  111.  §  271. 

Birmingham  Mineral  Rd.  Co.  v.  Par-  Bloomington  Cemetery  Assoc,  v.  Peo- 

sons,  100  Ala.  662,  §  366.  pie,  170  111.  377,  §  455. 

Birmingham    N.    R.    Co.    v.    Elyton  Bloxham  v.  Consumers'  E.  L.  &  St.  R. 

Land  Co.,  114  Ala.  70,  §  245.  Co.,  36  Fla.  519,  §§111,  433. 

Bitterman  v.  Louisville  &  Nashville  Bly  v.  Nassau  St.  R.  Co.,  67  N.  H. 

Ry.  Co.,  207  U.  S.  205,  §  413.  474,  §  387. 

Bixler  v.  Summerfield,  195  111.  147,  Board.     See  Commissioners;  see  also 

§  41.  Name  of  Board. 

Blackwell  v.  First  National  Bank,  10  Board     of     Assessors     v.     Plainfield 

N.  W.  555,  §  265.  Water  Supply  Co.,  67  N.  J.  L.  357, 

Blades  v.  Board  of  Water  Commis-  §§  380,  412,  455. 

sioners  of  the  City  of  Detroit.  122  Board  of  Commissioners.     See  Com- 

Mich.  366,  §§  235,  245.  missioners. 

Blaine  v.  Curtis,  59  Vt.  120,  §  271.  Board  of  Commissioners  of  Johnson 

Blair  v.  City  of  Chicago,  201  U.  S.  County  v.  Hewitt,  76  Kan.  816, 

400,  §§  23,  228,  241,  245,  247,  254,  §  440. 

257,  279,  283,  287,  306,  330,  344,  Board    of    Councilmen    of    City    of 

347.  Frankfort  v.  Stone,  108  Ky.  400, 

Blair  v.  Ridgely,  41  Mo.  63,  §  21.  §§  8,  11,  12,  16,  40,  434. 

Blake     v.     Ada     County     Commrs.  Board     of  Councilmen    of    City    of 

(Idaho),  47  Pac.  734,  §  227.  Frankfort  v.  Stone,  22  Ky.  L.  Rep. 

Blake  v.  Concord  &  M.  R.  Co.,  73  502,  §  440. 

N.  II.  597,  §  382.  Board  of  Directors.     See  Directors; 

Blake  v.    McCIung,    172  U.  S.   239,  see  State  Board  of . 

§§66,67,291,292,300,354,355.  Board    of    Directors    for    Leveeing 

Blake  v.   National    Banks,   2.'?   Wall.  Wabash  River  v.  Houston,  71  111. 

(90  U.  S.)  .'507,  §  262.  318,  §§  61,  63,  99. 


xl 


TABLE    OF    CASES    CITED 


Board  of  Directors  of  Middle  Kittas 

Irrig.   Dist.   v.   Peterson.   4   Wash. 

147,  §  88. 
Board    of    Directors    of    St.    Francis 

Levee  Dist.  v.  Bodkin  (Tenn.),  69 

S.  W.  270,  §  89. 
Board  of  Education  v.  Greenebaum 

&  Sons,  39  111.  609,  §  56. 
Board  of  Liquidation  v.  Louisville  & 

Nashville  R.  Co.,   109  U.  S.  221, 

§  343. 
Board  of  Liquidation  v.  McComb,  92 

U.S.  531,  §416. 
Board  of  Liquidation  of  New  Orleans 

v.  Louisiana,  179  U.  S.  622,  §  272. 
Board  of  Railroad  Commissioners  v. 

Market  St.  Ry.  Co.,  132  Cal.  677, 

§217. 
Board    of   Supervisors    of   Elizabeth 

City  Council  v.   City  of  Newport 

News,  106  Va.  764,  §  440. 
Board  of  Tax  Commrs.  v.  Holliday, 

150  Ind.  216,  §  227. 
Board  of  Trade  of  Chicago  v.   The 

People,  91  111.  80,  82,  §§  1,  3,  9,  11. 
Board    of    Water    Commissioners   of 

White  Plains,  Matter  of,  76  N.  Y. 

Supp.   11,  §  3. 
Boca  &  L.  R.  Co.  v.  Sierra  Valleys  Ry. 

Co.  (Cal.  App.),  84  Pac.  298,  §§  19, 

227. 
Bohn  v.  Harris,  130  111.  525,  §  26. 
Boise    City    Artesian    Hot    &    Cold 

Water  Co.  v.  Boise  City,  123  Fed. 

232,  §§  16,  269,  394. 
Bonaparte  v.  Baltimore,  H.  &  L.  R. 

Co.,  75  Aid.  340,  §  490. 
Bonebrake   v.  Wall  (Ohio  C.  P.),  24 

Ohio  L.  J.  175,  §  289. 
Bon  Homme  County  v.  Berndt,   15 

S.  Dak.  494,  §  231. 
Booth    v.    Town    of    Woodbury,    32 

Conn.  118,  §  269. 
Bordentown    Banking    Co.   v.   Spar- 
hawk,  214  Pa.  334,  §  63. 
Borough.     See  name  of. 
Borough  v.  City  of  Cherokee  (Iowa), 

109  N.  W.  876,  §  343. 


Boston  v.  Crowley,  38  Fed.  602,  §348. 
Boston    v.    Cummins,    16    Ga.    102, 

§231. 
Boston     v.     Richardson,     13     Allen 

(Mass.),  146,  §  16. 
Boston  v.  Union  Freight  R.  Co.,  LSI 

Mass.  205,  §  337. 
Boston  &  Albany  Ry.  v.  Pearson,  12S 

Mass.  445,  §  52. 
Boston    &    M.    R.    Co.    v.    County 

Commrs.,  79  Me.  386,  §  96. 
Boston  Electric  Light  Co.  v.  Boston 

Terminal  Co.,  184  Mass.  566,  §  33, 

140. 
Boston  Glass  Manufactory  v.  Lang- 
don,  24  Pick.  (41  Mass.)  49,  §  311. 
Boston  Mining  &  Milling  Co.,  In  re, 

51  Cal.  624,  §  245. 
Boston  Rubber  Shoe  Co.  v.  Boston 

Rubber  Co.,  149  Mass.  436,  §  11. 
Bourland  v.  Hildreth,  26    Cal.   161, 

§§  205,  289. 
Bowers  v.  Smith,  111  Mo.  45,  §§  261, 

269. 
Bowman  v.  Chicago  &  N.  W.  Ry.  Co., 

125   U.   S.   465,   §§  368,   370,   404, 

412. 
Bowman  v.  Wathen,  2  McLean  (U.  S. 

C.  C),  376  Fed.  Cas.,  No.  1,740, 

§26. 
Boyce,  Ex  parte,  27  Nev.  299,  §  231. 
Boyer  v.  Onion,   108  111.  App.  612, 

§  233. 
Boyle  v.  Philadelphia  &  Reading  Rd. 

Co.,  54  Pa.  310,  §  17. 
Brabham  v.  Hinds  County,  Board  of 

Supervisors  of,  54  Miss.  363,  §  56. 
Brace     v.     Solner,     1    Alaska,    361, 

§  266. 
Bradford  v.  National  Ben.  Assn.,  26 

App.  D.  C.  268,  §  53. 
Bradley  Fertilizer  Co.  v.  South  Pub. 

Co.,  23  N.  Y.  Supp.  675,  §  51. 
Brady  v.  Moulton,  61  Minn.  185,  §§  8, 

31. 
Branch  v.  Baker,  53  Ga.  502,  §  311. 
Branch  v.  Charleston,  92  U.  S.  677, 

§  481. 


TABLE    OF   CASES    CITED 


xJi 


Branch    v.    Jesup,    106    U.    S.    468, 

§§  463,  468,  476. 
Brass    v.    Stoeser,    153    U.    S.    391, 

§§295,366,391. 
Brauer    v.    Baltimore    Refrigerating 

Co.  (Md.),  58  Atl.  21,  §  345. 
Braun  v.  Webb,  6.5  N.  Y.  Supp.  668, 

§  109. 
Bray   v.   Florence   City   Council,    62 

S.  C.  17,  §  220. 
Brennan  v.  German-American  Bank, 

144  U.  S.  173,  §  343. 
Brennan  v.  Titusville,  153  U.  S.  289, 

§§  131,  359. 
Brent  v.  Hart,  10  Mo.  App.  143,  §  425. 
Brewer  v.  Blougher,  14  Pet.  (39  U.  S.) 

178,  §  239. 
Bridgeport,  City  of,  v.  New  York  & 

New  Haven  Rd.  Co.,  36  Conn.  255, 

§§  8,  9,  12,  34. 
Bridge  Proprietors  v.  Hoboken  Com- 
pany,   1    Wall.    (68    U.    S.)    116, 

§§  340,  412. 
Bridgers  v.  Taylor,   102  N.  Car.  86, 

§  269. 
Bridges  v.  Shallcross,  6  W.  Va.  562, 

§§  231,  289. 
Bridge    Street    &    Allendale    Gravel 

Road  Co.  v.  Hogadone  (Mich.),  114 

N.  W.  017,  §  200. 
Bridgewater    Ferry    Co.    v.    Sharon 

Bridge  Co.,  145  Pa.  404,  §  489. 
Brien  v.  Williamson,  7  How.  (Miss.) 

11,  §  225. 
Brightwell     v.     Mallory,     10     Yerg. 

(Tenn.)  196,  §  425. 
Brimmer  v.  Rebman,   138  U.  S.  78, 

§§  136,  373. 
Bristol  County,  In  re,  193  Mass.  257, 

§§  298,  382. 
Broadnax  v.  Baker,  94  N.  Car.  675, 

§§  15,  24. 
Bronson    v.    City   of   New  York,    10 

Barb.  (N.  Y.)  223,  §306. 
Bronson     v.     Kinzie,     1     How.     (42 

U.  S.)  311,  §  416. 
Bronson  v.  Oberlin,  41  Ohio  St.  476, 

§231. 


Brooker  v.  Maysville  &  B.  S.  R.  Co., 

26  Ky.  L.  Rep.  1022,  §  464. 
Brooklyn  v.  Nassau  Elec.  R.  Co.,  56 

X.  Y.  Supp.  609,  §  387. 
Brooklyn  City  Rd.  Co.  v.  New  York 

State  Board  of  Tax  Commrs.,  199 

U.  S.  48,  §§  426,  446. 
Brooklyn  Rd.  Co.,  In  re,  125  N.  Y. 

434,  §  486. 
Brooklyn,  Q.  C.  &  L.  R.  Co.,  In  re, 

185  N.  Y.  171,  §  490. 
Brooklyn  Union  Gas  Co.  v.  City  of 

New' York,   100  N.  Y.  Supp.  625, 

§§  82,  392. 
Brooks  v.  Roberts,  78  Fed.  41,  §  245. 
Brooks  v.  Southern  Pacific  Co.,  207 

U.  S.  463,  §§  369,  370,  375,  3S4. 
Brown  v.  Atlanta  Ry.  &  Power  Co., 

113  Ga.  462,  §§  288,  349. 
Brown  v.  Carolina  Midland  Ry.  Co., 

67  S.  C.  481,  §§  296,  300. 
Brown  v.  Gerald,  100  Me.  351,  §  241. 
Brown  v.   Houston,    114  U.  S.  622, 

§404. 
Brown  v.  Maryland,   12  Wheat.   (25 

U.  S.)  419,  §§  205,  213,  231,  306. 
Brown  v.  Phillips,  71  Wis.  239,  §  202. 
Brown  v.  South  Kennebec  Agricul- 
tural Soc,  47  Me.  275,  §  68. 
Brown  v.  Thorpe,  74  S.  C.  207,  §  136. 
Brown    v.    Turner,    174    Mass.    150, 

§236. 
Brown  v.  United  States,  113  U.  S. 

568,  §  262. 
Brown   v.    Walker,    161    U.   S.    591, 

§  269. 
Brown  University  v.  Granger,  19  R.  I. 

705,  §  455. 
Bruffett  v.  Great  Western  R.  Co.,  25 

111.  353,  §  311. 
Brundred  v.  Rice.  49  Ohio  St.  640, 

§11- 

Brunswick  Terminal  Co.  v.  National 
Bank  of  Bait.,  192  U.  S.  386, 
§§  253,  274. 

Bryan  v.  Board  of  Education,  Ken- 
tucky Conference,  151  U.  S.  639, 
§331. 


xlii 


TABLE    OF    OASES    CITED 


Brymer    v.    Butler   Water   Co.,    179 

Pa.  231,  §  390. 
Buchanan  v.  Knoxviile  &  Ohio  Rd. 

Co.,  71  Fed.  324,  §§  3,  12,  20. 
Buchanan  v.    Litchfield,    102  U.   S. 

278,  §  343. 
Buck  v.  Mills,  147  Ind.  586,  §  440. 
Buckner  v.  Hart,  52  Fed.  835,  §  241. 
Budd  v.  Multnomah  St.  Rd.  Co.,  15 

Oregon,  404,  §  25. 
Budd  v.  New  York,  143  U.  S.  517, 

§§113,  173,  295,  366,  .391. 
Buente  v.  Pittsburg,  A.  &  M.  Tract. 

Co.,  2  Pa.  Super.  Ct.  185,  §  387. 
Buffalo  East  Side  Rd.  Co.  v.  Buffalo 

Street   Rd.    Co.,   Ill    N.    Y.   132, 

§400. 
Buffalo  Loan,  Trust  &  Safe  Deposit 

Co.  v.  Medina  Gas  &  Elect.  Light 

Co.,  42  N.  Y.  Supp.  781,  §  11. 
Building  &  Loan  Assoc,  v.  Sohn,  54 

W.  Va.  101,  §§  236,  262,  283. 
Bullmaster  v.  St.  Joseph,  70  Mo.  App. 

60,  §  11. 
Burgen  &  Dundee   R.  Co.  v.  State 

Board  of  Assessors,  74  N.  J.  L.  742, 

§421. 
Burgess  v.  Seligman,   107  U.  S.  20, 

§272. 
Burgoyne  v.  Supervisors,  5  Cal.  23, 

§262. 
Burhop    v.    City   of   Milwaukee,    21 

Wis.  257,  §§  56,  99. 
Burlington  v.  Beasley,  94  U.  S.  310, 

§391. 
Burlington    &    Henderson      County 

Ferry  Co.  v.  Davis,  48  Iowa,  133, 

§80. 
Burlington,  C.  R.  &  N.  Ry.  Co.  v. 

Dey,  82  Iowa,  312,  §§  233,  390. 
Burlington,  K.  &  S.  R.  Co.  v.  John- 
son, 38  Kan.  142,  §  238. 
Burlington  Lumber  Co.  v.  Willetts, 

118  111.  559,  §  404. 
Burnes  v.  City  of  St.  Joseph,  91  Mo. 

App.  489,  §  345. 
Burnett  v.  Maloney,  97  Tenn.  697, 

§285. 


Burnette,  In  re,  73  Kan.  609,  §  233. 
Burrows  v.  Delta  Transp.  Co.,   106 

Mich.  582,  §  245. 
Burton  v.  Snyder,  22  Colo.  173,  §  245. 
Bush  v.  Shipman,  4    Scam.  (5  111.) 

186,  §  56. 
Bushnel    v.    Leland,  164  U.  S.  684. 

§152. 
Bushnell    v.    Beloit,    10    Wis.    195, 

§  289. 
Bushnell  "v.  Park  (U.  S.  C.  C),  46 

Fed.  209;  §  53. 
Business  Men's  League  v.  Waddill, 

143  Mo.  495,  §  163. 
Butler  v.  Mayor,  etc.,  of  Thomasville, 

74  Ga.  570,  §  343. 
Butler  v.  State  of  Pennsylvania,  10 

How.  (51  U.  S.)  402,  §  21. 
Butte  Hardware  Co.  v.  Sullivan,  7 

Mont.  307,  §  253. 
Buttfield   v.   Stranahan,    192   U.   S. 

470,  §§  151,  231,  368. 
Button  v.  El  Paso  Northeastern  Ry. 

Co.  (Tex.  Civ.  App.),  93  S.  W.  676, 

§130. 
Button   v.   State  Corporation  Com- 
mission, 105  Va.  634,  §§  121,  163. 
Byars  v.  Bennington  &  H.  V.  Ry.  Co., 

90  N.  Y.  Supp.  736,  §  413. 
Bybee  v.  Oregon  &  California  Ry. 

Co.,  139  U.  S.  663,  §  485. 
Byrne  v.  Chicago,  G.  R.  Co.,  169  111. 

75,  §§  96,  359. 
Bywaters  v.  Paris  &  G.  W.  R.  Co.,  73 

Tex.  624,  §  486. 

C. 
Cable  v.  United  States  Life  Ins.  Co., 

191  U.  S.  288,  §  352. 
Cadwalader  v.  Zeh,   151  U.  S.  171, 

§238. 
Cain  v.  City  of  Wyoming,   104  111. 

App.  538,  §§  1,  47,  132,  1S5. 
Cain  v.  Smith,  117  Ga.  902,  §  137. 
Calder  v.  Bull,  3  Dall.  (3  U.  S.)  386, 

§§  229,  261. 
Caldwell  v.  Texas,    137  U.  S.  692, 

§  297. 


TABLE    OF   CASES    CITED 


xliii 


Caledonia   Coal    Co.    v.    Baker,    196 

U.S.  432,  §261. 
Calhoun  v.  Pullman  Palace  Car  Co., 

(U.  S.  C.  C.)  149  Fed.  546,  §  109. 
California  v.  Central  Pacific  Rd.  Co., 
127  U.S.  1,  §§  1,2,3,  17,  124,  129, 
418. 
California   v.    Pacific    Ry.    Co.,    127 

U.S.  1,  §  144. 
California,     City     of,     v.     Bunceton 
Teleph.   Co.,    112   Mo.    App.    722, 
§347. 
California    Reduction    Co.    v.    Sani- 
tary Reduction  Co.,    126  Fed.  29, 
§136. 
California  State  Teleg.   Co.  v.  Alta 
Teleg.  Co.,  22  Cal.  398,  §§  3,  24, 
26,  476. 
Calihan  v.   Jennings,    16  Colo.   471, 

§234. 
Callahan    v.    St.    Louis    Merchants' 
Bridge  Terminal  Co.,  170  Mo.  473, 
§300. 
Calvert  v.  Southern  Ry.  Co.,  64  S.  C. 

139,  §  67. 
Camblos   v.  Philadelphia  &  Reading 
R.    Co.,    4    Brewster    (Pa.),    563, 
§§  H,  17. 
Camblos  v.  Philadelphia  &  R.  R.  Co., 

Fed.  Cas.  2,331,  §  22. 
Cambria   Iron  Co.  v.   Ashburn,    118 

U.  S.  54,  §  270. 
Camden    &    A.    R.    Transp.    Co.    v. 

Briggs,  22  N.  J.  L.  623,  §  264. 
Camfield  v.  United  States,  167  U.  S. 

518,  §  399. 
Camp  v.  Wabash  R.  Co.,  94  Mo.  App. 

272,  §  270. 
Campbell  v.  Pittsburg  &  W.  R.  Co., 

137  Pa.  574,  §  478. 
Campbell  v.  St.  Louis  &  S.  Ry.  Co., 

175  Mo.  161,  §  387. 
Campbell,    Receiver,   v.  Watson,  62 

N.  J.  Eq.  396,  §  69. 
Canadian  S.  R.  Co.  v.  Niagara  Falls, 

22  Ont.  Rep.  41,  §  468. 
Canal  Company   v.   Railroad  Co.,   4 
Gill  &  J.  (Md.)  1,  107,  §§  12,  15. 


Cantrell   v.   Seaverns,    168   111.    165, 

§240. 
Cape  Girardeau  Co.  Court  v.  Hill,  118 

U.  S.  68,  §  284. 

Cape   May,    City   of,    v.    Cape   May 

Transp.  Co.   (N.  J.  Sup.),  44  Atl. 

948,  §  359. 

Capital  City  Ferry  Co.  v.  Cole,  etc., 

Transp.  Co.,  51  Mo.  App.  228,  §  26. 

Capital  City  Light  &  Fuel  Co.  v.  City 

of  Tallahassee,  42  Fla.  462,  §  314. 
Capital    City    Water    Co.    v.    State, 

Macdonald,  105  Ala.  406,  §  490. 
Capital  State  Bank  v.  Lewis,  64  Miss. 

727,  §  287. 
Carder  v.  Fayette  County,  Board  of 
Commrs.  of,  16  Ohio  St.  353,  §  56. 
Cardwell  v.  American  Bridge  Co.,  113 

U.  S.  205,  §§  145,  152. 
Carey  v.  Giles,  9  Ga.  253,  §  264. 
Carli  v.  Stillwater  St.  Ry.  &  Transfer 

Co.,  28  Minn.  373,  §  111. 
Carlisle  v.  Cumberland  Valley  Elect. 
Pass.  R.  Co.,  22  Pa.  Co.  Ct.  221, 
§  347. 
Carlisle  v.  Pullman  P.  C.  Co.,  8  Colo. 

320,  §  448. 
Carrell  v.  Muncie,  H.  &  Ft.  W.  Ry. 

Co.  (Ind.  App.),  78,  §  111. 
Carrigan    v.    Coney    Island    Jockey 

Club,  22  N.  Y.  Supp.  394,  §  63. 
Carroll   v.   Campbell,    108  Mo.   550, 

§§  26,  144,  396. 
Carruthers  v.  Kansas  City,  Ft.  S.  & 

M.  R.  Co.,  59  Kan.  629,  §  464. 
Carson  v.  St.  Francis  Levee  Dist.,  59 

Ark.  513,  §  89. 
Carstairs  v.  Cochran,  193  U.  S.  10, 

§272. 
Carter  County  v.  Sinton,   120  U.  S. 

517,  §  245. 
Carter,    Webster    &    Co.    v.    United 

States,  137  Fed.  978,  §  250. 
Carthage,  Village  of,  v.  Central  New 
York  Teleph.  Co.,  96  N.  Y.  Supp. 
919,  §§  198,  379. 
Cascade    County  v.   City  of    Great 
Falls,  18  Mont.  537,  §  15. 


xliv 


TABLE    OF   CASES    CITED 


Case  v.  Cayuga  County,    34   N.   Y. 

Supp.  595,  §  379. 
Case  v.  Kelly,  133  U.  S.  21,  §  12. 
Casey  v.  St.  Louis  Transit  Co.,  116 

Mo.  App.  235,  §  252. 
Cassatt  v.  Mitchell  Coal  &  Coke  Co., 

150  Fed.  32,  §  64. 
Cathcart   v.    Robinson,    5    Pet.    (30 

U.  S.)  264,  §  269. 
Cauble  v.  Craig,   94  Mo.   App.   675, 

§§  26,  1S6. 
Cedar  Rapids  &  M.  C.  R.  Co.  v.  Cedar 

Rapids,  106  Iowa,  476,  §  433. 
Cedar   Rapids   Water   Co.   v.   Cedar 

Rapids,  118  Iowa,  234,  §§  2,  8,  11, 

12,  16,  44,  48,  235,  288,  348,  349, 

394. 
Central    Branch   Union   Pacific    Rd. 

Co.  v.  Atchison,  Topeka  &  Santa 

Fe  Rd.  Co.,  28  Kan.  453,  §  232. 
Central    Bridge   Corp.    v.    Bailey,    8 

Cush.  (62  Mass.)  319,  §  51. 
Central  City  v.  Morquis  (Neb.),  106 

N.  W.  221,  §  15. 
Central  Crosstown  Ry.  Co.  v.  Metro- 
politan St.  Ry.  Co.,  44  N.  Y.  Supp. 

752,  §  193. 
Central  Iron  Works  v.  Pennsylvania 

R.  Co.,  2  Dauph.  Co.  Rep.  (Pa.) 

308,  §  226. 
Central    Irrigation    District    v.    De 

Lappe,  79  Cal.  351,  §§  88,  148. 
Central  of  Georgia  Ry.  Co.  v.  Mur- 

phey,  196  U.  S.  194,  §§  276,  378. 
Central  of  Georgia  Ry.  Co.  v.  State, 

104  Ga.  831,  §  245. 
Central  of  Georgia  Ry.  Co.  v.  Wright, 

207  U.  S.  127,  §  285. 
Central  of  Georgia  Ry.  Co.  v.  Wright, 

125  Ga.  617,  §§  300,  421. 
Central  Pacific  R.  Co.  v.  California, 

162  U.  S.  91,  §§  5,  11,  17,  26,  34, 

124,  129,  418,  422. 
Central  Pacific  R.  Co.  v.  Gallatin,  99 

U.  S.  700,  §§  391,  400. 
Central  Pacific  R.  Co.  v.  Gallatin,  99 

U.  S.  700  (see  also  Sinking  Fund 

Cases),  §  319. 


Central  Pacific  R.  Co.  v.  State  Board 

of  Equalization,  60  Cal.  35,  §  66. 
Central    Pacific    R.    Co.    v.    United 

States,  99  U.  S.  700  (see  also  Sink- 
ing Fund  Cases),  §  319. 
Central  Railroad  &  Banking  Co.  v. 

Georgia,  92  U.  S.  665,  §§  481,  482. 
Central  Railroad  &  Banking  Co.  v. 

State  of  Georgia,  54  Ga.  401,  §§  1, 

3,  10,  51,  243,  31S. 
Central   R.    &   E.   Co.'s   Appeal,    67 

Conn.  197,  §  141. 
Central  R.  Co.  v.  Collins,  40  Ga.  582, 

§  311. 
Central    R.    Co.    of    New   Jersey    v. 

State  Board  of  Assessors,  74  N.  J. 

L.  1,  §421. 
Central  Transportation  Co.  v.   Pull- 
man's Palace  Car  Co.,  139  U.  S.  24, 

§§  63,  254,  464. 
Central  Trust  Co.  v.  Citizens'  St.  R. 

Co.  (C.  C),  82  Fed.  1,  §§  311,  313, 

398. 
Central  Trust  Co.  v.  Western  North 

Carolina    Rd.    Co.,    89    Fed.    24, 

§§11,  12,  30,  465. 
Central  Union  Teleg.  Co.  v.  Fehring, 

146  Ind.  189,  §  245. 
Central  Union  Teleph.  Co.  v.  Brad- 
bury, 106  Ind.  1,  §  63. 
Cereghino  v.  Oregon  Short  Line  Rd. 

Co.,  26  Utah,  467,  §§  188,  344. 
Cerf  v.  Reichert,  73  Cal.  360,  §§  282, 

283. 
Chadwick  v.  Kelley,  187  U.  S.  540, 

§  229. 
Chamberlain   v.    Iowa    Teleph.    Co., 

119  Iowa,  619,  §  140. 
Chamberlain  v.  State,   50  Ark.   132, 

§  282. 
Chamberlain   v.    Wood,    15   S.   Dak. 

216,  §  21. 
Chambers  v.  Baltimore  &  Ohio  Ry. 

Co.,  207  U.  S.  142,  §  293. 
Chambers  v.  Solner.   1  Alaska,  271, 

§  236. 
Chambers  County  v.  Lee  County,  55 

Ala.  534,  §  56. 


TABLE    OF    CASES    CITED 


xlv 


Champer  v.  City  of  Greencastle,  138 

Ind.  339,  §  366. 
Chandler  v.  Lee,  1  Idaho,  349,  §  239. 
'Chapin  v.  Crasen,  31  Wis.  209,  §  199. 
Chapman  v.  Barney,  129  U.  S.  677, 

§52. 
Chapman   v.   Brewer,   43   Neb.   890, 

§64. 
Chapman,  In  re,  166  U.  S.  661,  §  238. 
Charge  to  Grand  Jury,  In  re  (D.  C), 

62  Fed.  840,  §  367. 
Charles    River    Bridge    v.     Warren 

Bridge,  11  Pet.  (36  U.  S.)  420,  §§  4, 

15,  17,  22,  23,  24,  26,  120,  136,  138, 

257,  258,  311,  342. 
Charleston,     Cincinnati     &     Chicago 

Rd.  Co.  v.  Whitesides,  30  S.  Car. 

579,  §  288. 
Charleston,   City   of,   v.    Branch,    15 

Wall.  (82  U.  S.)  470,  §  481. 
Charleston,    City    of,    v.    Oliver,    16 

S.  Car.  47,  §  205. 
Charlotte,  Columbia  &  Augusta  Rd. 

Co.  v.  Gibbes,  142  U.  S.  3S0,  §§  66, 

97,  99,  102,  167,  294,  381,  382,  421. 
Chase  v.  Curtis,  113  U.  S.  452,  §  252. 
Chase  v.  Michigan  Tel.  Co.,  121  Mich. 

631,  §464. 
Chatfield  Co.  v.  City  of  New  Haven, 

110  Fed.  788,  §§127,  152. 
Chattanooga  Nat.  B.  &  L.  Assn.   v. 

Denson,  189  U.  S.  408,  §  353. 
Chattaroi  R.  Co.  v.  Kinner,  81  Ky. 

281,  §  332. 
Chattock  v.  Bellamy,  64  L.  J.  Q.  B. 

(N.  S.)  250,  §  119. 
Chemung  Canal  Hank  v.  Lowery,  93 

U.  S.  72,  §  293. 
Cherokee,   County   of,    v.   State,    36 

Kan.  339,   §  233. 
Cherokee  Nation  v.  Southern  Kansas 

Ry.  Co.,  L35  U.S.  641,  §§  107,  L30. 
Chesapeake  &  O.  Canal  Co.  v.  Balti- 
more &  Ohio   R.  Co.,  4   (Jill  &  .1 

(Md.)  1,  §311. 

apeake  &  Ohio  Canal  Co.  v.  Key, 

:;  (ranch  (U.  S.  C.  C),  509,  §§  252, 

255. 


Chesapeake  &  O.  R.  Co.  v.  Howard, 

14  App.  D.  C.  262,  §§  38,  465. 
Chesapeake  &  O.  Ry.  Co.  v.  Howard, 

178  U.S.  153,  §§  464,  465. 
Chesapeake  &  Ohio  Ry.  Co.  v.  Miller, 

114  U.  S.  176,  §§  3,  12,  17,  20,  216, 

479,  480. 
Chesapeake  &  Ohio  Railway  v.  Vir- 
ginia,  94  U.   S.   718,   §§479,   481, 

482. 
Chesapeake  &  P.  Tel.  Co.  v.  Manning, 

186  U.  S.  238,  §§  136,251. 
Chestatee  Pyrites  Co.   v.  Cavenders 

Creek  Gold  Min.  Co.,  119  Ga.  354, 

§63. 
Chester,  City  of,  v.  Wabash,  C.  &  W. 

R.  Co.,  182  111.  382,  §  344. 
Chester,  County  of,  v.   Brower,   117 

Pa.  647,  §  56. 
Chew  Heong  v.  United  States,   112 

U.  S.  536,  §§  282,  287. 
Cheyenne  County  v   Bent  County,  15 

Colo.  320,  §  261. 
Chicago  v.   Chicago  Union  Traction 

Co.,  199  111.  259,  §  337. 
Chicago  v.  People's  Gas  Light  &  Coke 

Co.,  121  111.  530,  §§  97,  464. 
Chicago  v.  Phoenix  Ins.  Co.,  126  111. 

276,  §  250. 
Chicago  &  A.  R.  Co.  v.  Erickson,  91 

111.  613,  §  372. 
Chicago  &  A.  R.  Co.  v.  People,  129 

111.  571,  §  448. 
Chicago  &  Erie  Rd.  Co.  v.  Keith,  67 

Ohio  St.  279,  §  212. 
Chicago  &  Grand  Trunk  Ry.  Co.  v. 

Wellman,   143  U.  S.  339,   §§  167, 

173,  229,  381,  400. 
Chicago  &  Iowa  Rd.  Co.  v.  Pinckney, 

74  111.  277,  §  276. 
Chicago  &  N.  W.  Ry.  Co.  v.  Crane, 

113  U.  S.  424,  §464. 
Chicago  &  N.  W.  Ry.  Co.  v.  De.v,  35 

Fed.  866,  §  L67 
Chicago  &  N.  W.  Ry.  Co.  v.  State.  128 

Wis.  553,  §§  231,233,421,440,  I  18. 
Chicago  &  N.  W    Ry   Co.  \     United 

States,  10  1  U.S.  680,  §  287. 


xlvi 


TABLE    OF    CASES    CITED 


Chicago  &  R.  R.  Co.  v.  Minnesota, 

134  U.  S.  418,  §  416. 
Chicago  &  S.  S.  R.  T.  Co.  v.  Northern 

Trust  Co.,  90  111.  App.  400,  §  466. 
Chicago  &  St.  P.  Ry.  Co.  v.  Third 

Nat.  Bank,  Chicago,  134  U.  S.  276, 

§464. 
Chicago  &  Western  Indiana  Ry.  Co. 

v.  Dunbar,  95  111.  571,  §§  1,  2,  3,  4, 

9,  10,  11,  12,  19,  24,  132. 
Chicago,  B.  &  K.  C.  R.  Co.  v.  Guffey, 

120  U.S.  569,  §§455,  569. 
Chicago,   Burlington   &   Quincy  Rd. 

Co.    v.    Chicago,    166    U.    S.    226, 

§§  294,  346,  381,  397. 
Chicago,   Burlington  &   Quincy  Rd. 

Co.    v.    Drainage    Commrs.,    200 

U.  S.  561,  §§  63,  75,  149,  167,  298, 

366. 
Chicago,   Burlington   &   Quincy  Rd. 

Co.  v.  Illinois,  200  U.  S.  561,  §  381. 
Chicago,   Burlington   &   Quincy  Rd. 

Co.   v.   Iowa,    94   U.   S.    155    (see 

Granger  Cases),  §§  167,  381,  391, 

400,  404,  405,  412. 
Chicago,   Burlington   &  Quincy  Rd. 

Co.  v.  Jones,  149  111.  361,  §  390. 
Chicago,   Burlington  &  Quincy  Rd. 

Co.  v.  Nebraska,  170  U.  S.  57,  §  3S1. 
Chicago,   Burlington   &   Quincy  Rd. 

Co.  v.  Nebraska  City,  53  Neb.  453, 

§430. 
Chicago,   Burlington   &   Quincy  Rd. 

Co.  v.  Nebraska,  47  Neb.  549,  §149. 
Chicago,  City  of,  v.  Galpin,  183  111. 

399,  §  343. 
Chicago,  City  of,  v.  Reeves,  220  111. 

274,  §  220. 
Chicago,  City  of,  v.  Selz,  Schwab  & 

Co.,  104  111.  App.  376,  §  11. 
Chicago  City  Ry.  Co.  v.  Chicago,  142 

Fed.  844,  §  299. 
Chicago  City  Ry.  Co.  v.  People,  73 

111.  541,  §§  1,  47,  132,  133,  185,  187. 
Chicago,  D.  &  V.  R.  Co.  v.  Chicago, 

121  111.  176,  §§  240,  255. 
Chicago,  etc.,  Ry.  Co.  v.  Tompkins, 

176  U.  S.   167,  §§  381,  409,  416. 


Chicago  Drainage  Case.     See  Missouri 

v.  Illinois. 
Chicago  Gas   Light   &  Coke  Co.   v. 

People's  Gas  Light  &  Coke  Co.,  121 

111.  530,  §§  63,  82,  88. 
Chicago  General  R.  Co.  v.  Chicago, 

176  111.  253,  §§  96,  359. 
Chicago,    Indianapolis   &    Louisville 

Ry.  Co.  v.  Irons  (Ind.  App.,  1906), 

78  N.  E.  207,  §  382. 
Chicago,    Indianapolis    &    Louisville 

Ry.  Co.  v.  Railroad  Commission  of 

Indiana,  38  Ind.  App.  439,  78  N.  E. 

338,  §§  63,74,  174,412. 
Chicago,    Indianapolis    &    Louisville 

Ry.  Co.  v.  McGuire,  196  U.  S.  128, 

§354. 
Chicago,  Kansas  &  Western  Rd.  Co. 

v.  Pontius,  157  U.  S.  209,  §  298. 
Chicago  Life  Ins.  Co.  v.  Needles,  113 

U.  S.  574,  §§  311,  365,  488. 
Chicago  Lumber  Co.  v.  Newcomb,  19 

Colo.  App.  265,  §  298. 
Chicago,  Milwaukee  &  St.  Paul  Ry. 

Co.  v.  Ackley,  94  U.  S.  179,  §§  167, 

381. 
Chicago,  Milwaukee  &  St.  Paul  Ry. 

Co.  v.  City  of  Chicago,  83  111.  App. 

233,  §  464. 
Chicago,  Milwaukee  &  St.  Paul  Ry. 

Co.  v.  Minnesota,   134  U.  S.  418, 

§§  97,  113,  173,  369,  381,  391,  401, 

406,  407,  408,  409. 
Chicago,   Milwaukee  &  St.  Paul  Ry. 

Co.  v.  Tompkins,   176  U.  S.   167 

(see  "Appendix  C,"  herein),  §§  381, 

409,  416. 
Chicago,  Milwaukee  &  St.  Paul  Ry. 

Co.  v.  Tompkins  (C.  C),  90  Fed. 

363,  §  406. 
Chicago,  Milwaukee  &  St.  Paul  Ry. 

Co.  v.  United  States,  127  U.  S.  406, 

§  283. 
Chicago,  Milwaukee  &  St.  Paul  Ry. 

Co.  v.  Wabash,  St.  Louis  &  Pac. 

Ry.  Co.,  61  Fed.  993,  §  100. 
Chicago,  Milwaukee  &  St.  Paul  Ry. 

Co.  v.  Wallace,  66  Fed.  506,  §  105. 


TABLE    OF    CASES    CITED 


xlvii 


Chicago  Municipal  Gas  Light  &  Fuel 

Co.  v.  Town  of  Lake,  130  111.  42, 

§§  1,  42,  47. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Union 

Pacific  R.  Co.,  47  Fed.  15,  §  472. 
Chicago,  S.  F.  &  C.  R.  Co.  v.  Ashling, 

160  111.  373,  §481. 
Chicago  Teleph.  Co.  v.  Northwestern 

Teleph.  Co.,  199  111.  324,  §  47,  348. 
Chicago  Teleph.  Co.  v.  Northwestern 

Co.,  100  111.  App.  57,  §  379. 
Chicago  Theological  Seminary  v.  Illi- 
nois, 188  U.  S.  662,  §  455. 
Chicago  Title  &  Trust  Co.  v.  O'Marr, 

18  Mont.  568,  §  287. 
Chicago  Union  Traction  Co.  v.  City  of 

Chicago,  199  111.  484,  §  231. 
Chilcott    v.    Hartm,    23    Colo.    40, 

§269. 
Chincleclamouche  Lumber,  etc.,  Co. 

v.   Commonwealth,    100    Pa.    444, 

§311. 
Chisholm  v.  Georgia,  2  Dall.  (2  U.  S.) 

419,  §  416. 
Chittenden  v.  Wurster,  152  N.  Y.  345, 

§227. 
Choctaw,  O.  &  G.  R.  Co.  v.  Alexan- 
der, 7  Okla.  579,  §§  237,  244,  245. 
Chollette   v.    Omaha    &   Republican 

Valley  Rd.  Co.,  26  Neb.  159,  §§  63, 

464. 
Choquette  v.  Southern  Elec.  R.  Co. 

(Mo.),  53  S.  W.  897,  §  387. 
Christensen,  Ex  parte,  85  Cal.  208, 

§  234. 
Christian  Union  v.  Yount,  101  U.  S. 

352,  §§  12,  351. 
Chudnovski  v.  Eckels,   232  111.  312, 

§§  236,  237,  238,  239,  265. 
Church  v.  Kelsey,  121  U.  S.  282,  §  30. 
Church   of   Holy   Trinity   v.    United 

States,  143  U.  S.  457,  §  220. 
Cincinnati   &  H.  E.  St.   Ry.  Co.   v. 

Cincinnati,  II.  &  I.  R.  Co.,  12  Ohio 

CD.  113,  §286. 
Cincinnati,  City  of,  v.  Covington  & 

C.  Bridge  Co.,  20  Ohio  Cir,  (  t    Rep. 

396,  §  491. 


Cincinnati  Gas  Light  &  Coke   Co.  v. 

Avondale,  43  Ohio  St.  257,  §  390. 
Cincinnati,  H.  &  D.  R.  Co.  v.  Bowling 

Green,  57  Ohio  St.  336,  §  76. 
Cincinnati,  Hamilton  &  Dayton  Ry. 

Co.  v.  Interstate  Commerce  Com- 
mission, 206  U.  S.  142,  §  403. 
Cincinnati  Inclined  Plane  R.  Co.  v. 

Cincinnati,  52  Ohio  St.  609,  §  379. 
Cincinnati  Mut.  Health  Assur.  Co.  v. 

Rosenthal,  55  111.  85,  §  67. 
Cincinnati,  New  Orleans  &  Texas  Pac. 

Ry.   Co.   v.   Interstate  Commerce 

Commission,  162  U.  S.  184,  §§  153, 

403,  413. 
Cincinnati,  Volksblatt   Co.,  v.   Hoff- 

meister,  62  Ohio  St.  1S9,  §  11. 
Cincinnati,  Wilmington  &  Zanesville 

Rd.  Co.  v.  Commissioners  of  Clin- 
ton County,  1  Ohio  St.  77,  §  230. 
Citizens'  Bank  v.  Parker,  192  U.  S. 

73,  §§  278,  412,  455,  461. 
Citizens'    Savings    Bank    v.    Owens- 

boro,  173  U.  S.  636,  §§  317,  321, 

339,  412. 
Citizens'  Street  R.  Co.  v.  Africa,  100 

Tenn.  26,  §§  23,  255. 
Citizens'  St.  Ry.  Co.  v.  City  Ry.  Co., 

56  Fed.  746,  §  313. 
Citizens'  St.  Ry.  Co.  v.  City  Ry.  Co. 

(C.  C),  04  Fed.  647,  §  306. 
Citizens'  St.  Ry.  Co.  v.  Jones,  34  Fed. 

579,  §  257. 
Citizens'  St.  Ry.  Co.  v.  Memphis,  53 

Fed.  715,  §  481. 
City.     See  also  name  of. 
City  &,  County  of  San  Francisco  v. 

Oakland  Water  Co.  (Cal.),  83  Pac. 

61,  §  440. 
City  of  Colorado  Springs  v.  Weirlle 

(Colo.,  1908),  93  Pac.  1096,  §  287. 
City  Ry.  Co.  v.  Citizens'  St.  Ry.  Co. 

(Ind.),  52  N.  E.  157,  §  379. 
City  Ry.  Co.  v.  Citizens'  St.  R.  R. 

Co.,  166  U.  S.  557,  §§  287,  330,  349. 
City  Water  Co.  v.  State  (Tex.  Civ. 

App.).  33  S.  W.  259,  §488. 
Civil  Rights  Cases,  109  U.  S.  3,  §  391. 


xlviii  TABLE    OF    CASES    CITED 

Claflin   v.   Commonwealth   Ins.   Co.,  Clinton   Bridge,   The,    10  Wall.    (77 

110  U.  S.  81,  §§  268,  270.  U.  S.)  454,  §  128. 

Clark  v.  Adair  County,  79  Mo.  536,  Clinton  Electric  Light,  H.  &  P.  Co.  v. 

§  56.  Snell,  95  111.  App.  552,  §  390. 

Clark  v.  American  Express  Co.,  130  Close    v.    Glenwood    Cemetery,    107 

Iowa,  254,  §  252.  U.  S.  466,  §  321. 

Clark  v.  Mayor,  29  Md.  277,  §  221.  Coast  Line  R.  Co.  v.  Savannah,  30 

Clark  v.  Nash,  198  U.  S.  361,  §§  272,  Fed.  646,  §  337. 

275.  Coatesville  &  D.  St.  Ry.  Co.  v.  West 

Clark  v.  Turner,  73  Ga.  1,  §  271.  Chester  St.  Ry.  Co.,   206  Pa.  40, 

Clark  County  Court   v.   Warner,   25  §  379. 

Ky.  L.  Rep.  857,  §  178.  Cobb   v.   Commissioners  of  Durham 

Clarke  v.  Philadelphia  W.  &  B.  B.  County,  122  N.  Car.  307,  §§  12,  30. 

Co.,  4  Houst.  (Del.)  158,  §  404.  Cochise,  County  of,  v.  Copper  Queen 

Clarkesdale  Ins.  Agency  v.  Cole,  87  Consol.  Min.  Co.  (Ariz.,  1903),  71 

Miss.  637,  §  356.  Pac.  946,  §  182. 

Clark,  In  re,  65  Conn.  17,  §  366.  Cochran   v.  McCleary,  22   Iowa,   75, 

Clarksburg  Electric  Light  Co.  v.  City  §  21. 

of    Clarksburg,    47    W.    Va.    739,  Codd  v.  Rathbone,  19  N.  Y.  37,  §  51. 

§§  314,  348.  Coe  v.  Columbus,   Piqua  &  Indiana 

Clark's  Run  &  Turnpike  Rd.  Co.  v.  Rd.  Co.,  10  Ohio  St.  372,  §§  8,  11, 

Commonwealth,    16   Ky.    L.   Rep.  17,  38. 

681,  §  260.  Coe  v.  Errol,  116  U.  S.  517,  §  404. 

Clausen  &  Sons  Brewing  Co.  v.  The  Coffin  v.  Rich,  45  Me.  507,  §§  306, 

Baltimore     &     Ohio     Teleg.     Co.  311. 

(N.  Y.  Sup.  Ct.  Chambers,  18S4),  Cohen  v.  Wright,  22  Cal.  293,  §  205. 

2  Am.  Elec.  Cas.  210,  §  131.  Cohens  v.   Virginia,    6    Wheat.    (19 

Clearwater  v.  Meredith,  1  Wall.  (68  U.  S.)  264,  404,  418,  §§  216,  229. 

U.  S.)  25,  §  481.  See  "Appendix  C, "  herein. 

Cleary  v.  Hoobler,  207  111.  97,  §  287.  Cohn  v.  United  States,  152  U.  S.  212, 

Cleveland  v.   Cleveland  Electric   R.  §  152. 

Co.,   201   U.  S.   529,   §§286,   330,  Coite  v.  Society  for  Savings,  32  Conn. 

398.  173,  §  51. 

Cleveland    v.    Cleveland    Electric  R.  Colby  v.  Town  of  Mt.  Morris,   100 

Co.,  3  Ohio  Dec.  92,  §  337.  N.  Y.  Supp.  362,  §  200. 

Cleveland,  C.  C.  &  St.  L.  Ry.  Co.  v.  Cole  v.  Greenwich  Fire  Engine  Co., 

Hamilton,  200  111.  633,  §  279.  12  R.  I.  202,  §  81. 

Cleveland,  C.  C.  &  St.  L.  Ry.  Co.  v.  Cole  Mfg.  Co.  v.  Falls,  90  Tenn.  466, 

Illinois,  177  U.  S.  514,  §§  375,  378,  §  233. 

384.  Colegrave  Water  Supply  Co.  v.  City 

Cleveland,  City  of,  v.  Cleveland  Ry.  of    Hollingwood    (Cal.),    90    Pac. 

Co.,  194  U.  S.  517,  §§  398,  412.  1053,  §§  139,  380. 

Cleveland   Electric   Ry.   Co.   v.   City  Colliers   v.    Bingham,    22   Ohio   Cir. 

of  Cleveland,  135  Fed.  368,  §  286.  Ct.  R.  533,  §  229. 

Cleveland  Electric  Ry.  Co.  v.  Cleve-  Collins     v.     Henderson,      11     Bush 

land,  204  U.  S.  116,  §§  23,  254,  343.  (74  Ky.),  74,   §  262. 

Cleveland   Trust  Co.   v.   Lander,   62  Collins  v.  New  Hampshire,  171  U.  S. 

Ohio  St.  266,  §  440.  30,  §  238. 


TABLE    OF    CASES    CITED 


xlix 


Collins  Coal  Co.  v.  Hadley  (Ind.  App., 
1906),  78  N.  E.  353,  §  282. 

Colonial  City  Traction  Co.  v.  King- 
ston City  R.  Co.,  153  N.  Y.  540, 
§379. 

Colorado  Canal  Co.  v.  McFarland  & 
Southwell  (Tex.  Civ.  App.),  94  S. 
W.  400,  §§  63,  88. 

Colton  v.  City  of  Montpelier,  71  Vt. 
413,  §  453. 

Columbia  &  G.  R.  Co.  v.  Gibbs,  24 
S.  C.  60,  §  233. 

Columbia,  District  of,  v.  Washington 
Market  Co.,  108  U.  S.  243,  §  216. 

Columbia  Water  Power  Co.  v.  Camp- 
bell, 75  S.  C.  34,  §  412. 

Columbia  Water  Power  Co.  v.  Nun- 
amaker,  73  S.  C.  550,  §  300. 

Columbus  Southern  Railway  Co.  v. 
Wright,  151  U.  S.  470,  §  448. 

Columbus  Railway  Co.  v.  Wright,  89 
Ga.  574,  §  421. 

Colwell  v.  May's  Landing  Water 
Power  Co.,  19  N.  J.  Eq.  245,  §  233. 

Commercial  Bank  v.  Eastern  Bkg. 
Co.,  51  Neb.  766,  §  288. 

Commercial  Bell  Teleph.  Co.  v.  War- 
wick, 185  Pa.  623,  §  362. 

Commercial  Electric  Light  &  P.  Co. 
v.  Judson,  21  Wash.  49,  §§  424, 
435. 

Commercial  Electric  Light  &  P.  Co. 
v.  Tacoma,  17  Wash.  661,  §§  314, 
474. 

Commission.    See  name  of. 

Commissioners.     See  also  board  of. 

Commissioners  v.  Holyoke  Water 
Power  Co.,  104  Mass.  446,  §  320. 

Commissioners  of  Railroads  v.  Grand 
Rapids  &  I.  Ry.  Co.,  130  Mich. 
24S,  §  412. 

Commissioners'  Sinking  Fund  v. 
Green  &  Barren  River  Nav.  Co., 
79  Ky.  73,  §  336. 

.'ommonwcalth.  See  Attorney  Gen- 
eral; People;  State. 

( 'ommonwcalth  v.  Adams  Express 
Co.,  29  Ky.  L.  Rep.  1280,  §  53. 

iv 


Commonwealth    v.    Alger,    7    Cush. 

(Mass.)  53,  §§  366,  400. 
Commonwealth     v.     Anselvich,     186 

Massachusetts,  376,  §  399. 
Commonwealth  v.  Arrison,   15  Serg. 

&  R.  (Pa.)  127,  §§  1,  10,  122. 
Commonwealth    v.     Atlantic     Coast 

Line  Ry.  Co.,  106  Va.  61,  §§  170, 

411. 
Commonwealth    v.    Bacon,    1    Bush 

(Ky.),  210,  §§  21,  68. 
Commonwealth  v.  Barney,  24  Ky.  L. 

Rep.  2352,  §§231,  233. 
Commonwealth   v.    Beech   Creek   R. 

Co.,  188  Pa.  203,  §§  423,  449. 
Commonwealth  v.  Broad  St.  Rapid 

Transit   Co.,    219   Pa.    11,    §§  138, 

245. 
Commonwealth    v.     Brush    Electric 

Light  Co.,  204  Pa.  249,  §  435. 
Commonwealth     v.     Chesapeake     & 

Ohio  Ry.  Co.,  28  Ky.  L.  Rep.  1110, 

§§9,  423. 
Commonwealth    v.    City    of     Frank- 
fort, 13  Bush  (76  Ky.),  185,  §§  1,  3. 
Commonwealth  v.  Clark,  7  Watts  & 

S.  (Pa.)  127,  §  21. 
Commonwealth  v.  Connecticut  Val- 
ley St.  Rd.  Co.  (Mass.),  82  N.  E. 

19,  §  240. 
Commonwealth    v.    Covington   &   C. 

Bridge  Co.,  24  Ky.  L.  Rep.  1177, 

§  447. 
Commonwealth  v.  Downes,  24  Pick. 

(41  Mass.)  227,  §  233. 
Commonwealth   v.    Edison   Elec.    L. 

Co.,  145  Pa.  131,  §  78. 
Commonwealth  v.  Erie  Ry.  Co.,  62 

Pa.  2S6,  §  231. 
Commonwealth  v.  Fall  Brook  R.  Co., 

188  Pa. 199,  §  440. 
Commonwealth   v.   Fall   Brook  Coal 

Co.,  150  Pa.  488,  §§  51,423. 
Commonwealth     (Franklin    Co.)    v. 

Farmers'   Bank    of    Kentucky,    97 

Ky.  590,  §  339. 
Commonwealth  v.  Hartnett,  3  Gray 

(69  Mass.),  ir>(),  §  223. 


1 


TABLE    OF   CASES    CITED 


Commonwealth  v.  Hazen,  207  Pa.  52, 

§94. 
Commonwealth    v.    Keystone    Elec. 

Light,  Heat  &  Power  Co.,  193  Pa. 

245,  §  78. 
Commonwealth  v.   La  Bar   (Pa.),   5 

Lack.  L.  News,  229,  §  245. 
Commonwealth  v.  Ledman,   32  Ky. 

L.  Rep.  452,  §  447. 
Commonwealth  v.   Lehigh  Rd.   Co., 

129  Pa.  405,  §  425. 
Commonwealth  (Cambria  County)  v. 

Lloyd,   178  Pa.   308,   §§  230,   231, 

244. 
Commonwealth  v.  Louisville  &  Nash- 
ville R.  Co.,  20  Ky.  L.  Rep.  491, 

§  230. 
Commonwealth  v.  Mawe,  5  Watts  & 

S.  (Pa.)  418,  §  21. 
Commonwealth    v.    Mentz,     19    Pa. 

Super.  Ct.  283,  §  231. 
Commonwealth  v.  Middletown  Elec. 

Ry.  Co.,  23  Pa.  Co.  Ct.  R.  262, 

§  490. 
Commonwealth    v.     Milton,     12    B. 

Mon.  (51  Ky.)  212,  §  67. 
Commonwealth  v.  Mobile  &  O.  R.  Co., 

23  Ky.  L.  Rep.  784,  §  354. 
Commonwealth       v.       Monongahela 

Bridge  Co.,  216  Pa.  108,  §§11,  487. 
Commonwealth   v.   Moore,   25   Grat. 

(Va.)  951,  §  231. 
Commonwealth    v.    National    Bank, 

101  U.  S.  153,  §  421. 
Commonwealth  v.  Newport  L.  &  A. 

Turnpike  Co.,  29  Ky.  L.  Rep.  1285, 

§§  488,  490. 
Commonwealth  v.  New  York,  Lake 

Erie  &  Western  Rd.  Co.,   145  Pa. 

200,  §  17. 
Commonwealth  v.  New  York,  L.  E. 

&  W.  C.  R.  Co.,  10  Pa.  Co.  Ct.  129, 

§489. 
Commonwealth  v.  New  York,  P.  & 

O.  R.  Co.,  188  Pa.  169,  §§  423,  449. 
Commonwealth  v.  Northern  Electric 

Light  &  Power  Co.,   145  Pa.   105, 

§§  78,  82,  84. 


Commonwealth  v.  Northwestern  Mut- 
ual Life  Ins.  Co.,  32  Ky.  L.  Rep. 

796,  §  440. 
Commonwealth  v.  Ontario  C.  &  S.  R. 

Co.,  188  Pa.  205,  §  446. 
Commonwealth  v.  Paine,  207  Pa.  45, 

§  202. 
Commonwealth  v.  Pennsylvania  Coal 

Co.,  197  Pa.  551,  §  440. 
Commonwealth  v.  Pennsylvania  Coal 

Co.,     3     Dauph.     Co.    Rep.     142, 

§  440. 
Commonwealth  v.  People's  Five  Cent 

Sav.    Bank,    5    Allen    (87    Mass.), 

432,  §§  21,  231. 
Commonwealth  v.  People's  Traction 

Co.,  183  Pa.  405,  §  449. 
Commonwealth  v.  Philadelphia  &  E. 

R.     Co.,     164    Pa.     252,     §§  412, 

459. 
Commonwealth  v.  Phoenix  Bank,  11 

Met.  129,  §  65. 
Commonwealth  v.  Porter,  24  Ky.  L. 

Rep.  364,  §  215. 
Commonwealth    v.     Potter    County 

Water  Co.,  212  Pa.  463,  §  490. 
Commonwealth  v.  Richmond  &  R.  R. 

Co.,  87  Va.  355,  §  285. 
Commonwealth  v.  Standard  Oil  Co., 

101  Pa.  119,  §§  29,424. 
Commonwealth  v.  Trent,  25  Ky.  L. 

Rep.  1180,  §  236. 
Commonwealth  v.   Walsh's  Trustee, 

32  Ky.  L.  Rep.  460,  §  421. 
Commonwealth  (Bell  Teleph.  Co.)  v. 

Warwick,  185  Pa.  623,  §  96. 
Commonwealth  (ex  rel.  Freeman)  v. 

Westfield  Borough,  11  Pa.  Co.  Ct. 

R.  369,  §  15. 
Commonwealth  v.  Wilkinson,  16  Pick. 

175,  §  17. 
Condon  v.  Mutual  Reserve  Fund,  89 

Md.  99,  §  239. 
Coney  Island,  Ft.  H.  &  B.  R.  Co.  v. 

Kennedy,    44    N.    Y.    Supp.    825, 

§  4S6. 
Conly  v.  Commonwealth,  98  Ky.  125, 

§  245. 


TABLE    OF    CASES    CITED 


Conn  v.  Cass  County  Commrs.,   151 

Ind.  517,  §  265. 
Connecticut  Mut.  Life  Ins.  Co.  v.  Tal- 
bot, 113  Ind.  373,  §  264. 
Connell  v.  Western  Union  Teleg.  Co., 

108  Mo.  459,  §  376. 
Conner  v.  Commonwealth,   13  Bush 

(76  Ky.),  714,  §  233. 
Connolly  &  Dee  v.  Union  Sewer  Pipe 

Co.,  184  U.  S.  540,  §  298. 
Connor  v.  City  of  Marshfield  (Wis.), 

107  N.  W.  639,  §  464. 
Consolidated   Gas  Co.   v.   Baltimore 
City,  101  Md.  541,  §§  2,  3,  12,  14, 
15,  16,  34,  423. 
Consolidated    Gas    Co.    v.    City    of 
New  York,   157  Fed.  849,   §§  388, 
406,  409. 
Consolidated    Gas    Co.     v.    County 
Commrs.  of  Baltimore  County,  99 
Md.  403,  §  178. 
Consolidated     Gas    Co.     v.     County 
Commrs.  of  Baltimore  County,  98 
Md.  689,  §  194. 
<  onsolidated  Gas  Co.  v.  Mayer,   14(3 

Fed.  150,  §  416. 
Consolidated  Gas  Co.  v.  Mitchell  (Pa. 
C.    P.),    1     Dauph.    Co.    Rep.    71. 
§  317. 
Consolidated  National  Bank  v.  Pima 
County,  5  Ariz.   142,   §§421.  439. 
Consolidated  St.  Ry.  Co.  v.  Toledo 
Elect.  St.  Ry.  Co.,  6  Ohio  X.  P.  537, 
§43. 
Consolidated   Traction    Co.    v.    East 
Orange  Township,  63  X.  J.  P.  669, 
§  379. 
Consumers'    Gas  Trust   Co.  v.  Har- 

less,  131  Ind.  146,  ><  388. 
Continental  Fire  Ins.  Co.  v.  Whitaker 

&  Dillard,  112  Tenn.  151,  §  300. 
Continental   Ins.   Co.   v.   Riggen,   31 

Ore.  336,  §  270. 
Converse  v.  United  States,  21  How. 

62  U.  S.)  463,  §  205. 
Conway    v.    Taylor's    Executor,     1 
Black  (66  U.  Sj.  603,   §§  15,  26, 
144. 


Conyers  v.  Commission  of  Roads,  116 

Ga.  101,  §  215. 
Cook    v.     Xorth    Bergen    Township 
(X.  J.),  59  Atl.  1035,  §§  337,  380. 
Cook  v.  Pennsylvania,  97  U.  S.  566, 

§404. 
Cook  v.  State,  110  Ala.  40,  §  248. 
Cook  v.  Township  of  Xorth  Bergen, 

72  X.  J.  L.  119,  §§  337,  380. 
Cooke    v.    State    Xational    Bank    of 

Boston,  52  X.  Y.  96,  §  67. 
Cooper  v.  Williams,  4  Ham.  (4  Ohio) 

253,  §  72. 
Cooper    v.    Yoakum,    91    Tex.    391, 

§268. 
Cooper  Hospital  v.  City  of  Camden 

(X.  J.  L.),  57  Atl.  260,  §  455. 
Cooper   Mfg.    Co.    v.    Ferguson,    113 

U.  S.  727,  §§  217,  265,  267,  368. 
Coosaw  Mining  Co.  v.  South  Carolina, 

144  U.  S.  550,  §§  244,  257. 
Copper  Queen  Consol.   Min.   Co.   v. 
Board     of     Equalization     (Ariz., 
1906),  84  Pac.  511,  §§  262,  269. 
Coquard  v.  Xational  Linseed  Oil  Co., 

171  111.  480,  §  486. 
Corfield  v.  Coryell,   4   Wash.   (U.  S. 

C.  C.)  371,  §  21. 
Cornell    v.    Coyne,    192    U.    S.    418, 

§§  244,  254. 
Corrigan    v.    Coney    Island    Jockey 

Club,  22  X.  Y.  Supp.  394,  §  96. 
Corry  v.  Mayor  &  Council  of  Balti- 
more, 196  U.  S.  466,  §  440. 
Costello  v.  Muheim  (Ariz.,  1906),  84 

Pac.  906,  §  269. 
Gotten  v.  County  Commissioners,  6 

Fla.  610,  §  289. 
(  otter  v.  Ponder,  6  Fla.  610,  §  289. 
Cutting  v.   Kansas  City  Stockyards 
Co.,  183  U.  S.  79,  §§110,  298,  391, 
110. 
Coulan  v.  Doull,  133  U.  S.  216,  §  269. 
Coulter  v.  Louisville  &  N.  R.  Co.,  196 

U.S.  599,  §422. 
Coulter  v   Stafford   (C.  C),  48  Fed. 

200.   §  200. 
Councilmen.    See  board  of. 


lii 


TABLE    OF    CASES    CITED 


County.    See  name  of. 

County  v.  Crittenden,  94  Fed.  613, 
§52. 

County  Commissioners  v.  Chandler, 
96  U.  S.  205,  §§  15,  17,  63,  97. 

County  of  San  Bernadino  v.  South- 
ern Pac.  Rd.  Co.,  137  Cal.  659,  §  56. 

Court  of  Insolvency  v.  Melden,  69 
Vt.  110,  §  269. 

Coverdale  v.  Edwards,  155  Ind.  374, 
§  336. 

Covington  v.  City  of  East  St.  Louis, 
78  111.  548,  §  215. 

Covington  v.  First  Nat.  Bank  of  Cov- 
ington, 198  U.  S.  100,  §  460. 

Covington  v.  Kentucky,  173  U.  S. 
231,  §§  272,  278,  310,  321,  458. 

Covington  &  Cincinnati  Bridge  Co.  v. 
Kentucky,  154  U.  S.  204,  §§  127, 
145,  391. 

Covington  &  Lexington  Turnpike  Co. 
v.  Sandford,  164  U.  S.  578,  §§  66, 
255,  397,  399,  409,  416,  484. 

Covington,  City  of,  v.  Covington  & 
Cincinnati  Bridge  Co.,  10  Bush 
(73  Ky.),  69,  §  307. 

Covington,  City  of,  v.  District  of 
Highlands,  24  Ky.  L.  Rep.  433, 
§215. 

Covington  Drawbridge  Co.  v.  Shep- 
herd, 21  How.  (62  U.  S.)  112,  §§  15, 
17,  70,  148. 

Covington  Gas  Light  Co.  v.  City  of 
Covington,  22  Ky.  L.  Rep.  796, 
§476. 

Covington  Gas  Light  Co.  v.  Coving- 
ton, 13  Ky.  L.  Rep.  577,  §  435. 

Cowell  v.  Springs  Co.,  100  U.  S.  55, 
§351. 

Cox  v.  State,  8  Tex.  App.  254,  §  224. 

Coyle  v.  Mclntire,  7  Houst.  (Del.)  44, 
§51. 

Crabbier  v.  Old  Dominion  Bldg.  & 
Loan  Assoc,  95  Va.  670,  §  287. 

Craft  v.  Lent,  103  N.  Y.  Supp.  366, 
§  200. 

Craig  v.  Missouri,  4  Pet.  (29  U.  S.) 
410,  §  205. 


Craig  v.  The  People,  47  111.  487,  §  17. 
Cram  v.  Bliss,  47  Conn.  592,  §  466. 
Crawford  v.  Burke,   195  U.  S.   176, 

§§  248,  270. 
Crawfordsville   v.   Braden,   130    Ind. 

149,  §  11. 
Crease    v.    Babcock,    23    Pick.    (40 

Mass.)  334,  §  247. 
Crescent  City  Gas  Light  Co.  v.  New 

Orleans  Gas  Light  Co.,  27  La.  Ann. 

138,  §  313. 
Criswell   v.   Railway   Co.,    17   Mont. 

189,  §  139. 
Crocker  v.  Scott,  149  Cal.  575,  §  453. 
Croley  v.  California  Pac.  R.  Co.,  134 

Cal.  557,  §  200. 
Croomers  v.  State,  40  Tex.  Cr.  App. 

672,  §  220. 
Crossley   v.   East   Orange   Township 

Committee,  62  N.  J.  L.  583,  §  440. 
Crowder   v.    Fletcher,    80   Ala.    219, 

§  252. 
Crowley  v.  State,  11  Ore.  512,  §  231. 
Crowther  v.  Fidelity  Ins.,  T.  &  S.  D. 

C.  (C.  O),  85  Fed.  41,  §  245. 
Crozer  v.  People,  206  111.  464,  §  421. 
Crum  v.  Bliss,  47  Conn.  592,  §§  1,  3. 
Crumley  v.  Watauga  Water  Co.,  99 

Tenn.  420,  §  63. 
Crutcher  v.  Kentucky,  141  U.  S.  47, 

§§  358,  359. 
Culpepper  v.  International  &  G.  N. 

R.  Co.,  90  Tex.  627,  §  284. 
Cumberland  &  O.  R.  Co.  v.  Barren 

County  Court,  10  Bush  (73  Ky.), 

604,  §  315. 
Cumberland    River    Lumber   Co.    v. 

Commonwealth,  6  Ky.  L.  Rep.  295, 

§3. 
Cumberland  Teleph.  &  Teleg.  Co.  v. 

City  of  Evansville,  127  Fed.  187, 

§469. 
Gumming   v.    Hyatt,    54    Neb.    635, 

§  231. 
Cummings  v.  Chicago,  188  U.  S.  410, 

§145. 
Cummings  v.  Nat.  Bank,   101  U.  S. 

153,  §§  182,  422. 


TABLE    OF    (ASKS    CITED 


liii 


Cummings  v.  Reading  School  Dis- 
trict, 19S  U.  S.  458,  §§  295,  366. 

Curry  v.  District  Township  of  Sioux 
City,  62  Iowa,  102,  §  56. 

Curtis  v.  Whitney,  13  Wall.  (80 
U.  S.)  68,  §  301. 

Curtiss  v.  Leavitt,  15  N.  Y.  9,  §§  2, 
18,  32,  51. 

Gushing  v.  Warwick,  9  Gray  (75 
Mass.),  382,  §  213. 

Cutshaw  v.  Fargo,  8  Ind.  App.  691, 
§51. 

D. 

Dabbs  v.  State,  39  Ark.  353,  §  366. 
Daily     v.     Swope,     47     Miss.     367, 

§  223. 
Dallas    v.    Redman,    10    Colo.    297, 

§245. 
Dallas   Consol.    Electric   Ry.   Co.    v. 

City  of   Dallas   (Tex.   Civ.    App.). 

65  S.  W.  201,  §  433. 
Dallas  Consolidated  Traction  Co.  v. 

Maddox  (Tex.  Civ.  App.),  31  S.  W. 

702,  §  464. 
Dalles   Lumbering  Co.  v.  Urquhart, 

16  Ore.  67,  §  63. 
Danbury  &  Xorwalk  R.  Co.  v.  Wil- 
son, 22  Conn.  435,  §  350. 
Daniel  Ball,  The,  10  Wall.  (77  U.  S.) 

557,  §  404. 
Danville  v.  Danville  Water  Co.,  180 

111.  235,  §§  63,  118,  195. 
Danville  v.   Hatcher,    101    Va.   523, 

§  136. 
Danville    St.    Car    Co.    v.    Wooding 

(Danville,  Va.,  C.  C),  2  Va.  L.  Reg. 

244,  §  387. 
Danville    St.    Ry.    &    Light    Co.    v. 

Water,  116  111.  App.  519,  §  337. 
Dartmouth  College  v.  Woodward,   I 

Wheat.  (17  U.  S.)  518,  §§  11,  21, 

28,    12,  50,  55,   ."»7,  61,  63,  69,  73. 

136,  220,  302,  310,  312,  339*  340. 
Dastcrvigues   v.    United   States,    122 

Fed.  35,  §  152. 
Davenport  v.  Kleinschmitf ,  0  Mon1 
502,  §§  22,  24. 


Davidson   v.    Koehler,    76   Ind.   398, 

§  215. 
Davidson  v    New  Orleans,  96  U.  S. 

97,  §  297. 
Davidson,    The    (U.    S    D.   O),    122 

Fed.   1006,  §  119. 
Davis  v   Burke,  179  U.  S.  399,  §  225. 
Davis  v.  Cooke,  9  Nev.  134,  §  67. 
Davis  v.  Elmira  Savings  Bank,  161 

U.  S.  275,  §  389. 
Davis  v.  Fairbairn,  3  How.  (44  U.  S.) 

636,  §  283. 
Davis  v.  Gray,   16  Wall.   (83  U.  S.) 

203,  §§  12,  34,  416. 
Davis   v.    Mayor   of   New   York,    14 

N.  Y.  506,' §§  15,  17. 
Davis   &   Farnum   Mfg.   Co.   v.   Los 

Angeles,  189  U.  S.  207,  §§  177,  304, 

416. 
Davis  &  Rankin  Bldg.  &  Mfg.  Co.  v. 

Caigle  (Tenn.),  53  S.  W.  240,  §  354. 
Dawson   County   v.   Clark,    58   Neb. 

756,  §  282. 
Day  v.   Day   (Idaho),   86   Pac.   531, 

§  226. 
Day  v.  Roberts,  101  Va.  24S,  §  421. 
Day  v.  Stetson,  8  Greenl.  (8  Me.)  365, 

§  57. 
Dean  v.  Davis,  51  Cal.  406,  §§  51,  52, 

89. 
Dearborn  v.  Ames,  8  Gray  (74  Mass.), 

1,  §  231. 
Dearborn     v.     Boston,     Concord     & 

Montreal  Rd.,  24  N.  H.  179,  §§  61, 

98. 
Do  Baker  v.  Southern  Cal.  R.  Co..  106 

Cal.  257.  §89. 
Debs,  In  re,  1  58  CJ.  S.  564,  §  368. 
Decker  v.  Baltimore  &  N.  Y.  R.  Co., 

30  Fed.  723,  §  127. 
Deckler    v     Frankenberger,    30    La. 

Ann.  410,  §  205. 
Deems  v.   Mayor  &  City  Council  of 

Baltimore,  80  Md.  173,  §  366. 
Deffeback  v.  Hawke,  115  U.  S.  392, 

§  270. 
Defiance  Water  Co.  v.  Dehanre.  191 
U.  S.  184,  $  310. 


liv 


TABLE    OF   CASES    CITED 


Deitch  v.  Staub,  115  Fed.  309,  §  250. 
De   Lancey   v.    Hawkins,   49   N.   Y. 

Supp.  469,  §§  146,255. 
De   la   Vergne   Refrigerating   Co.   v. 

German  Sav.  Institution,  175  U.  S. 

40,  §  476. 
Delaware  v.  Atl.  Teleg.  &  Teleph.  Co., 

7  Houst.  (Del.)  269,  §  67. 
Delaware,  L.  &  W.  R.  Co.  v.  Central 

Stockyards  &  T.  Co.,  43  N.  J.  Eq. 

71,  §  342. 
Delaware,  L.  &  W.  Rd.  Co.  v.  Penn- 
sylvania,   198   U.   S.   341,    §§  425, 

426,  448,  454. 
Delaware  Railroad  Tax,  18  Wall.  (85 

U.  S.)  206,  §§  412,  417,  419,  420, 

425,  439,  455,  481,  482. 
Delmas  v.   Insurance  Co.,    14   Wall. 

(81  U.  S.)  661,  §  305. 
Demaree  v.  Johnson,   150  Ind.  419, 

§  256. 
Deneen  v.  Houghton  County  St.  Ry. 

Co.,  150  Mich.  235,  §  387. 
Denison   &   Sherman   R.   Co.   v.   St. 

Louis    Southwestern    R.    Co.,    30 

Tex.  Civ.  App.  474,  §§  12,  20,  322, 

478. 
Denniston  &  Sherman  Ry.  Co.  v.  St. 

Louis  &  Southwestern  Ry.  Co.,  30 

Tex.  Civ.  App.  474,  §§  12,  20,  322, 

478. 
Denver  v.   Campbell,   33  Colo.    162, 

§  236. 
Denver  &  N.  O.  R.  Co.  v.  Atchison, 

Topeka  &  Santa  Fe  R.  Co.,  15  Fed. 

650,  §  227. 
Denver  &  Swansea  Ry.  Co.  v.  Denver 

City  R.  Co.,  2  Colo.  673,  §§  2,  14, 

132,  185. 
Denver  Circle  R.  Co.  v.   Nester,   10 

Colo.  403,  §  205. 
Deposit  Bank  v.  Frankfort,  191  U.  S. 

499,  §§  339,  401. 
Deposit     Bank     of     Owensboro     v. 

Daviess      Co.,      102       Ky.      174, 

§  339. 
Derby   Turnpike   Co.    v.    Parks,    10 

Conn.  522,  §  311. 


Deringer  v.  Deringer,  5  Houst.  (Del.) 

416,  §  51. 
Dern  v.  Salt  Lake  City  R.  Co.,   19 

Utah,  46,  §  486. 
Derry  Township  Road,  30  Pa.  Super. 

Ct.  538,  §  17. 
Des   Moines   v.   Des  Moines    Water- 
works Co.,  95  Iowa,  348,  §  390. 
Des  Moines,  City  of,  v.  Chicago,  R.  I. 

&  P.  R.  Co.,  41  Iowa,  569,  §  33. 
Detroit  v.  Detroit  &  Howell  Plank 

Road  Co.,  43  Mich.  140,  §  17. 
Detroit    v.    Detroit   Citizens'    Street 

Ry.  Co.,  184  U.  S.  368,  §§  245,  399. 
Detroit  v.  Detroit  Ry.,  134  Mich.  11, 

§  337. 
Detroit  Citizens'  Ry.  Co.  v.  Detroit, 

64  Fed.  628,  §§  250,  379. 
Detroit  Citizens'  St.  Ry.  Co.  v.  De- 
troit, 110  Mich.  384,  §  23. 
Detroit,  City  of,  v.  Detroit  Citizens' 

St.  Ry.  Co.,  184  U.  S.  368,  §§  245, 

399. 
Detroit,   City  of,   v.   Detroit  United 

Ry.,  133  Mich.  608,  §§111,  337. 
Detroit,  City  of,  v.  Donovan  (Mich.), 

8  Det.  L.  News,  465,  §  440. 
Detroit,  City  of,  v.  Mutual  Gas  Co.  & 

Mutual   Gas   Light   Co.,   43   Mich. 

594,  §  11. 
Detroit  Driving  Club  v.  Fitzgerald, 

109  Mich.  670,  §  42. 
Detroit   Fire   &   Marine   Ins.   Co.   v. 

Hartz  (Mich.),  94   N.  W.  7,  §  423. 
Detroit,  Fort  Wayne,  Belle  Isle  Ry. 

v.  Osborn,   1S9  U.  S.  383,  §§  149, 

385. 
Detroit,  G.  H.  &  M.  Ry.  Co.  v.  Inter- 
state   Commerce   Commission,    74 

Fed.  803,  §  381. 
Detroit,  Grand  Huron  &  M.  Ry.  Co. 

v.  Powers,  138  Fed.  264,  §  459. 
Devon  v.  Boske,  23  Ky.  L.  Rep.  361, 

§421. 
Dewey  v.  Toledo,  A.  A.  &  N.  M.  Co., 

91  Mich.  351,  §  476. 
Diamond  Glue  Co.  v.  United  States 

Glue  Co.,  187  U.  S.  611,  §  235. 


TABLE    OF   CASES    CITED 


Iv 


Diamond  Match  Co.   v.   Ontonagon, 

188  U.  S.  82,  §  404. 
Dick  v.  United  States,  208  U.  S.  340, 

§  139. 
Dickinson    v.    City   of    Boston,    188 

Mass.  595,  §  11. 
Dieterle   v.  Ann  Arbor   Paint  &  En- 
amel Co.   (Mich.),   107   N.  W.   79, 

§476. 
Dietrich  v.  Scherman,  117  Mich.  298, 

§127. 
Dike  v.  State,  38  Minn.  366,  §  9. 
Dillard  v.  Webb,  55  Ala.  468,  §§51, 

68. 
Dillehay  v.  Hickey,  24  Ky.  L.  Rep. 

1220,  §  253. 
Dillon  v.  Dougherty,  2  Grant's  Cas. 

99,  §  311. 
Dillon  v.  Erie  R.  Co.,  43  N.  Y.  Supp. 

320,  §  412. 
Dillon  v.  Kansas  City,  Ft.  S.  &  M.  R. 

Co.,  67  Kan.  687,  §  63. 
Dinner  v.  Humberstone,  26  Can.  Sup. 

Ct.  252,  §  195. 
Directors.     See  also  board  of. 
Directors  for  Leveeing  Wabash  River 

v.  Houston,  71  111.  318,  §  89. 
District  of  Columbia  v.  Arms,  8  App. 

D.  C.  393,  §  234. 
District  of  Columbia  v.  Washington 

Market  Co.,  108  U.  S.  243,  §  262. 
Dixon    v.    Ricketts,    26    Utah,    215, 

§  269. 
Dobbins  v.  City  of  Los  Angeles,  195 

U.     S.     223,     §§   136,     183,     391, 

416. 
Dobbins  v.  City  of  Los  Angeles,  139 

Cal.  179,  §  136. 
Dobbins  v.  First  National  Bank,  112 

111.  553,  §311. 
Dobbins  v.  Los  Angeles,   195  U.  S. 

223,  §§  136,  183,  391,416. 
Dodge    v.    Woolsey,    18    How.    (.">!) 

U.  S.)  331,  §§  120,  229,  334. 
Doe  v.  Considine,  6  Wall.  (7:5  U.  S.) 

458,  §  219. 
Donovan   v.    Pennsylvania  Co.,    199 

U.  S.  27'.),  §5  97,  :;il 


Dooley  v.  United  States,  183  U.  S. 

151,  §  205. 
Doon    Township    v.    Commins,    142 

U.  S.  366,  §  343. 
Dorr  v.  United  States,  195  U.  S.  138, 

§130. 
Dorsey,    In   re,    7   Port.    (Ala.)    293, 

§  289. 
Douglass  v.  Pacific  Mail  S.  S.  Co.,  4 

Cal.  304,  §  64. 
Douglass  v.  Boonsborough  Turnpike 

Road  Co.,  22  Md.  219,  §§  72,  109. 
Douglass  v.  County  of  Pike,  101  U.  S. 

677,  §  259. 
Douglass  v.  Kentucky,  168  U.  S.  488, 

§  303. 
Douglass's  Appeal,  118  Pa.  65,  §§1, 

15. 
Dover    v.     Portsmouth    Bridge,     17 

N.  H.  200,  §  127. 
Dow  v.   Beidelman,   125  U.  S.  680, 

§§  167,  381,  391,  400,  409. 
Dowlan    v.    Sibley,    County    of,    36 

Minn.  430,  §  56. 
Dowling  v.   Lancashire   Ins.   Co.,  92 

Wis.  63,  §  163. 
Downes  v.   Bidwell,   182  U.  S.   244, 

§§  120,  130,  205,  213,  218,  262,  290. 
Downes    v.    Parshall,    3    Wyo.    425, 

§  289. 
Downing  v.  Indiana  State  Board  of 

Agriculture,  129  Ind.  443,  §  68. 
Downing    v.     More,     12   Colo.    316, 

§  63. 
Doyle    v.    Continental    Ins.    Co.,    94 

U.  S.  535,  §§  352,  355,  356. 
Drady  v.   Des  Moines  &  Ft.   D.   R. 

Co.,  57  Iown,  393,  $  323. 
Dred  Scott  v   Sandford,  19  How.  (60 

U.  S.)  393,  §§  204,  218,  289. 
Driscoll  v.  Norwich  &  Worcester  II. 

Co.,  65  Conn.  230,  §§  11,  12,  11,  38, 

63,  464. 
Drummer  v  Cox,  165  111.  648,  §  252. 
Drummond  Tohacco  Co.  v.  Randle, 

114  III.   112.  §  11. 
I)iiI>ik|U(>  v.  Illinois  Cent.  R.  Co.,  39 
[owa,  56,  §448. 


lvi 


TABLK    OF   CASES    CITED 


Ducat  v.  Chicago,  10  Wall.  (77  U.  S.) 

410,  §  357. 
Ducat  v.  Chicago,  48  111.  172,  §  67 
Duchay  v.  District  of  Columbia,  25 

App.  D.  C.  434,  §  236. 
Duffield  v.  Pike,  71  Conn.  521,  §  270. 
Duffy,   In  re,   4   Brewst.    (Pa.)    531, 

§21. 
Dufour  v.  Stacey,  90  Ky.  288,  §  26. 
Duke  of  Northumberland  v.  Hough- 
ton, L.  R.  5  Ex.  127,  §  10. 
Dulaney  v.  United  R.  &  Elect.  Co., 

104  Md.  423,  §§  14,  79,  243. 
Duluth    &    I.    R.    Co.    v.    St.    Louis 

County,  179  U.  S.  302,  §  459. 
Duluth,  City  of,   v.  Duluth  Teleph. 
Co.,  84  Minn.  486,  §§  33,  47,  311, 
314. 
Dunbar    v.    Boston    &    Providence 

R.  R.  Co.,  181  Mass.  383,  §  399. 
Dunbar  v.  Old  Colony  St.  Ry.  Co., 

188  Mass.  180,  §  337. 
Duncan  v.  Missouri,   152  U.  S.  377, 

§§  294,  296. 
Duncombe   v.    Prindle,    12   Iowa,    1, 

§  233. 
Dundy  v.  Chambers,  23  111.  369,  §  26. 
Dunn  v.  Agricultural  Soc,  46  Ohio 

St.  93,  §  68. 

Durham  v.  State,  117  Ind.  477,  §  212. 

Dusenberry  v.  New  York,  W.  &  C. 

Traction  Co.,  61  U.  S.  Supp.  420, 

§490. 

Dwight   v.   Merritt,    140   U.   S.   213, 

§270. 
Dyer  v.  Bayne,  54  Md.  87,  §  205. 
Dyer   v.    Tuscaloosa    Bridge   Co.,    2 
Port.    (Ala.)    296,    §§  15,    24,    141, 
144. 

E. 
Eagle  v.  Beard,  33  Ark.  497,  §  56. 
Eagle  Ins.  Co.  v.  Ohio,  153  U.  S.  446, 

§§  354,  366. 
Easley  v.  Bone,  39  Mo.  App.  388, 

§264. 
East  Canada  Creek  Electric  Light  & 
Power  Co.,  In  re,  99  N.  Y.  Supp. 
109,  §§  63,  76. 


Eastern    Bldg.     &    Loan    Assn.     v. 

Williamson,  189  U.  S.  122,  §  273. 
East  Granby,  Town  of,  v.  Hartford 
Electric  Light  Co.,  76  Conn.  169, 
§440. 
East  Grant   Street,  In   re,  121    Pa. 

596,  §  234. 
East   Hartford    v.    Hartford    Bridge 
Co,     10    How.    (51    U.    S.)     511, 

§  340. 
East  Line  &  R.  R.  Co.  v.  Rushing,  69 

Tex.  306,   §§  254,  464. 
Eastman  v.  Clackamas  County   (C. 

C),  32  Fed.  24,  §  216. 
Easton    v.    Iowa,    188    U.    S.    220, 

§§  388,  389. 
East  St.  Louis  Connecting  Rd.  Co.  v. 

Jarvis,  92  Fed.  735,  §481. 
East    Tennessee,    etc.,    Ry.    Co.   v. 

Interstate  Commerce  Commission, 

181  U.S.  1,  §§413,  414. 
East  Tennessee  Teleph.  Co.  v.  Russel- 

ville,  106  Ky.  L.  Rep.  305,  §§  44, 

379. 
East  Tennessee,  Virginia  &  Georgia 

R.  Co.  v.  Hamblen,  102  U.  S.  275, 

§§  12,  17,  20. 
Eau  Claire  Nat.  Bank  v.  Benson,  106 

Wis.  624,  §  227. 
Eckerson    v.    City    of    Des    Moines 

(Iowa),  115  N.  W.  177,  §§  234,  262, 

263,  265,  282,  289. 
Eckington  &  Soldiers'  Home  Ry.  Co. 

v.  McDevitt,  191  U.  S.  103,  §  100. 
Edgeworth  v.  Wood,  58  N.  J.  L.  463, 

§52. 
Edison   Elect.    Ilium.   Co.   of   B.   v. 

Hopper,  85  Md.  110,  §  241. 
Edison  Electric  Illuminating  Co.  v. 

Spokane  City,  22  Wash.  168,  §  424. 
Edison   Electric   Light  Co.   v.   New 

Haven  Electric  Co.,  35  Fed.  233, 

§481. 
Education.     See  board  of. 
Edwards  v.   Carson  Water  Co,   21 

Nev.  469,  §  51. 
Edwards  v.  Kearzey,  96  U.  S.  595, 

§  309. 


TABLE    OF    CASES    CITED 


lvii 


Edwards  v.  Warren  Linoline  &  Gaso- 
line Works,  168  Mass.  564,  §§  52, 

53. 
Einstman  v.  Black,  14  111.  App.  381, 

§15. 
Eisenhuth  v.  Ackerson,  105  Cal.  87, 

§379. 
Electric    City    Ry.    Co.    v.    City    of 

Niagara  Falls,  95  N.  Y.  Supp.  73, 

§188. 
Electro  Magnetic  M.  &  D.  Co.  v.  Van 

Auken,  9  Colo.  204,  §  238. 
Ellis  v.   Common  Council  of  Grand 

Rapids,  123  Mich.  567,  §  118. 
Ellis  v.  Marshall,  2  Mass.  269,  §  348. 
Ellis  v.  United  States,  206  U.  S.  246, 

§261. 
Elmendorf  v.  Taylor,  10  Wheat.  (23 

U.S.)  152,  §§  272,  274. 
Elmore    v.    Commissioners,    135    111. 

269,  §  52. 
Elve  v.  Boyton  (C.  A.)  [1891],  1  Ch. 

501,  §  122. 
Emerson  v.  Commonwealth,  108  Pa. 

Ill,  §§  23,  254. 
Emerson  v    Goodwin,  9  Conn.  422, 

§64. 
Employers'     Liability     Cases.       See 

Howard  v.  Illinois  Central  R.  Co. 

and    Brooks   v.    Southern    Pacific 

Co. 
Employers'  Liability  Cases,  207  U.  S. 

463,  §§  261,  269,  370,  375,  384. 
Enfield  Toll  Bridge  Co.  v.  Hartford  & 

New  Haven  Rd.  Co.,  17  Conn.  40, 

§§  26,  102. 
English  v.  State,  31  Fla.  340,  §  212. 
Engstad  v.  Grand  Forks  County,  10 

N.  Dak.  54,  §  227. 
Epping  v.  City  of  Columbus,  117  Ga. 

263,  §§  205,  206,  216,  218. 
Erb  v.  Marsh,  177  U.  S.  584,  §  276. 
Erb  v.  Morasch,  177  U.  S.  584,  §  381. 
Erie  &  Northeast  Rd.  v.  Casey,  26 

Pa.  287,  §§  231,  289. 
Erie    Ry.    Co.    v.    Pennsylvania,    21 

Wall.  (88  U.S.)  492,  §334. 
Erwin  v.  Moore,  15  Ga.  361,  §  239. 


Erwin  v.  State,  Wolley,  150  Ind.  332, 

§64. 
Escanaba  &  Lake  Michigan  Transp. 

Co.    v.    Chicago,    107    U.   S.    678, 

§§  145,  152,  186,224. 
Essex  Public  Road  Board  v.  Skinkle, 

104  U.  S.  334,  §  315. 
Estill  County  v.  Embry,  144  Fed.  913, 

§§  102,  175. 
Eureka    v.    Wilson,     15    Utah,    67, 

§§  185,  234. 
Eureka  Hill  Mining  Co.   v.   City  of 

Eureka,  22  Utah,  447,  §  440. 
Evangelical  Baptist  Missionary  Soc. 

v.  City  of  Boston,  78  N.  E.  407, 

§454. 
Evans  v.  Boston  Heating  Co.,   157 

Mass.  37,  §  85. 
Evans  v.    Hughes,    3  S.   Dak.   580, 

§§  15,  17,  144,  143. 
Evans  v.  Kroutinger,  9  Idaho,  153,  72 

Pac.  882,  §§  26,  463. 
Evanston     Ilium.     Co.     v.     Kocher- 

sperger,  175  111.  26,  §  78. 
Evansville,    Henderson   &   Nashville 

R.    R.    Co.    v.    Commonwealth,    9 

Bush  (72  Ky.),  438,  §§  20,  479. 
Excelsior    Planting    &    Mfg.    Co.    v. 

Green,  39  La.  Ann.  455,  §  245. 
Exchange     Bank     of    Columbus    v. 

Hines,  3  Ohio  St.  1,  §  311. 
Exchange  Bank  of  Macon  v.  Macon 

Construction  Co.,  97  Ga.  1,  §  11. 
Ex  parte.    See  name  of  party. 
Express  Co.  v.  Seibert,  142  U.  S.  339, 

§422. 
Express  Cases,  117  U.  S.  1,  §  381. 

F. 
Factors'  &  Traders'  Ins.  Co.  v.  New 

Harbor    Protection    Co.,    37     La. 

Ann.  233,  §  61. 
Fairbanks  v.  United  States,  181  U.  S. 

283,  §§  217,  231,  290. 
Fairfield  v.  County  of  Gallatin,   100 

U.  S.  47,  §  272. 
Fair  Haven  &  W.  R.  Co.  v.  City  of 

New  Haven,  75  Conn.  442,  §  337. 


lviii 


TABLE    OF   CASES    CITED 


Fair's  Estate,  In  re,   12S  Cal.  607, 

§440. 
Fanning  v.  Osborne,  102  N.  Y.  441, 

§  148. 
Fargo  v.  Auditor  General,  57  Mich. 

598,  §  359. 
Fargo  v.  Hart,  193  U.  S.  490,  §§  358, 

359,  419. 
Fargo  v.  Louisville,  New  Albany  & 

Chicago  Ry.  Co.,  10  Biss.   (U.  S. 

C.  C.)  273,  §  53. 
Fargo  v.   Michigan,    121   U.   S.   230, 

§404. 
Faribault,    City    of,    v.    Misener,    20 

Minn.  396,  §  218. 
Farmer  &  Getz  v.  Columbiana  County 

Teleg.     Co.,     72     Ohio     St.     526, 

§  179. 
Farmers'  &  Mechanics'  Nat.  Bank  v. 

Dearing,  91  U.  S.  29,  §  126. 
Farmers'   &.  Merchants'   Ins.   Co.   v. 

Dobney,  189  U.  S.  301,  §  299. 
Farmers'   &   Merchants'   Ins.   Co.   v. 

Narrah,  47  Ind.  236,  §  67. 
Farmers'  Deposit  Nat.  Bank  v.  West- 
ern Pennsylvania  Fuel  Co.,  215  Pa. 

115,  §  389. 
Farmers'     Loan    &    Trust     Co.     v. 

City    of  Meridian,    139   Fed.    673, 

§  298. 
Farmers'  Loan  &  Trust  Co.  v.  Funk, 

49  Neb.  353,  §  226. 
Farmers'  Loan  &  Trust  Co.  v.  Gales- 
burg,  133  U.  S.  156,  §§  485,  490. 
Farmers'  Loan  &  Trust  Co.  v.  New 

York,  7  Hill  (N.Y.),  261,  §  51. 
Farmers'  Loan  &  Trust  Co.  v.  Stone 

(C.  C),  20  Fed.  270,  §  231. 
Farmers'  Mut.  Ins.  Co.  v.  Moore,  48 

Neb.  870,  §  284. 
Farns worth  v.  Lime  Rock  Rd.  Co.,  83 

Me.  440,  §  215. 
Farnsworth  v.   Minnesota  &  Pacific 

Rd.  Co.,  92  U.  S.  49,  §  485. 
Farringtor.  v.   Putnam,  90  Me.  405, 

§311. 
Farrington  v.  Tennessee,  95  U.  S.  679, 

§§  334,  459,  460. 


Farwell  Farmers'  Warehouse  Assoc. 

v.  Minneapolis,  St.  Paul  &  Sault 

Ste  Marie  Ry.  Co.,  55  Minn.  8,  §  63. 

Fath  v.  Tower  Grove  &  Lafayette  Ry. 

Co.,  105  Mo.  537,  §  387. 
Fay,  Petitioner,  15  Pick.  (32  Mass.) 

243,  §§  15,  80. 
Fayette  County  v.  People's  &  D.  Bk., 

47  Ohio  St.  503,  §  234. 
Feirszleben   v.   Shallcross,   9   Houst. 

(Del.)  1,  59,  §  21. 
Feitsam  v.  Hay,  122  111.  293,  §  38. 
Feldman  v.  Charleston,  23  S.  C.  57, 

§231. 
Felix   v.    Griffiths,    56   Ohio   St.   39, 

§253. 
Fell  v.  Maryland,  42  Md.  71,  §  231. 
Ferguson  v.  Stanford,  60  Conn.  432, 

§233. 
Ferrari  v.  Escambia  County,  24  Fla. 

390,  §  265. 
Ferris  v.  Hogley,  20  Wall.  (87  U.  S.) 

375,  §  139. 
Ficklen  v.  Shelby  County,  145  U.  S.  1, 

§§  359,  419,  426. 
Fidelity  &  Casualty  Co.  of  N.  Y.  v. 

Coulter,  25  Ky.  L.  Rep.  200,  §  437. 
Fidelity  Savings  Bank  v.  State,  103 

Md.  206,  §  438. 
Fidelity  Title  &  Trust  Co.  v.  Schenley 

Park  &  Highlands  Rd.  Co.,  189  Pa. 

363,  §  25. 
Field  v.  Clark,  143  U.  S.  649,  §§  151, 

152. 
Fielders  v.  North  Jersey  St.  Ry.  Co., 

68  N.^.  L.  434,  §  337. 
Fietsam  v.  Hay,  122  111.  293,  §§  1,  3, 

11,  51,  463,  469. 
First  M.  E.  Church  v.  Atlanta,  76  Ga. 

181,  §  282. 
First  National  Bank  v.  Bell  Silver  & 

Copper   Mining   Co.,   8   Mont.   32, 

§  269. 
First   National   Bank   v.   Bridgeport 

Trust  Co.  (U.  S.  C.  C),  117  Fed. 

969,  §  67. 
First  National  Bank  v.  Gregor,  157 

Ind.  479,  §  229. 


TABLE    OF   CASES    CITED 


lix 


First    National    Bank    v.    How,    65 

Minn.  187,  §  245. 
First  National  Bank  v.  J.  C.  Trebein 

Co.,  59  Ohio  St.  316,  §  38. 
First   National   Bank  of  Chicago  v. 

Trebein  Co.,  59  Ohio  St.  316,  §  11. 
First  National  Bank  of  Covington  v. 

City  of  Covington,   129  Fed.  772, 

§460. 
First  National  Bank  of  Louisville  v. 

Louisville,  174  U.  S.  438,  §  439. 
Fischer  v.  St.  Louis,   194  U.  S.  361, 

§295. 
Fisher  v.  Horicon  Iron  &  Mfg.  Co.,  10 

Wis.  351,  §  64. 
Fisher  v.  New  Bern,  140  N.  Car.  506, 

§56. 
Fisher  v.   Steele,   39   La.   Ann.   447, 

§89. 
Fisk   v.    Jefferson    Police   Jury,    116 

U.  S.  131,  §  301. 
Fisk,  Ex  parte,  113  U.  S.  713,  §  416. 
Fitch  v.  Lewiston  Steam  Mill  Co.,  80 

Me.  34,  §  463. 
Fitts  v.  McGhee,  172  U.  S.  516,  §  416. 
Fitzgerald  v.  Grand  Trunk  R.  Co.,  63 

Vt.  169,  §  368. 
Fitzgerald  v.  Phelps  &  B.  Windmill 

Co.,  42  W.  Va.  570,  §  287. 
Flandreau   v.    Elsworth,    151    N.    Y. 

473,  §  17. 
Flanigan  v.  Sierra  County,  196  U.  S. 

553,  §  277. 
Flatley  v.  Phoenix  Ins.  Co.,  95  Wis. 

618,  §  163. 
Fleming  v.  Hull,  73  Iowa,  598,  §  03. 
Fletcher  v.  Peck,  6  Cranch  (10  U.  S.), 

87,  §§  152,  231,  206,  311. 
Flint  &  Pere  Marquette  Ry.  Co.   v. 

Ford,  41  Mich.  420,  §  it."). 
Flint  River  Steamboat  Co.  v.  Foster, 

5  Ga.  194,  §  231. 
Flora,  Town  of,  v.  American  Express 

Co.  (Miss.,  1908),  45  So.  149,  §  229. 
Florida  Cent.  &  P.  R.  Co.  v.  Ocala  St. 

&S.  R.  Co.,  39  Fla.  306,  §  379. 
Floyd  v.  National  Loan  &  Insurance 

Co.,  49  W.  Va.  327,  §  41. 


Flynn   v.   Canton  Co.,   40   Md.   312, 

§387. 
Folsom  v.  Detrick  Fertilizer  &  Chemi- 
cal Co.,  85  Md.  52,  §  11. 
Fond  du  Lac  Water  Co.  v.  Fond  du 

Lac,  82  Wis.  322,  §§  422,  434. 
Ford     v.     Chicago     Milk     Shippers' 

Assoc,  155  111.  166,  §  11. 
Ford  v.  Delta  &  Pine  Land  Co.,  164 

U.  S.  662,  §§  248,  453,  454,  455. 
Forester  v.  Kearney  National  Bank, 

49  Neb.  655,  §  269. 
Fort  St.  Union  Depot  Co.  v.  Morton, 

83  Mich.  265,  §  245. 
Fortune      v.       Buncombe      County 

Commrs.,  140  N.  Car.  322,  §  236. 
Fort  Worth  City  Co.  v.  Smith  Bridge 

Co.,  151  U.  S.  294,  §  12. 
Fort  Worth  Street  Rd.  Co.  v.  Rose- 
dale  Street  Rd.  Co.,  68  Tex.  169, 

§42. 
Foster  v.  Findlay,  5  Ohio  CO  455, 

§198. 
Foster  v.  Fowler,  60  Pa.  27,  §  118. 
Foster  v.  Fowler,  10  P.  F.  S.  27,  §  113. 
Foster  v  Rowe,  128  Wis.  326,  §§  182, 

183. 
Foster-Cherry    Commission    Co.     v. 

Coskey,  66  Kan.  600,  §  428. 
Foulk  v.  Gray  (U.  S.  C.  C),  120  Fed. 

156,  §67. 
Fowler    v.   Lewis,    36   W.   Va.    112, 

§287. 
Fowler  v.  Tuttle,  24  N.  H.  9,  §  213. 
Foxoroft    v.    Mallett,    4    How.    (45 

U.  S.)  353,  §  272. 
Francais  v.  Somps,  92  Cal.  503,  §  245. 
Frank  v.  New  York,  L.  E.  &  W.  R. 

Co.,  122  N.  Y.  197,  §  478. 
Frank  v.  St.   Faul  City  Ry.  Co.,  61 

Minn.  435,  §  111. 
Frankfort,    Lexington    &    Versailles 

Turnpike  Co.  v.  Commonwealth.  82 

Ky   386,  §  26. 
Franklin  v.  Twogood,  25  Iowa,  520, 

§  271. 
Franklin  Bank  v.  Ohio,  1  Black  (66 

F   S.),  171,  §  334. 


lx 


TABLE    OF    CASES   CITED 


Franklin   Bridge   Co.    v.    Young,    14 

Ga.  80,  §§  122,  148,  348. 
Franklin  County  v.  Nashville,  C.  & 

St.  L.  R.  Co.,  12  Lea  (Term.),  521, 

§448. 
Frederick  Elec.  Light  &  Power  Co.  v. 

Frederick  City,  84  Md.  599,  §  78. 
Fred  Macey  Co.  v.  Macey,  135  Fed. 

725,  §  53. 
Freeholders    of    Hudson    County    v. 

State,  24  N.  J.  L.  718,  §  396. 
Freeport  Water  Co.  v.  Freeport  City, 

180  U.  S.  587,  §  255. 
Freiday  v.  Sioux  City  Rapid  Transit 

Co.,  92  Iowa,  191,  §  111. 
Fremont,  Elkhorn  &  Missouri  Valley 

Rd.  Co.  v.  Pennington  County  (S. 

Dak.,  1908),  116  N.  W.  75,  §  231. 
French  v.  Cowan,  79  Me.  426,  §  265. 
French  v.  Jones,  191  Mass.  522,  §§  33, 

469. 
French  v.  State,  Harley,  141  Ind.  618, 

§218. 
French  v.  Teschemaker,  24  Cal.  518, 

§233. 
Fresno  Canal,  etc.,  Co.  v.  Park,  129 

Cal.  437,  §§  3,  9,  17. 
Froelich   v.  Toledo   &   Ohio  Central 

Ry.  Co.,  24   Ohio  Cir.  Ct.  R.   359, 

§300. 
Frost  v.  Wenie,  157  U.  S.  46,  §  283. 
Funkhauser  v.  Spahr,   102  Va.  306, 

§§  205,  216. 
Furman  v.  Nichol,  8  Wall.  (75  U.  S.) 

44,  §  282. 

G. 

Gadsden,  City  of,  v.  Mitchell,  145 
Ala.  137,  §  235. 

Gage  v.  State,  24  Ohio  Cir.  Ct.  R.  724, 
§  296. 

Gaines  v.  Marye,  94  Va.  225,  §  270. 

Galdeke  v.  Staten  Island  M.  R.  Co., 
60  N.  Y.  Supp.  598,  §  398. 

Galveston  &  Western  R.  Co.  v.  Gal- 
veston, 90  Tex.  398,  §  96. 

Galveston  &  Western  R.  Co.  v.  Gal- 
veston, 91  Tex.  17,  §  363. 


Galveston,  Harrisburg  &  San  Antonio 
Ry.  Co.  v.  Texas,  170  U.  S.  226, 
§334. 
Galveston,  Harrisburg  &  San  Antonio 
Ry.  Co.  v.  State  (Tex.  Sup.),  97 
S.  W.  71,  §§  425,  427. 
Galveston,  Harrisburg  &  San  Antonio 
Ry.  Co.  v.  State  (Tex.  Civ.  App.), 
93  S.  W.  464,  §422. 
Galveston  Railroad  v.  Cowdrey,   11 

Wall.  (78  U.  S.)  459,  §§  471,  477, 
478. 
Gamblos    v.    Philadelphia,    9    Phila. 

411,  §  79. 
Ganse  v.  Boldt,  99  N.  Y.  Supp.  442, 

100    N.    Y.    Supp.    1117,    §§   144, 

234. 
Gans'  Estate,  In  re  (Utah),  86  Pac. 

757,  §  253. 
Ganz    v.    Ohio   Postal  'Teleg.    Cable 

Co.,    140   Fed.    692,    §§   131,    194, 

379. 
Gardner  v.  Georgia  R.  &  Bkg.  Co., 

117  Ga.  522,  §  63. 
Gardner  v.   Minneapolis  St.   L.   Ry, 

Co.,  73  Minn.  517,  §  482. 
Garrick  v.  Florida,  C.  &  P.  R.  Co.,  53 

S.  Car.  448,  §  244. 
Garrison  v.  New  York,  21  Wall.  (88 

U.  S.)  196,  §  332. 
Garrison  v.  Richards  (Tex.  Civ.  App., 

190S),  107  S.  W.  861,  §  265. 
Gartner  v.  Cohen,  51   N.  J.  L.  125, 

§  265. 
Gas  &  Water  Co.  of  Downington  v. 

Corporation  of  Borough  of  Down- 
ington, 193  Pa.  255,  §  478. 
Gas  Co.  v.  City  of  New  York  (C.  C), 

157  Fed.  849,  §  392. 
Gas  Light  Co.  of  Augusta  v.  West,  78 

Ga.  318,  §  171. 
Gassies  v.  Ballou,  6  Pet.  (31  U.  S.) 

761,  §  67. 
Gause  v.  Boldt,  99  N.  Y.  Supp.  442, 

100    N.    Y.    Supp.    1117,    §§  144, 

234. 
Gebhardt   v.   St.    Louis  Transit   Co. 

(Mo.  App.),  71  S.  W.  448,  §  387 


TABLE    OF    CASES    CITED 


lxi 


Geiger  v.  Perkiomen  Reading  Turn- 
pike Road,  167  Pa.  582,  §  17. 
Gelpcke  v.  City  of  Dubuque,  1  Wall. 

(68  U.  S.)  175,  §  272. 
Genell  v.  Detroit  Gas  Co.,  112  Mich 

70,  §  464. 
General  Oil  Co.  v.  Crane,  209  U.  S. 

211,  §  404. 
Geneva,  City  of,  v.  Geneva  Teleph. 

Co.,  62  N.  Y.  Supp.  172,  §  298. 
Georgia  v.  Madrazo,  1  Pet.  (26  U.  S.) 

110,  §  416. 
Georgia,   Macon   &    Western   Rd.   v. 

Davis,  13  Ga.  68,  §  23. 
Georgia  Railroad  &  Banking  Co.  v. 

Smith,   128  U.  S.   174,   §§63,  99, 

250,  311,  391,  412,  455. 
Georgia  Railroad  &  Banking  Co.  v. 

Wright,  124  Ga.  596,  §§  285,  440. 
Georgia  Railroad  &  Banking  Co.  v. 

Wright,     125     Ga.     589,     §§  300, 

421. 
German   Savings   Bank   v.   Franklin 

County,  128  U.  S.  526,  §  259. 
Germania  Savings  Bank  v.  Darling- 
ton, 50  S.  Car.  337,  §  343. 
Germer  v.  Triple  State  Natural  ( las  & 

Oil  Co.    (W.  Va.),   54  S.  E.   509, 

§  465. 
Ghee  v.  Northern  Union  Gas  Co.,  158 

N.Y.  510,  §§  36,48,379. 
Ghee  v.  Northern  Union  Gas  Co.,  56 

N.  Y.  Supp  450.  §  185. 
Gibbins  v.   Brittenum,   56  Mo.   251, 

§  265. 
Gibbons    v.    Ogden,    9    Wheat.    (22 

U.  S.)  1,  §§  149,  152,  208,  209.  290. 

366,  369,  37:;. 
Gibbs    v.    Consolidated    Gas    Co.    of 

Baltimore,    130  U.   S.   396.   §§  63, 

321,  464. 
Gibbs  v.  Drew,  16  Fla.  147,  §  26. 
Gibson  v.  United  States,    191    Q.  S. 

182,  §§  282,  283. 
Gilford   v.   Livingston,   2   Denio   (N. 

Y),  380,  §  51. 
Gilbert  v.  Morgan,  Ms  III.  A.pp.  281, 

§236. 


Gilbert  Elev.   R.  Co.,  Matter  of,  70 

N.Y.  361,  §  183. 
Gillespie  v.  Fort  Wayne  &  S.  R.  Co., 

17  Ind.  443,  §  349. 
Oilman  v.  Philadelphia,  3  Wall.  (70 

U.  S.)  713,  §§  15,  145,  152,  367. 
Oilman  v.   Sheboygan,   2   Black   (67 

U.  S.),  510,  §§  412,  421,  455. 
Gilmore  v.  Hannibal  &  St.  J.  R.  Co., 

67  Mo.  323. 
Girard  Point  Storage  Co.  v.  South- 

wark  Foundry  Co.,    105   Pa.   248, 

§  H3. 
Given  v.  Wright,  117  U.  S.  648,  §  20. 
Gladson  v.  Minnesota,  166  U.  S.  427, 

§§  366,  375,  384. 
Glavin  v.  Rhode  Island  Hospital,  12 

R.  I.  411,  §  62. 
Glass  v.  Cedar  Rapids,  68  Iowa,  207, 

§  263. 
Gleason  v.   McKay,    134   Mass.  419, 

§§  21,  52. 
Glidewell  v.  Hite,  5  How.  (Miss.)  110, 

§225. 
Globe  Elevator  Co.  v.  Andrew  (C.  C), 

144  Fed.  871,  §§  161,  391,  401. 
Gloucester  Ferry  Co.  v.  Pennsylvania, 

114  U.  S. 196,  §§  367,  396,  404,  420. 
Glymont  Improv.  &  Excursion  Co.  v. 

Toller,  80  Md.  278,  §  350. 
Gniadck  v.  Northwestern  &  B.  Co.,  73 

Minn.  87,  §  90. 
Goddard  v.  Grand  Trunk  Ry.  Co.,  57 

Me.  202,  §  51. 
Golden  Star  Fraternity  v.  Martin,  59 

N.J.  L.  207,  §  245. 
Goldey  v.  Morning  News,  156  U.  S. 

518,  §  355. 
Goldsmith  v.  Augusta  &  S.  It.  Co.,  62 

Ga.  468,  §  311. 
Goldsmith  v.  Rome  Rd.  Co.,  62  Ga. 

173,  §  51. 
Gomblos    v.    Philadelphia,    9    Phila. 

411,   §  79. 
Goode    v.    State    (Fla.),    39   So.    461, 

§  236. 
Goodletl   v.  Louisville  Rd.,  122  U,  S. 

391,  §  244. 


lxii 


TABLE    OF    CASES    CITED 


Goodwin  v.  Colorado  Mortgage  Co., 

110  U.  S.  1,  §  353. 
Gordon  v.  Appeal  Tax  Court,  3  How. 

(44  U.S.)  133,  §§8,  12,  IS,  26,  34, 

438. 
Gougar  v.  Timberlake,   148  Ind.  38, 

§21. 
Gould  v.  Edison  Electric  Ilium.  Co., 

29  Miss.  242,  §  390. 

Governor  to  use  of  Trustees  v.  Grid- 
ley,  1  Walk.  (1  Miss.)  328,  §  115. 

Govin  v.  City  of  Chicago,  132  Fed. 
848,  §§  306,  330. 

Graham  v.  Chicago,  I.  &  L.  Ry.  Co. 
(Ind.  App.),  77  N.  E.  57,  §  464. 

Graham  v.  Dunn,  3  Pick.  (87  Tenn.) 
458,  §  265. 

Graham  v.  Folsom,  200  U.  S.  248, 
§  310. 

Graham  v.  People,  104  111.  321, 
§21. 

Grand  Island  &  Northern  Wyoming 
Rd.  Co.  v.  Baker,  6  Wyo.  369, 
§204. 

Grand  Island  &  W.  C.  R.  Co.  v. 
Swinbank,  51  Neb.  521,  §  282. 

Grand  Lodge  F.  &  A.  M.  v.  New  Or- 
leans, 166  U.  S.  143,  §  460. 

Grand  Rapids  &  Ind.  Ry.  Co.  v. 
Osborn,  193  U.  S.  17,  §§  329,  412, 
464,  479. 

Grand  Rapids  Booming  Co.  v.  Jarvis, 

30  Mich.  308,  §  233. 

Grand  Rapids  Bridge  Co.  v.  Prange, 
35  Mich.  400,  §§  8,  11,  17,  30,  44. 

Grand  Trunk  Railroad  v.  Richard- 
son, 91  U.  S.  454,  §  464. 

Granger  Cases.  See  Chicago,  Burl- 
ington &  Quincy  Rd.  Co.  v.  Iowa; 
Munn  v.  Illinois;  Peik  v.  Chicago  & 
Northwestern  Ry.  Co. 

Granger  Cases,  94  U.  S.  113,  §  400. 

Grannan  v.  Westchester  Racing 
Assoc,  153  N.  Y.  449,  §  96. 

Grant  v.  Hewry  Clay  Coal  Co.,  80  Pa. 
208,  §  271. 

Gray  v.  Chicago,  10  Wall.  (77  U.  S.) 
454,  §  152. 


Gray  v.  Cumberland  County  Commrs., 

83  Me.  429,  §§  236,  239,  264,  265. 
Gray  v.  St.  Paul  City  Ry.  Co.,  87 

Minn.  280,  §  387. 
Great  Southern  Fire  Proof  Hotel  Co. 

v.  Jones,  177  U.  S.  449,  §  50. 
Green     v.     Chicago,     Burlington     & 

Quincy  Ry.   Co.,   205  U.  S.   530, 

§  353. 
Green    v.    Doerwald,    69    Neb.   698, 

§  229. 
Green  v.  Elbert,  63  Fed.  309,  §  294. 
Green   v.    Ivey    (Fla.),    33   So.    711, 

§194. 
Green  v.  Knife  Falls  Boom  Corp.,  35 

Minn.  155,  §§  2,  11. 
Green  v.  Robinson,   5  How.   (Miss.) 

80,  §  225. 
Green  v.  Weller,  32  Miss.  652,  §  205. 
Green  County  v.  Conness,  109  U.  S. 

104,  §  4S1. 
Greenwich   Ins.   Co.   v.   Carroll,    125 

Fed.  121,  §  300. 
Greenwood  v.  Freight  Co.,  105  U.  S. 

13,  §§  317,  318,  320,  331. 
Gregory  v.  Trustees  of  Shelby  College, 

2  Mete.  (59  Ky.)  589,  §§  47,  306. 
Gregg  v.  Sanford,  65  Fed.  151,  §  52. 
Grenada  County  Supervisors  v.  Brog- 

den,  112  U.   S.    261,   §§  233,   236, 

288. 
Griffin  v.  Rhoton  (Ark.),  107  S.  W. 

380,  §  217. 
Griggs  v.  State  (Ga.  App.,  1908),  60 

S.  E.  364,  §  231. 
Grimes  v.  Eddy,  126  Mo.  168,  §§  234, 

262,  265,  372. 
Grinage  v.  Times  Democrat  Pub.  Co., 

107  La.  121,  §  231. 
Griswold    v.    Hepburn,    2    Div.    (63 

Ky.)  20,  §  289. 
Grossman  v.  Consolidated  Gas  Co.  of 

N.  Y.,  100  N.  Y.  Supp.  100,  §§  298, 

392. 
Groves    v.    Slaughter,    15    Pet.    (40 

U.  S.)  449,  §§  205,  225. 
Guggenheim  Smelting  Co.,  In  re,  121 

Fed.  153,  §  268. 


TABLE    OF    CASES    CITED 


lxiii 


Guinn    v.    Eaves,     117    Tenn.    524, 

§§  178,  184,  186. 
Guinn  v.  Ohio  River  R.  Co.  (W.  Va.), 

33  S.  E.  87,  §  464. 
Gulf  &  S.  I.  R.  Co.  v.  Adams,   90 

Miss.  559,  §  421. 
Gulf  &  S.  I.  R.  Co.  v.  Hewes,  183 

U.  S   66,  §§  278,  412,  460,  479. 
Gulf,  Colorado  &  Santa  Fe  Ry.  Co.  v. 

Dyer  (Tex.  Civ.  App.),  95  S.  W.  12, 

§  386. 
Gulf,  Colorado  &  Santa  Fe  Ry.  Co.  v. 

Ellis,  165  U.  S.  150,  §§  66,  294,  298, 

299. 
Gulf,  Colorado  &  Santa  Fe  Ry.  Co.  v. 

Hefley,  158  U.  S.  98,  §  283. 
Gulf,  Colorado  &  Santa  Fe  Ry.  Co.  v. 

Lone  Star  Salt  Co.,  26  Tex.  Civ 

App.  531,  §  63. 
Gulf,  Colorado  &  Santa  Fe  Ry.  Co.  v. 

Morris,  67  Tex.  692,  §  42. 
Gull   River   Lumber   Co.    v.    Lee,    7 

X.  Dak.  135,  §  282. 
Gunter  v.  State,  83  Ala.  96,  §  270. 
Gunter,  Attorney  General,  v.  Atlan- 
tic, etc.,  Ry.  Co.,  200  U.  S.  273, 

§416. 
Gurney   v.   Minneapolis   Union   Ele- 
vator Co.,  63  Minn.  70,  §  472. 
Guthrie  v.  Harkness,  199  U.  S.  148, 

§  389. 
Gutierres   v.    Albuquerque    Land    & 

Irrigation  Co.,  188  U.  S.  545,  §  130. 
Gwathmay  v.  Clisby  (C.  C),  31  Fed. 

220,  §  248. 
Gwen  v.  Wright,  117  U.  S.  648,  §  488. 

II.    - 
Hackett  v.  Wilson,  12  Ore.  25,  §§  17, 

24,  80. 
Hadden    v.    Collector,    5    Wall.    (72 

U.S.)  107,  §§211,  263. 
Hagan  v.  Fayette  Gas  Fuel  Co.,  21 

Pa.  Co.  Ct.  R.  503,  §§  63,  80. 
Bagemann  v.  Southern  Electric  Co. 

(Mo.),  100  S.  W    1081,  §  464. 
Eager  v.  Kentucky  Title  Co.,  27  Ky. 

L.  Rep.  346,  §  220. 


Hager  v.  Louisville  Title  Co.,  27  Ky. 

L.  Rep.  345,  §  423. 
Hager,  etc.,  v.  American  Surety  Co., 

28  Ky.  L   Rep.  782,  §  447. 
Haggerty  v.   Wagner,   148  Ind.  625, 

§  238. 
Hagood   v.  Southern,   117   U.  S.  52, 

§■416. 
Hale  v.  Henkel,  201  U.  S   43,  §§  50, 

125. 
Hall  v.  American  Refrigerator  Tran- 
sit Co.,  24  Colo.  291,  §  440. 
Hall  v.  De  Cuir,  95  U.  S.  485,  §  391. 
Hall,  In  re,  38  Kan.  670,  §  265. 
Halpin  v.   Prosperity  Loan  &  Bldg. 

Assoc,  108  III.  App.  316,  §  287. 
Hamilton   v.  Hannibal  &  St.  Joseph 

Rd.  Co,  39  Kan.  56,  §  271. 
Hamilton  v.  Keith,  5  Bush  (88  Ky.), 

458,  §  311. 
Hamilton  v.  Rathbone,  175  U.  S.  414, 

§§  262,  26S,  270. 
Hamilton  v.  Vicksburg,  Shreveport  & 

Pac.  Rd  ,  119  U.S.  281,  §  127. 
Hamilton    &    Dayton    Ry.    Co.    v. 

Bowling  Green,   57   Ohio  St.   336, 

§390. 
Hamilton  &  L.  E.  T.  Co.  v.  Hamilton, 

1    Ohio    X.    P.  366,    §§  241,    255, 

257. 
Hamilton    Co.    v.    Massachusetts,    6 

Wall.  (73  U.  S.)  632,  §  425. 
Hamilton  Gas  Light  Co.  v.  Hamilton 

City,    146    U.  S.  258,   §§  23,   254, 

255,  305,  313,  318. 
Hamilton  Mfg.  Co.  v.  Massachusetts, 

(i  Wall.  (73  V.  S.)  632,  §  91. 
Hamilton    National    Bank  v.   Ameri- 
can Loan  &  Trust  Co,  66  Xeb.  67, 

§  206. 
Hamilton,     The,     207     U.    S.     398, 

§  137. 
Hammock  v.  Loan  &  Trust  Co,  105 

1'.  S.  77,  §  248. 
Hammond  Beef  &  P.  Co.  v.  Best,  91 

Me.  131,  §  66. 
Hampe  v.    Pittsburg  &  B.  Traction 

I  o     165  Pa    168,  §  465. 


lxiv 


TABLE    OF    CASES    CITED 


Hamtranck,  Township  of,  v.  Rapid 

Ry.   Co.    (Mich.),   81    N.   W.   337, 

§348. 
Hancock  v.  Louisville  &  N.  R.  Co., 

145  U.  S.  409,  §  465. 
Hancock,  Comptroller,  v.  Singer  Mfg. 

Co.,  62  N.  J.  L.  289,  §§  12,  412,  461. 
Hanford  v.  Davies,   163  U.  S.   273, 

§§  305,  306. 
Hanley  v.  Kansas  City  Southern  Ry. 

Co.,  187  U.  S.  617,  §  404. 
Hanna    v.    International    Petroleum 

Co.,  23  Ohio  St.  622,  §  235. 
Hannah  v.  Metropolitan  St.  Ry.  Co., 

81  Mo.  App.  78,  §  111. 
Hannibal  &  St.  J.  R.  Co.  v.  Husen 

(see  Railroad  Company  v.  Husen), 

95  U.  S.  465,  §  372. 
Hannibal   &   St.    Joseph   R.    Co.    v. 

Missouri  Packet  Co.,  125  U.  S.  260, 

§§  23,  127,  254. 
Hannon  v.  St.  Louis  Co.,  62  Mo.  313, 

§62. 
Hans  v.  Louisiana,  134  TJ.  S.  1,  §  416. 
Hansen  v.  Hammer,   15  Wash.  315, 

§89. 
Hanson  v.  Wm.  A.  Hunter  Electric 

Light  Co.  (Iowa),  48  N.  W.  1005, 

§§  247,  347. 
Harkrader  v.  Wadley,  172  U.  S.  148, 

§416. 
Harless  v.  United  States,  88  Fed.  97, 

§  233. 
Harmon  v.  City  of  Chicago,  110  111. 

400,  §  366. 
Harrington  v.  Gilchrist,  121  Wis.  127, 

§486. 
Harrington  v.  United  States,  11  Wall. 

(78  U.  S.)  356,  §  265. 
Harris   v.    Kill,    108   111.    App.    305, 

§  227. 
Harris    Lumber    Co.    v.    Grandstaff 

(Ark.),  95  S.  W.  772,  §  440. 
Harrison  v.  Commonwealth,  83  Ky. 

162,  §§  261,  262. 
Harrison  v.  National  Bank,  108  111. 

App.  493,  §  264. 
Harrison  v.  State,  22  Md.  468,  §  231. 


Hart  v.  Mayor,  etc.,  of  New  York,  44 

N.  Y.  Supp.  767,  §  193. 
Hart  v.  Smith,  159  Ind.  182,  §  229. 
Hartford  v.  Hartford  St.  Ry.  Co.,  75 

Conn.  471,  §  337. 
Hartford  &  C.  W.  R.  Co.  v.  Wagner, 

73  Conn.  506,  §  349. 
Hartford  Bridge  Co.  v.  Union  Ferry 

Co.,  29  Conn.  210,  §§  231,  311. 
Hartford  Fire  Ins.  Co.  v.  Chicago,  M. 

&  St.  P.  Ry.  Co.,   175  U  S.  91, 

§§  272,  464. 
Hartford  Fire  Ins.   Co.   v.  Commis- 
sioner of  Insurance,  70  Mich.  485, 

§247. 
Hartford  Fire  Ins.  Co.  v.  Hartford,  3 

Conn.  15,  §  51. 
Harvey  v.  Tyler,  2  Wall.  (69  U.  S.) 

328,  §  287. 
Hastings  v.  Ames,  68  Fed.  726,  §  416. 
Hatch  v.  Reardon,  204  U.  S.   152, 

§399. 
Hatfield  v.  Strauss,  189  N.  Y.  208, 

§§  14,  26,  47,  424. 
Hattersley  v.  Village  of  Waterville, 

26  Ohio  Cir.  Ct.  R.  226,  §§  349,  398. 
Havemeyer  v.  Iowa  County,  3  Wall. 

(70  U.  S.)  294,  §  306. 
Hawaii  v.  Mankichi,  190  U.  S.  197, 

§239. 
Hawkins    v.    Filkins,    24    Ark.    286, 

§§  205,  289. 
Hawkins  v.  Louisville  &  N.  R.  Co., 

145  Ala.  385,  §  236. 
Haworth,     Comptroller,     v.     Singer 

Mfg.  Co.,  62  N.  J.  L.  289,  §  459. 
Hawthorne  v.   People,   109  111.  302, 

§§  231,  289. 
Hay  v.  City  of  Baraboo,  127  Wis.  1, 

§  282. 
Hay  v.  Springfield  Water  Co.,   207 

Pa.  38,  §  465. 
Hayes  v.  Michigan  Cent.  R.  Co.,  Ill 

U.  S.  228,  §§  343,. 381,  382. 
Hayes  v.  Walker,  54  Fla.  63,  §  421. 
Hazelton    Boiler    Co.    v.     Hazelton 

Tripod    Boiler   Co.,    137    111.    231, 

§§  3,  9,  11,  21. 


TABLE    OF   CASES    CITED 


lxv 


Head   &  Amory  v.   Providence  Ins. 

Co.,  2  Cranch  (U.  S.),  127,  §  18. 
Healy    Lumber    Co.    v.    Morris,    33 

Wash.  490,  §§  63,  90. 
Heath  &  Milligan  Mfg.  Co.  v.  Worst, 

207  U.  S.  338,  §§  261,  365. 
Heath  v.   Silverthorn  Lead   Min.   & 

Smelting  Co.,  39  Wis.  146,  §  350. 
Heath  v.   Wallace,    138   U.   S.    573, 

§  262. 
Hedges  v.  Dixon  County,  150  U.  S. 

182,  §  343. 
Heeney  v.   Sprague,    11    R.    I.   456, 

§387. 
Heerwagen  v.  Crosstown  St.  Ry.  Co., 

86  N.  Y.  Supp.  218,  §§  440,  451. 
Heff,  Matter  of,  197  U.  S.  488,  §  149. 
Heigel  v.  Wichita  County,  84  Tex. 

392,  §  56. 
Heilman  v.  Lebanon  &  Annville  St. 

Ry.  Co.,  180  Pa.  627,  §  111. 
Heine   v.    Levee   Commissioners,    19 

Wall.  (86  U.  S.)  655,  §  417. 
Helena,    City   of,    v.    Helena   Water 

Works  Co.,  122  Fed.  1,  §§  23,  254. 
Helena  Power  Transmission  Co.   v. 

Spratt,  35  Mont.  108,  §  76. 
Heilman  v.  Shoulters,  114  Cal.  136, 

§  282. 
Helton,  Ex  parte,  117  Mo.  App.  609, 

§  262. 
Henderson  v.  Central  Passenger  Ry. 

Co.,  21  Fed.  358,  §  481. 
Henderson  v.  Durham  Traction  Co., 

132  N.  Car.  779,  §  387. 
Henderson  v.  New  York,  92  U.  S.  259, 

§§  237,  238. 
Henderson  Bridge  Co.   v.   Common- 
wealth, 99  Ky.  623,  §§  425,  446. 
Henderson  Bridge  Co.  v.  Henderson, 

141  U.  S.  679,  §  459. 
Henderson  Bridge  Co.  v.  Henderson 

City,  173  U.  S.  592,  §§  426,  430. 
Henderson  Bridge  Co.  v.  Kentucky, 

166  U.  S.  150,  §§  420,  430,  447. 
Henderson    Bridge    Co.    v.    Negley, 

Sheriff,  23  Ky.  L.  Rep.  746,  §§  423, 
,  425,  446. 


Hendricks   v.    State,    79    Miss.    368, 

§229. 
Henley  v.  State,  98  Tenn.  665,  §  282. 
Hennington  v.  Georgia,  163  U.  S.  299, 

§§  366,  369,  384. 
Henrietta    Mining   &   Milling  Co.   v. 

Gardner,  173  U.  S.  123,  §  269. 
Henshaw,  Ex  parte,  73  Cal.  486,  §§  1, 

21. 
Hepburn   v.    Griswold,    8   Wall.    (75 

U.  S.)  603,  §  126. 
Hern  v.  Iowa  Agricultural  Soc,  91 

Iowa,  97,  §  68. 
Heron  v.  St.  Paul,  M.  &  M.  R.  Co.,  68 

Minn.  542,  §  464. 
Herring  v.  State,  114  Ga.  96,  §  229. 
Hesing  v.  Attorney  General,  104  111. 

292,  §  9. 
Hewett  v.  Western  Cmion  Telegraph 

Co.,  4  Mackey  (D.  C),  424,  §  131. 
Hewitt   v.   Schultz,    180   U.   S.   139, 

§  129. 
Heyman,  Ex  parte  (Tex.  Civ.  App.), 

78  S.  W.  349,  §  204. 
Hibbs  v.  Brown,  98  N.  Y.  Supp.  353, 

§52. 
Hickman   v.  State   (N.   J.),   44   Atl. 

1099,  §  245. 
Higgins     v.     Downward,     8    Houst. 

(Del.)  227,  §  517. 
Higgins  v.  Manhattan  Elect.  L.  Co.,  3 

Am.  Elec.  Cas.,  note  167,  §  19. 
Hightower  v.  Thornton,  8  Ga.  486, 

§51. 
Hilburn  v.  St.   Paul,  M.  &  M.  Ry. 

Co.,  23  Mont.  229,  §  249. 
Hill  v.  Atlantic  &  North  Carolina  Rd. 

Co.,  143  X.  Car.  539,  §467. 
Hill  v.  Rome  St.  R.  Co.,  99  Ga.  103, 

§  387. 
Hill  v.  Tarver,  130  Ala.  592,  §  229. 
Hilliker  v.  Citizens'  St.  Ry.  Co.,  152 

Ind.  86,  §  270. 
Hills  v.  City  of  Chicago,  60  111.  86, 

§  205. 
Hilton  v.  Guyot,  159  U.S.  113,  $  272. 
Hindman    v.    Boyd,    42    Wash.    17, 

§§  189,  314. 


lxvi 


TABLE    OF   CASES    CITED 


Hines  v.  Wilmington  &  Weldon  Ry. 

Co.,  95  N.  Car.  434,  §  63. 
Hing  v.  Crowley,  113  U.  S.  703,  §  136. 
Hinnershitz  v.  United  Traction  Co., 

206  Pa.  91,  §  111. 
Hirshfield  v.  Bopp,   145  N.  Y.  84, 

§144. 
Hobart  v.  Butte  County,  17  Cal.  23, 

§  289. 
Hoboken  v.  Pennsylvania  R.  Co.,  124 

U.  S.  656,  §  247. 
Hoff  v.  Jasper  County,  110  U.  S.  53, 

§343. 
Hoge  v.  Railroad  Co.,  99  U.  S.  348, 

§§  412,  455,  458,  484. 
Holden   v.    Hardy,    169   U.   S.    366, 

§§  294,  298. 
Holland  v.  Lynn  &  Boston  Rd.  Co., 

144  Mass.  425,  §  111. 
Holmes    v.    Jennison,    14    Pet.    (39 

U.  S.)  540,  §  205. 
Holton  v.  State,  28  Fla.  303,  §  231. 
Holyoke  Co.  v.  Lyman,  15  Wall.  (82 

U.  S.)  500,  §§  319,  331. 
Holy     Trinity     Church     v.     United 

States,  143  U.  S.  451,  §  245. 
Home    Building    &    Loan   Assoc,    v. 

Nolan,  21  Mont.  205,  §  261. 
Home  Fire  Ins.  Co.   v.   Barber,   67 

Neb.  644,  §  11. 
Home  Ins.  Co.  v.  Augusta,  93  U.  S. 

116,  §  357. 
Home   Ins.   Co.   v.   New  York,    134 

U.  S.  594,  §§  5,  8,  12,  26,  27,  30,  34, 

39,  423,  424,  425,  426,  441,  446. 
Home  of  the  Friendless   v.  Rouse,  8 

Wall.  (75  U.  S.)  430,  §§  334,  458, 

460. 
Home  Savings  Bank  v.  Des  Moines, 

205  U.  S.  503,  §§  417,  443,  447. 
Home  Teleph.   Co.   v.   City  of  New 

Brunswick,  62  N.  J.  L.  172,  §  176. 
Home  Teleph.  &  Teleg.  Co.  v.  City  of 

Los  Angeles,  155  Fed.  554,  §§  390, 

391. 
Honduras  Commercial  Co.  v.  State 

Bd.  of  Assessors  (N.  J.  Sup.),  23 

Atl.  668,  §  356. 


Hooker  v.  New  Haven  &  Northamp- 
ton Co.,  15  Conn.  313,  §  72. 
Hooper  v.  California,  155  U.  S.  648, 

§§  87,  299,  354,  359. 
Hooper    v.    Creager,    84    Md.    358, 

§§  239,  270. 
Hope   v.   Valley   City  Salt   Co.,    25 

W.  Va.  789,  §  51. 
Hope  Insurance  Co.  v.  Boardman,  5 

Cranch  (9  U.  S.),  57,  §  291. 
Hopkins  v.  United  States,  171  U.  S. 

578,  §§  354,  359. 
Hopple  v.  Brown  Township,  13  Ohio 

St.  311,  §  51. 
Horbach  v.  Tyrell,  48  Neb.  514,  §  51. 
Horn  v.  People,  26  Mich.  221,  §  119. 
Horn  &  Brannan  Mfg.  Co.  v.  Steel- 
man,  215  Pa.  187,  §  287. 
Horn  Silver  Mining  Co.  v.  New  York, 

143  U.  S.  305,  §§  5,  27,  34,  42,  352, 

426. 
Horst,  Mayor,  etc.,  v.  Moses,  48  Ala. 

146,  §§  1,  4,  26,  134,  311. 
Hotel  Registry  Realty  Corp.  v.  Staf- 
ford, 70  N.  J.  L.  528,  §§  282,  283. 
Houghton  v.   Payne,   194  U.  S.  88, 

§  262. 
House  Bill,  In  re,  15  Colo.  593,  §  234. 
Houston  v.  Bogle,  32  N.  Car.  496, 

§311. 
Houston  v.  Houston,  B.  &  M.  P.  R. 

Co.,  84  Tex.  581,  §§  486,  490. 
Houston   v.   Houston  City  St.   Rd. 

Co.,  83  Tex.  548,  §§  314,  345. 
Houston    v.    Moore,    5    Wheat.    (18 

U.  S.)  49,  §  120. 
Houston  &  Texas  Central  R.  Co.  v. 

Mayes,    201    U.    S.    321,    §§  366, 

370. 
Houston  &  Texas  Central  Ry.  Co.  v. 

Rust,  58  Tex.  98,  §  63. 
Houston  &  Texas  Central  Ry.  Co.  v. 

Texas,  170  U.  S.  243,  §  334. 
Houston  &  Texas  Central  Ry.  Co.  v. 

Texas  &  Pac.  Ry.  Co.,  70  Tex.  649, 

§§  311,  313. 
Hovey  v.  State,  119  Ind.  395,  §§  233, 

289. 


TABLE    OF    CASES    CITED 


lxvii 


Howard  v.  Illinois  Central  Rd.  Co., 

207  U.  S.  463,  §§  231,  234,  235,  249, 

369,  370,  375,  384. 
Howard  v.  Perrin,  200  U.  S.  1,  §  129. 
Howard  v.  St.  Clair  &  Monroe  Levy 

&  Drainage  Co.,  51  111.  130,  §  75. 
Howell  v.  State,  71  Ga.  224,  §§  216, 

231. 
Hubbard  v.  Brush,  61  Ohio  St.  252, 

§425. 
Huber  v.  Merkel,  117  Wis.  355,  §  366. 
Huber  v.  Reily,  53  Pa.  112,  §  21. 
Huddleston  v.  Francis,  124  111.  195, 

§250. 
Hudson     River    Telephone     Co.     v. 

Watervliet  Turnpike  &  Rd.  Co.,  56 

Hun  (N.  Y.),  67,  §  36. 
Hudspeth  v.  Hall,  111  Ga.  510,  §§  15, 

24,  195. 
Hughes    v.    Board    of    Commrs.    of 

Caddo  Levee  Dist.,   108   La.   146, 

§89. 
Hughes  v.  Murdock,  45  La.  Ann.  935, 

§  289. 
Hukill  v.  Maysville  &  B.  S.  R.  Co.,  72 

Fed.  745,  §  464. 
Hull   Electric   Light  Co.   v.   Ottawa 

Elect.  Light  Co.,  Rap.  Jud.  Que- 
bec, 14  C.  S.  124,  §  75. 
Humbird  v.  Avery,   195  U.  S.  480, 

§  129. 
Humphrey  v.   Pegues,   16  Wall.   (83 

U.  S.)  244,  §  479. 
Hunt  v.  Burns,  95  N.  W.  1110,  §  252. 
Hunt   v.  Chicago  Horse  &  Dummy 

Co.,  21  111.  038,  §§  265,  282,  283. 
Hunt  v.  Lake  Shore  &  M.  S.  R.  Co., 

112  Ind.  69,  §§236,  238. 
Hunter  v.  City  of  Pittsburg,  207  U.S. 

161,  §§  136,  310. 
Hunter  v.  Moore,  44  Ark.  184,  §  15. 
Huntington   v.   Worthen,   120  U.  S. 

97,  §  235. 
Huntress,  The,  Fed.   Cas.    No.   6,91  I. 

§  212. 
Huse  v.  Clover,  lid  C.  S   543,  §  17. 
Ilussey  v.  Moser,  70  Tex.  12,  §  271). 
Hutchinson  v.  Self,  15:',  III.  542,  §  215. 


Hyatt  v.  Allen,  54  Cal.  353,  §  226. 

Hyde  v.  City  of  Boston,  186  Mass. 
115,  §  337. 

Hyde  v.  Planters'  Bank,  8  Rob.  (La.) 
416,  §  231. 

Hyde's  Ferry  Turnpike  Co.  v.  David- 
son County,  91  Tenn.  291,  §  116. 

I. 

Idlewild,  The,  64  Fed.  603,  §  17. 
Illinois  Central  R.  Co.  v.  Chicago,  B. 

&  N.  R.  Co.,  122  111.  473,  §  236. 
Illinois  Central  R.  Co.  v.  Common- 
wealth (Ivy.),  52  S.  W.  818,  §  383. 
Illinois    Central    R.    Co.    v.    Copiah 

County,  81  Miss.  685,  §§  97,  98. 
Illinois  Central  R.  Co.  v.  Decatur,  147 

U.  S.  190,  §  454. 
Illinois  Central  R.  Co.  v.  Ihlenberg, 

75  Fed.  873,  §  225. 
Illinois  Central  R.  Co.  v.  Illinois,  173 

U.  S.  142,  §  375. 
Illinois  Central  R.  Co.  v.  Illinois,  108 

U.  S.  541,  §§  167,  381. 
Illinois  Central  R.  Co.  v.  McLean,  17 

111.  291,  §  456. 
Illinois  Central  R.  Co.  v.  Wathen,  17 

111.  App.  582,  §  472. 
Illinois  Central  R.  Co.  v.  Willenborg, 

117  111.  203,  §  97. 
Illinois    Trust    &    Savings    Bank   v. 

Doud,  105  Fed.  123,  §  4S8. 
Imperial  Refining  Co.  v.  Wyman,  38 

Fed.  574,  §  52. 
Independent  Teleg.  &  Teleph.  Co.  v. 

Town  of  Towanda,   221    111.   299, 

§  379. 
Indiana  Natural  &  Illuminating  Gas 

Co.  v.  State,  158  Ind.  516,  §  83. 
Indianapolis    v.    Huegele,    115    Ind. 

581,  §§  238,  239. 
Indianapolis  v.  Navin,  151  Ind.  139, 

§§  21  s,  398,  -112. 
[ndianapolis  &  V.  R.  Co.  v.  Backus, 

133  Ind.  609,  §  356. 
[ndianapolis,  City  of,  v.  Consumers' 

Gas  Trust  Co.,  144  Fed.  640,  §§  82, 

347,  463. 


lxviii 


TABLE    OF   CASES    CITED 


Ingersoll  v.  Nassau  Elec.  R.  Co.,  17 

N.  Y.  453,  §  183. 
Ingraham    v.    Speed,    30   Miss.    410, 

§  239. 
Inhabitants  of  East  Orange  v.  Subur- 
ban Elec.  L.  &  P.  Co.,  59  N.  J.  Eq. 

563,  §  33. 
Inhabitants  of  Farmingdale  v.  Berlin 

Mills  Co.,  93  Me.  333,  §  440. 
Inhabitants  of  Township  of  Summit 

v.  New  York  &  New  Jersey  Teleph. 

Co.,  57  N.  J.  Eq.  123,  §  140. 
Inkster    v.    Carver,    16    Mich.    484, 

§231. 
In  re.    See  name  of  party. 
Insurance  Co.  v.  Morse,  20  Wall.  (87 

U.  S.)  445,  §  355. 
Interborough   Rapid  Transit  Co.   v. 

Gallagher,    90    N.    Y.    Supp.    104, 

§345. 
International  &  G.  N.  R.  Co.  v.  Eck- 

ford,  71  Tex.  274,  §  464. 
International    &    G.    N.    R.    Co.    v. 

Kuehn,  70  Tex.  582,  §  464. 
International    Boom    Co.    v.    Rainy 

Lake  River  Boom  Corp.,  97  Minn. 

513,  §§  42,  90. 
International  Life  Ins.  Co.  v.  Commr. 

of  Taxes,  28   Barb.    (N.   Y.)    318, 

§65. 
International  Trust  Co.  v.  American 

Loan  &  Trust  Co.,  62  Minn.  501, 

§53. 
Interstate  Commerce  Commission  v. 

Alabama    Midland    Ry.    Co.,    168 

U.  S.  144,  §§  153,  403,  413,  415. 
Interstate  Commerce  Commission  v. 

Baird,  194  U.  S.  25,  §  250. 
Interstate  Commerce  Commission  v. 

Baltimore    &    O.    R.    R.    Co.,    145 

U.  S.  263,  §§  153,  415. 
Interstate  Commerce  Commission  v. 

Baltimore,  43  Fed.  37,  §  413,  415. 
Interstate  Commerce  Commission  v. 

Brimson,  154  U.  S.  447,  §  177. 
Interstate  Commerce  Commission  v. 

Chicago   Great  Western  Ry.   Co., 

209  U.  S.  108,  §§  403,  415. 


Interstate  Commerce  Commission  v. 
Chicago  Great  Western  Ry.  Co., 
141  Fed.  1003,  §§  74,  153,  403,  413. 

Interstate  Commerce  Commission  v. 
Cincinnati,  N.  O.  &  T.  P.  Ry.  Co., 
167  U.  S.  479,  §§  153,  391,  403. 

Interstate  Commerce  Commission  v. 
Detroit,  Grand  Haven  &  Milwau- 
kee Rd.  Co.,  167  U.  S.  633,  §  413. 

Interstate  Commerce  Commission  v. 
Lake  Shore  &  Michigan  Southern 
Ry.  Co.,  134  Fed.  942,  §  177. 

Interstate  Commerce  Commission  v. 
Louisville  &  N.  R.  Co.,  190  U.  S. 
273,  §§413,414,415. 

Interstate  Commerce  Commission  v. 
Louisville  &  N.  R.  Co.,  73  Fed.  409, 
§403. 

Interstate  Commerce  Commission  v. 
Reichmann,  145  Fed.  235,  §  402. 

Interstate  Commerce  Commission  v. 
Southern  Pacific  Ry.,  132  Fed.  829, 
§§  153,  177. 

Interstate  Consolidated  Street  Ry. 
Co.  v.  Commonwealth  of  Massa- 
chusetts, 207  U.  S.  79,  §§  243, 
399. 

Iowa  Life  Ins.  Co.  v.  East  Mut.  Life 
Ins.  Co.,  64  N.  J.  L.  340,  §  157. 

Iowa  Life  Ins.  Co.  v.  Lewis,  187  U.  S. 
335,  §§  272,  299. 

Iron  Mountain  R.  Co.  v.  Memphis,  96 
Fed.  113,  §§  298,  485. 

Iron  Silver  Mining  Co.  v.  Cowie,  31 
Colo.  450,  §  11. 

Ivey  v.  State,  112  Ga.  175,  §  231. 

J. 
Jack    v.    Kansas,     199    U.    S.    372, 

§272. 
Jack    v.    Village    of    Grange ville,    9 

Idaho,  291,  §  229. 
Jackson  v.  Birmingham  Foundry  & 

Mach.  Co.  (Ala.,  1908),  45  So.  660, 

§231. 
Jackson  v.   Kittle,   34  W.  Va.   207, 

§§  236,  240. 
Jackson  v.  State,  87  Md.  191,  §  207. 


TABLE    OF   CASES    CITED 


lxix 


Jackson,  Attorney  General,  v.  Con- 
solidated Gas  Co.  See  "  Appen- 
dix C,"  herein. 

Jackson,  Ex  parte,  140  Fed.  266, 
§249. 

Jacksonville  Elec.  Light  Co.  v.  Jack- 
sonville, 36  Fla.  229,  §  11. 

Jacobson  v.  Massachusetts,  197  U.  S. 
11,  §§  149,  183,  239,  366,  386. 

Jacob  Tome  Inst,  of  Post  Deposit  v. 
Crothers,  87  Md.  569,  §  26. 

James  v.  Appel,  192  U.  S.  129,  §  269. 

Jamestown,  City  of,  v.  Home  Teleph. 
Co.,  125  N.  Y.  App.  Div.  1,  §  187. 

Jamieson  v.  Indianapolis  Nat.  Gas 
Co.,  128  Ind.  555,  §§  83,  374, 
388. 

Janesville  Hay  Tool  Co.  v.  Boyd,  35 
W.  Va.  240,  §  264. 

Jansen  v.  Ostrander,  1  Cow.  (N.  Y.) 
670,  §  57. 

Janvrin,  Petitioner  (Janvrin  v.  Re- 
vere Water  Co.),  174  Mass.  514, 
§  173. 

Jarrott  v.  Moberly,  103  U.  S.  580, 
§  343. 

Jarvis  v.  Hitch,  161  Ind.  217,  §  267. 

Jasper  v.  United  States,  38  Ct.  CI. 
202,  §§  236,  238. 

Jefferson  Bank  v.  Skelly,  1  Black 
(66  U.  S.),  436,  §§  254,  274,  277, 
412,  438,  455,  459. 

Jeffries  v.  Belleville  Iron  Works  Co., 
15  La.  Ann.  19,  §  64. 

Jenks  v.  Williams,  115  Mass.  217, 
§  387. 

Jennison  v.  Bell  Telephone  Co.,  95 
N.  Y.  Supp.  1137,  §  315. 

Jersey  City  v.  North  Jersey  St.  Ry. 
Co.,  72  N.  J.  L.  383,  §  254. 

Jersey  City  Gas  Co.  v.  Dwight,  29 
X.J.  Eq.  242,  §§  16,  344. 

Jersey  City  Gas  Light  Co.  v.  United 
Gas  Improvement  Co.,  46  Led.  264, 
§§  2,  5,  11,  96,  317,342. 

J.  F.  Conrad  Grocer  Co.  v.  St.  Louis 
&  M.  R.  R.  Co.,  89  Mo.  App.  391, 
§  387. 


Johnson  v.  Chicago  &  Pac.  Elevator 

Co.,  119  U.  S.  388,  §  391. 
Johnson  v.  Goodyear  Mining  Co.,  127 

Cal.  4,  §§  66,  300. 
Johnson  v.  New  York  Life  Ins.  Co., 

187  U.  S.  491,  §  273. 
Johnson  v.  Schlosser,   146  Ind.  509, 

§  236. 
Johnson  v.  Southern  Pac.  Rd.  Co., 

196  U.S.  1,§§  253,385. 
Johnson  v.  Southern  Pac.  Rd.  Co., 

117  Fed.  462,  §§  237,  253. 
Johnson  v.  State,  88  Ala.  176,  §  20. 
Johnston  v.  State,  91  Ala.  70,  §  286. 
Johnston  v.  State,  Sefton,   128  Ind. 

16,  §  219. 
Joliet,  City  of,  v.  Alexander,  194  111. 

457,  §  229. 
Joliffe    v.    Brown,     14    Wash.    155, 

§§  299,  300. 
Jones    v.    Carter    (Tex.    Civ.    App., 

1907),  101  S.  W.  514,  §  22. 
Jones  v.  Erie  &  W.  V.  R.  Co.,   169 

Pa.  333,  §  260. 
Jones  v.  Habersham,  107  U.  S.  174, 

§  307. 
Jones  v.  Williams,  139  Mo.  1,  §  51. 
Joplin,   City   of,    v.   Leckie,    78   Mo. 

App.  8,  §  343. 
Joseph  Roberts,  Ex  parte,   166  Mo. 

207,  §  137. 
Joy   v.   Jackson   &   Michigan   Plank 

Road  Co.,  11  Mich.  155,  §§  8,  14, 

30. 
Joy  v.  St.  Louis,  138  U.  S.  1,  §  97. 
Judge  v.  Spencer,  15  Utah,  242,  §  455. 
Judy  v.  Beck  (Iowa,  1908),  14  N.  W. 

565,  §  421. 
Julian  v.  Central  Trust  Co.,  193  U.  S. 

93,  §§11,  478. 
Julius    v.    Callahan,    03    Minn.    154, 

§  221. 
Jungk    v.   Holbrook,    15   Utah,    L98, 

§  215. 
Justice    v.    Commonwealth,    81    Va. 

209,  §  282. 
Justices,  Opinion  of,  150  Mass.  593, 

§11- 


lxx 


TABLE    OF   CASES    CITED 


Justices,  Opinion  of,  In  re,  97  Me. 
590,  §  87. 

K. 
Kane  v.  Garfield,  60  Vt.  79,  §  238. 
Kane  v.  Kansas  City,  Ft.  Smith  & 

Memphis    Ry.    Co.,    112    Mo.    34, 

§§  239,  261. 
Kansas  v.  Colorado,  206  U.  S.  46, 

§§120,  204,  289. 
Kansas  City,   S.    &   G.   Ry.   Co.   v. 

Louisiana  Western  R.  Co.,  116  La. 

178,  §§  103,  105,  107. 
Kansas  Pacific  R.  Co.  v.  Atchison, 

Topeka  &  Santa  Fe  R.   Co.,   112 

U.  S.  414,  §§  51,  60,  139. 
Karasek    v.    Peier,    22   Wash.   419, 

§  366. 
Keefe  v.  Lexington  &  Boston  St.  Ry. 

Co.,  185  Mass.  183,  §  197. 
Keen  v.  Waycross,  101  Ga.  588,  §11. 
Keese  v.   Denver,    10  Colo.   112,   15 

Pac.  825,  §  270. 
Keller  v.   Home   Life  Ins.   Co.,    19S 

Mo.  440,  §  300. 
Kelley  v.  Rhodes,  188  U.  S.  1,  §  404. 
Kemp  v.  Stradley  (Mich.),  97  N.  W. 

41,  §  119. 
Kenaga  v.  Kerr,  123  111.  659,  §§  282, 

283. 
Kendall  v.  Hynes  Lumber  Co.,   96 

Wis.  659,  §  264. 
Kendall  v.  Klapperthal  Co.,  202  Pa. 

596,  §  11. 
Kendall  v.  United  States,  12  Pet.  (37 

U.  S.)  524,  §  269. 
Kennebec    &    Portland    Rd.    Co.    v. 

Portland  &  Kennebec  Rd.  Co.,  59 

Me.  9,  §§  1,3,  11,  14,  17,25. 
Kennedy  v.  Bollmar,  61  N.  J.  L.  20, 

§11. 

Kenney  v.  Hannibal  &  St.  J.  R.  Co., 
62  Mo.  476,  §  372. 

Kent  County  Agricultural  Soc.  v. 
Housemary,  81  Mich.  609,  §  68. 

Kentucky  &  I.  Bridge  Co.  v.  Louis- 
ville &  N.  R.  Co.  (C.  C),  37  Fed. 
567,  §§  17,  251. 


Kentucky   C.    R.    Co.    v.    Common- 
wealth, 10  Ky.  L.  Rep.  706,  §  479. 
Kentucky  Railroad  Tax  Cases,   115 

U.S.  321,  §  421. 
Keokuk  &  Hamilton  Bridge  Co.  v. 

Illinois,  175  U.  S.  626,  §  418. 
Keokuk  &  Western   R.   Co.   v.  Mis- 
souri,  152  U.  S.  301,  §§  201,  479, 

481,  482. 
Kepner  v.  United  States,  195  U.  S. 

100,  §§  240,  259. 
Kessler  v.  Armstrong  Cork  Co.,  158 

Fed.  744,  §  272. 
Ketchikan    Co.    v.    Citizens'    Co.,    2 

Alaska,  120,  §  343. 
Kettle  v.  City  of  Dallas,  35  Tex.  Civ. 

App.  632,  §  337. 
Keystone    Driller    Co.    v.    Superior 

Court,  138  Cal.  738,  §  353. 
Kidd  v.  Pearson,  128  U.  S.  1,  §  391. 
Kies  v.  Lowrey,  199  U.  S.  233,  §  310. 
Kilbourne  v.  Supervisor  of  Sullivan 

F.  St.  R.,  62  Hun  (N.  Y.),  210, 

§  265. 
Kimball  v.  Town  of  Rosendale,   42 

.  Wis.  407,  §  288. 
Kimmish    v.   Ball,     129   U.   S.   217, 

§372. 
King    v.    Nicholson,    21    East,    330, 

§15. 
Kirben  v.  Virginia-Carolina  Chemical 

Co.,  145  Fed.  288,  §  67. 
Kirby     v.     Association,      14     Gray 

(Mass.),  249,  §  387. 
Kirksey  v.  Florida  &  G.  Plank  Road 

Co.,  7  Fla.  23,  §  235. 
Kispiminetas     Township     v.     Cone- 

maugh  Gas  Co.,  14  Pa.  Super.  Ct. 

67,  §  388. 
Kit  Carter  Cattle  Co.  v.  McGillin,  10 

Ohio  S.  C.  P.  Dec.  146,  §  463. 
Kittanning    Coal    Co.    v.    Common- 
wealth, 29  P.  F.  S.  104,  §  424. 
Kittanning  Electric   Light,   H.  &  P. 

Co.  v.  Kittanning,    11   Pa.  Super. 

Ct.  31,  §  360. 
Kittinger  v.  Buffalo  Traction  Co.,  160 

N.  Y.  377,  §§  136,  167,  379. 


TABLE    OF   CASES    CITED 


lxxi 


Kittinger  v.  Buffalo  Traction  Co.,  49 

N.  Y.  Supp.  713,  §§  136,  140,  141, 

188. 
Knapp  &  Cowles  Mfg.  Co.  v.  New- 
York,  New  Haven  &  Hartford  Ry. 

Co.,  76  Conn.  311,  §  300. 
Knickerbocker    Importation    Co.    v. 

State  Board  of  Assessors  (N.  J.),  62 

Atl.  266,  §  356. 
Knight    v.    Burnham,    90    Me.    294, 

§287. 
Knight  v.  Ocean  County,  49  N.  J.  L. 

485,  §  270. 
Knight,  Ex  parte  (Fla.),  41  So.  786, 

§245. 
Knoup  v.   Piqua  Bank,    1   Ohio  St. 

603,  §§  1,  3,  5,  10,  11,  19,  21,  69, 

339,  412,  455. 
Knowlton  v.  Moore,   178  U.  S.  41, 

§  205. 
Knoxville   v.    Africa,    77   Fed.    501, 

§  463. 
Knoxville   v.    Knoxville   Water   Co. 

See  "Appendix  C,"  herein. 
Knoxville  &  O.  R.  Co.  v.  Harris,  99 

Tenn.  684,  §§  66,  455. 
Knoxville   Water  Co.   v.   Knoxville, 

200  U.  S.  22,  §§  23,  254. 
Knoxville   Water  Co.   v.   Knoxville, 

189  U.  S.  434,  §  395. 
Kohl  v.  United  States,  91  U.  S.  367, 

§  155. 
Kotz  v.  Illinois  Cent.  Ry.  Co.,  188 

III.  578,  §  100. 
Kraus  v.   Lehman   (Ind.,    1908),   83 

N.  E.  714,  §  231. 
Kuhn  v.  Knight,  101  N.  Y.  Supp.  1, 

§  347. 
Kundinger  v.  City  of  Saginaw,   132 

Mich.  395,  §  186. 
Kusenberg  v.   Browne,   42  Pa.   173, 

§17. 
Kyle  v.  Texas  &  N.  O.  R.  Co.  (Tex.), 

4  L.  R.  A.  275,  §  63. 


Lace  v.  People  (Colo.),  95  Pac.  246, 
§223. 


Laclede  Gas  Light  Co.  v.  Murphy,  170 

U.S.  78,  §§335,336. 
La  Farge  v.  Exchange  Ins.  Co.,  22 

N.  Y.  352,  §  64. 
Lafayette    Ins.    Co.    v.    French,    18 

How.  (59  U.  S.)  404,  §  353. 
La  Harpe,  City  of,  v.  Elm  Township 

Gas  Light,  Fuel  &  Power  Co.,  69 

Kan.  97,  §  379. 
Lake  County  v.  Rollins,   130  U.  S. 

662,  §  237. 
Lake  Shore  &  M.  S.  R.  Co.  v.  Cin- 
cinnati, W.  &  M.  R.  Co.,  116  Ind. 

578,  §  261. 
Lake  Shore  &  Michigan  Southern  Ry. 

Co.  v.  Ohio,  173  U.  S.  285,  §§  369, 

375,  378,  384. 
Lake  Shore  &  Michigan  Southern  Ry. 

Co.  v.  Ohio,  165  U.  S.  365,  §§  127, 

152. 
Lake  Shore  &  Michigan  Southern  Ry. 

Co.  v.  Smith,  173  U.  S.  684,  §§  66, 

67,  375,  391,  411,  412. 
Lake   Superior    &    Miss.    R.    Co.    v. 

United  States,  93  U.  S.  442,  §§17, 

107,  341. 
Lake  Superior  S.  C.  &  Iron  Co.  v. 

Cunningham,  155  U.  S.  354,  §  341. 
Lamborn     v.    Bell,     18    Colo.    346, 

§77. 
Lamson  Consol.  Store-Service  Co.  v. 

Boston,  170  Mass.  354,  §  440. 
Lancaster,  City  of,  v.  Briggs  (Mo., 

1906),  96  S.  W.  314,  §  347. 
Land    Grant    Ry.    &    Trust    Co.    v. 

Coffey,  County  Board  of  Commis- 
sioners of,  6  Kan.  245,  §  51. 
Land,  Log  &  Lumber  Co.  v.  Brown, 

73  Wis.  294,  §  230. 
Landrum  v.  Flannigan,  60  Kan.  436, 

§249. 
Lane  v.  Minnesota  State  Agricultural 

Soc,  62  Minn.  175,  §§  62,  68. 
Langdon    v.    Mayor,    etc.,    of    New 

York,  93  N.  Y.  129,  §33. 
Langdon  &  Creasy  Co.  v.  Trustees  of 

Owenton  Common  School  Dist.,  25 

Ky.  L  Rep.  823,  §  440. 


lxxii 


TABLE    OF   CASKS    CITED 


Langworthy     v.     C.     C.     Washburn 

Flouring  Mills  Co.,  77  Minn.  256, 

§252. 
Lansing  v.  Lansing  City  Elec.  R.  Co., 

109  Mich.  123,  §  337. 
Lansing    v.    Schenectady,    84    App. 

Div.  91,  §  33. 
Laporte,  City  of,   v.   Gamewell  Fire 

Alarm   Teleg.   Co.,    146   Ind.   466, 

§  269. 
Laramie  County  v.  Albany  County, 

92  U.  S.  307,  §  310. 
Laredo,    City    of,    v.    International 

Bridge  &  Tramway  Co.,   66  Fed. 

246,  §  22. 
Laredo  Elect.  Ry.  Co.  v.  Hamilton, 

23  Tex.  Civ.  App.  480,  §  337. 
Larrabee  Flour  Mills  Co.  v.  Wiscon- 
sin Pac.  Ry.  Co.,  74  Kan.  808,  §  63. 
Lasher  v.  People,  183  111.  226,  §§  1,  2, 

21,  144,  185. 
Latonia  Agricultural  &  S.  Assoc,  v. 

Donnelly,    20   Ky.    L.   Rep.    1891, 

§428. 
Lauman  v.  Lebanon  Valley  R.  Co.,  30 

Pa.  42,  §  481. 
Law  v.  People,  87  111.  385,  §  205. 
Lawrence  v.   Chatteroi  Rd.   Co.,   81 

Ky.  225,  §  56. 
Lawrence  v.  Hennessy,  165  Mo.  659, 

§379. 
Lawrence  v.   Morgan's   Louisiana  & 

Tex.  R.  &  S.  Co.,  39  La.  Ann.  427, 

§63. 
Lawrence  v.  Times  Printing  Co.,  22 

Wash.  482,  §§  3,  21. 
Lawson  v.  Illinois  Southern  Ry.  Co., 

116  Mo.  App.  690,  §  464. 
Leader    Printing   Co.    v.    Nichols,    6 

Okla.  302,  §  250. 
Leadville  Water  Co.  v.  City  of  Lead- 

ville,  22  Colo.  297,  §  390. 
League  v.  Texas,  184  U.  S.  156,  §  287. 
Lears  v.  Seaboard  Air  Line  Ry.  Co. 

(Ga.  App.,    1908),   60  S.   E.   343, 

§  233. 
Leavell  v.  Western  Union  Teleg.  Co., 

116  N.  Car.  211,  §  390. 


Leavenworth  v.  Miller,  7  Kan.  298, 

§231. 
Leavitt  v.  Canadian  Pacific  R.  Co.,  90 

Me.  153,  §  287. 
Leavitt   v.   Loverin,   64   N.   H.   607, 

§  249. 
Lebanon   Light   &   Magnetic   Water 

Co.  v.  City  of  Lebanon,   163  Mo. 

254,  §  188. 
Lee  v.  Southern  Pacific  R.  Co.,  116 

Cal.  97,  §  464. 
Leeper  v.  State,  103  Tenn.  500,  §  22. 
Le  Feber  v.  West  Allis,  119  Wis.  608, 

§§  184,  195,  235. 
Legal   Tender  Cases,    110   U.   S.   4, 

§  209. 
Lehigh  Bridge  v.  Lehigh  Coal  &  Nav. 

Co.,  4  Rawle  (Pa.),  8,  §  64. 
Lehigh   Coal    &    Nav.    Co.   v.    Inter 

County   St.   R.   Co.,    167   Pa.   75, 

§  379. 
Lehigh  Valley  Rd.  Co.   v.   Pennsyl- 
vania, 145  U.  S.  192,  §§  404,  427. 
Lehigh    Water   Co.    v.    Easton,    121 

U.  S.  388,  §  301. 
Lehigh  Water  Co.'s  Appeal,  102  Pa. 

515,  §§  24,  41. 
Leigh   v.    Garysburg   Mfg.    Co.,    132 

N.  Car.  167,  §  63. 
Leisy    v.    Hardin,    135    U.    S.    100, 

§§  370  374,  404. 
Leloup  v.  Port  of  Mobile,  127  U.  S. 

640,  §§  358,  360,  404. 
Leonard  v.  Columbia  Steam  Naviga- 
tion Co.,  84  N.  Y.  48,  §  271. 
Levee  Inspectors  of  Chicot  County  v. 

Crittenden,  94  Fed.  613,  §  89. 
Levis  v.  Newton  (C.  C),  75  Fed.  884, 

§  314. 
Lewis  v.  Cincinnati  St.  Ry.  Co.,   10 

Ohio  S.  &  C.  P.  Dec.  53,  §  387. 
Lewis  v.  Intendant  and  Town  Coun- 
cil of  Gainesville,  7  Ala.  85,  §  26. 
Lewis  v.  Maysville  &  Big  Sandy  Rd. 

Co.,  25  Ky.  L.  Rep.  948,  §  11. 
Lewis  v.  Shreveport,  108  U.  S.  282, 

§  343. 
Lewis  v.  Whittle,  77  Va.  415,  §  93. 


TABLE    OF   CASES    CITED  lxxiii 

Lexington  Ave.,  In  re,  63  How.  Prac.  Logan  v.  McAllister,  2  Del.  Ch.  176, 

(N.  Y.)462,  §  231.  §350. 

Lexington,  City  of,  v.  Thompson,  24  Logan  v.  North  Carolina  R.  Cp.,  116 

Ky.  L.  Rep.  384,  §  137.  N.  Car.  940,  §  464. 

Licznerski  v.   Wilmington  City   Ry.  Logan  &  Bryan  v.   Postal  Teleg.  & 

Co.  (Del.  Super.),  62,  §  387.  Cable  Co.,  157  Fed.  570,  §  231. 

Lincoln  &  Kennebec  Bank  v.  Rich-  Logan,     County     of,     v.     Carnahan 

ardson,     1    Greenlf.     (1    Me.)    81,  (Neb.),  95  N.  W.  812,  §  238. 

§  348.  Logan   Natural    Gas  Co.   v.   City  of 

Lincoln,  City  of,  v.  Lincoln  St.  Ry.  Chillicothe,  65  Ohio  St.  186,  §  392. 

Co.,  67  Neb.  469,  §  337.  London  v.  Coleman,  59  Ga.  653,  §  64. 

Lincoln,  County  of,  v.  Luning,   133  Londoner  v.   Barton,    15  Colo.   246, 

U.  S.  529,  §  56.  §  21. 

Lincoln,  In  re,  202  U.  S.  178,  §  416.  Londoner   v.    People,    15   Colo.   246, 

Lincoln     Park     Chapter,      etc.,      v.  §§1,  11. 

Swatek,  204  111.  228,  §  486.  Loney,  In  re,  134  U.  S.  372,  §  416. 

Lincoln  School  Township  v.  Ameri-  Long  Acre  Electric  Light  &  Power 

can  School  Furn.  Co.,  31  Ind.  App.  Co.,  In  re,   101  N.  Y.  Supp.  460, 

405,  §  282.  §§  379,  463,  466,  469,  477. 

Lincoln  St.  Ry.  Co.  v.  City  of  Lin-  Long   Island    Water   Supply   Co.    v. 

coin,  61  Neb.  109,  §§  23,  47,  226,  Brooklyn,    166   U.   S.    685,    §§  23, 

254,  379,  380,  387,  412,  455.  254,  257,  311. 

Linden  Land  Co.  v.  Milwaukee  Elect.  Lord  v.  Dunster,  79  Cal.  477,  §  222. 

Ry.    &   Light   Co.,   107   Wis.   493,  Lord  v.  Equitable  Life  Assur.  Soc,  94 

§§  8,  12,  31,  48,  185.  N.  Y.  Supp.  65,  §  324. 

Linn  v.  Chambersburgh  Borough,  160  Los  Angeles,  City  of,  v.  Los  Angeles 

Pa.  511,  §  11.  City   Water   Co.,    177    U.   S.    558, 

Linsay  &  Phelps  Co.  v.  Mullen,  176  §  395. 

U.  S.  126,  §  90.  Los  Angeles  City  Water  Co.  v.  City  of 

Lippincott  v.  Allander,  27  Iowa,  460,  Los  Angeles,  88  Fed.  720,  §  395. 

§  26.  Los  Angeles  Holiness  Band  v.  Spires, 

Liquidation.     See  board  of.  126  Cal.  541,  §  486. 

Litchfield  v.  Ballou,   114  U.  S.  190,  Los  Angeles  Ry.  Co.  v.  City  of  Los 

§  343.  Angeles  (Cal.,  1907),  92  Pac.  490, 

Little  v.  State,  60  Neb.  749,  §  236.  §  48. 

Little  Rock  &  Memphis  Rd.  Co.  v.  Los  Angeles  Terminal   Land  Co.   v. 

St .  Louis,  Iron  Mountain  &  South-  Southern   Pac.   Rd.   Co.,    136  Cal. 

em  Ry.  Co.,  59  Fed.  400,  §  63.  36,  §  80. 

Liverpool  &  L.  &  G.  Ins.  Co.  v.  Board  Louisiana  v.  Jumel,   107  U.  S.  711, 

of    Assessors,   51    La.    Ann.    1028,  §  334. 

§  440.  Louisiana  v.  New  Orleans,  166  U.  S. 

Liverpool  Ins.  Co.  v.  Massachusetts,  143,  §  334. 

10  Wall.  (77  U.  S,)  566,  §§  49,  52,  Louisiana  &  N.  R.  R.  Co.  v.  State 

<>7.  ■\'>7.  Board    of   Appraisers,    10S    La.    1  I, 

Livingston  County  Agricultural  Soc.  §§  454,  455. 

v.  Hunter,  110  111.  155,  §  68.  Louisiana,  A.  &  M.  R.  Co.  v.  Tensas 

Lloyd  v.  Hamilton,  52  La.  Ann.  861,  Basin    Levee    Dist.    Commrs.,    87 

§215.  Fed.  594,  §  89. 


Ixxiv 


TABLE    OF   CASES    CITED 


Louisville  v.  Louisville  Water  Co.,  20 
Ky.  L.  Rep.  1529,  §  379. 

Louisville  &  Jeffersonville  Ferry  Co. 
v.  Kentucky,  188  U.  S.  385,  §§  26, 
431. 

Louisville  &  Nashville  Rd.  Co.  v. 
Behlmer,  175  U.  S.  G48,  §§403, 
413,  414,  415. 

Louisville  &  Nashville  R.  Co.  v. 
Brown,  123  Fed.  946,  §  147. 

Louisville  &  Nashville  R.  Co.  v. 
Commonwealth,  99  Ky.  132,  §  390. 

Louisville  &  Nashville  R.  Co.  v.  Com- 
monwealth (Ky.),  46  S.  W.  702, 
§  226. 

Louisville  &  Nashville  R.  Co.  v.  Eu- 
bank, 184  U.  S.  27,  §  414. 

Louisville  &  Nashville  R.  Co.  v.  Ken- 
tucky, 183  U.  S.  503,  §§  272,  276, 
412. 

Louisville  &  Nashville  R.  Co.  v.  Ken- 
tucky, 161  U.  S.  677,  §§  38,  167, 
184,  295,  366,  381,  396,  468,  476. 

Louisville  &  Nashville  R.  Co.  v. 
Palmes,  109  U.  S.  244,  §§  479, 
480. 

Louisville  &  Nashville  R.  Co.  v.  Rail- 
road Commission,  19  Fed.  679, 
§  390. 

Louisville  &  Nashville  R.  Co.  v. 
Lansford,  102  Fed.  62,  §  272. 

Louisville  &  Nashville  R.  Co.  v.  West 
Coast  Naval  Stores  Co.,  19S  U.  S. 
483,  §  391. 

Louisville  &  Nashville  R.  Co.  v. 
Williams,  20  Ky.  L.  Rep.  77,  §  311. 

Louisville,  etc.,  R.  R.  Co.  v.  McChord, 
103  Fed.  216,  §  416. 

Louisville,  Cincinnati  &  Charleston 
Rd.  Co.  v.  Letson,  2  How.  (43 
U.S.)  497,  §§  51,67. 

Louisville,  City  of,  v.  Common- 
wealth, 1  Duer  (62  Ky.),  295,  §  64. 

Louisville,  City  of,  v.  Hyatt,  2  Mon. 
(41  Ky.)  77,  §  231. 

Louisville  Gas  Co.  v.  Citizens'  Gas 
Co.,  115  U.  S.  683,  §§  82,  303,  311, 
325. 


Louisville,   N.  A.   &  C.  Ry.  Co.  v. 

Louisville  Trust  Co.,  174  U.  S.  552, 

§§  67,  353. 
Louisville,  N.  O.  &  T.  Co.  v.  Missis- 
sippi, 133  U.  S.  587,  §  386. 
Louisville    School    Board    v.     King 

(Ky.),  107S.W.  247,  §  205. 
Louisville   Tank   Line   v.    Common- 
wealth, 29  Ky.  L.  Rep.  257,  §  423. 
Louisville  Tobacco  Warehouse  Co.  v. 

Commonwealth,   20  Ky.   L.   Rep. 

1047,  1747,  §§  1,  2,  3,  10,  11,  12, 

423. 
Louisville  Trust  Co.  v.  Cincinnati,  76 

Fed.  296,  §§  311,  313,  344. 
Louisville    Trust    Co.    v.    Louisville, 

N.  A.  &  C.  R.  Co.,  75  Fed.  440, 

§  353. 
Louisville  Water  Co.   v.   Clark,   143 

U.  S.  1,  §§  321,  458. 
Loving,  Ex  parte,  178  Mo.  194,  §  233. 
Lowe  v.  United  States,  38  Ct.  CI.  170, 

§  236. 
Lowell  v.   Washington  County  Rd. 

Co.,  90  Me.  80,  §  243. 
Lowrey   v.    Gridley,    30   Conn.   450, 

§  289. 
Lumberville  Bridge  Co.  v.  Assessors, 

55  N.  J.  L.  529,  §§  8,  34,  424. 
Luther  v.  Borden,  7  How.  (48  U.  S.) 

1,  §  272. 
Luxton  v.  North  River  Bridge  Co., 

153  U.  S.  525,  §  127. 
Lycoming  Co.  v.  Gamble,  47  Pa.  106, 

§  425. 
Lyng  v.   Michigan,    135  U.  S.    161, 

§370. 
Lyons  v.  Orange,  A.  &  M.  R.  Co.,  32 

Md.  98,  §§  483,  349. 

M. 

Mac.     See  Mc. 

Machias   Boom   v.   Holway,   89   Me. 

236,  §  90. 
Mackay   v.   City   &   County   of   San 

Francisco,  128  Cal.  678,  §  440. 
Mackay  v.  San  Francisco,   113  Cal. 

392,  §  453. 


TABLE    OF   CASES   CITED 


lxxv 


Macon  &  W.  R.  Co.  v.  Davis,  13  Ga. 

68,  §  254. 
Macon,  Town  of,  v.  Patty,  57  Miss. 

378,  §  366. 
Madden  v.  Lancaster  County,  65  Fed. 

188,  §  56. 
Madera  County  v.  Raymond  Granite 

Co.,  139  Cal.  128,  §  63. 
Madison,  City  of,  v.  Madison  Gas  & 

Elec.  Co.,  129  Wis.  249,  108  N.  W. 

65,  §§  63,  76,  82,  366,  392. 
Maestri  v.   Board  of  Assessors,   110 

La.  517,  §§  1,  2,  3,  4,  21,  26,  132, 

423. 
Magill    v.    Parsons,    4    Conn.    321, 

§126. 
Maginn    v.    Bassford,    196    111.    266, 

§§  21,  36. 
Mahan  v.  Michigan  Teleph.  Co.,  132 

Mich.  242,  §§  311,  314. 
Mahomet  v.  Quackenbush,  117  U.  S. 

508,  §§  245,  247. 
Maia's  Admr.  v.  Directors  of  Eastern 

State  Hospital,  97  Va.  507,  §  85. 
Maillard  v.  Lawrence,   16  How.   (57 

U.  S.)  251,  §  238. 
Maine  v.  Grand  Trunk  Ry.  Co.,  142 

U.  S.  217,  §§  359,  426. 
Mallon  v.  Hyde,  76  Fed.  388,  §  226. 
Mallory  v.  Saratoga  Lake  Bridge  Co., 

104  N.  Y.  Supp.  1025,  §  17. 
Mallory  v.  Fayetteville,  122  N.  Car. 

480,  §  231. 
Malone  v.  Waukesha  Electric  Light 

Co.,  120  Wis.  485,  §  379. 
Malone  v.  Williams,  118  Tenn.  390, 

§§  178,  186,  188. 
Manhattan    Co.    v.    Laimbeer,    108 

N.  Y.  578,  §  236. 
Manhattan  Trust  Co.  v.  Sioux  City 

Cable  Ry.  Co.,  OS  Fed.  82,  §  111. 
Manigault  v.  Springs,  199  U.  S.  473, 

§  366. 
Manistee  <fe  N.  E.  R.  Co.  v.  Commis- 
sioner of  Railroads,  118  Mich.  349, 
§§  459,  460. 
Manistee,  City  of,  v.  Harley,  79  Mich. 
238,  §  171. 


Manker  v.  Faulhaber,  94  Mo.  430, 

§2S2. 
Manley  v.  Meyer,  68  Kan.  377,  §  245. 
Manley  v.  State,  7  Md.  135,  §  205. 
Manning  v.  Chesapeake  &  P.  Teleph. 

Co.,  18  App.  D.  C.  191,  §  136. 
Manthey  v.  Vincent,  145  Mich.  327, 

§  21S. 
Manufacturers'    Gas    &    Oil    Co.    v. 

Indiana  Natural  Gas  &  Oil  Co.,  155 

Ind.  545,  §  374. 
Marbury   v.    Madison,    1    Cranch    (5 

U.  S.),  137,  §  204. 
Marchant  v.  Pennsylvania  R.  Co.,  153 

U.  S.  380,  §  297. 
Marietta,    Town    of,    v.    Fearing,    4 

Ohio,  427,  §  69. 
Marion  v.  Forrest,  168  Ind.  94,  §  417. 
Market  St.  R.  Co.  v.  Hellman,   109 

Cal.  571,  §  481. 
Marr  v.  Stearns,  72  Minn.  200,  §  421. 
Marsh  v.  Kaye,  44  N.  Y.  App.  Div. 

68,  §  27(1. 
Marshall  v.  American  Express  Co.,  7 

Wis.  1,  §  79. 
Marshall  v.  Baltimore  &  Ohio  Rd. 

Co.,  16  How.  (57  U.  S.)  314,  §  51. 
Marshall    v.    Grimes,    41    Miss.    27, 

§§  233,  396. 
Marshall    v.    Western    Union   Teleg. 

Co.,  79  Miss.  154,  §  376. 
Marshalltown   Light,   P.   &   Ry.   Co. 

v.    Marshalltown,    127  Iowa,   637, 

§  337. 
Martens  v.  The  People,  186  111.  314, 

§47. 
Martin  v.  Baltimore  &  Ohio  Rd.  Co., 

151  U.  S.  673,  §  355. 
Martin  v.  District  of  Columbia,  205 

U.  S.  135,  §§  231,  399. 
Martin    v.    Hunter,    1    Wheat.    (14 

U.  S.)  304,  §  205. 
Martin   v.    Pittsburg,   etc.,   Rd.,   203 

U.S.  284,  §  369. 
Martin  v.  Remington-Martin  Co.,  88 

X.  V.Supp.  573,  §  335. 
Martin  v.  Rock  Island  County  Ally., 
186  [U.314,  §  21. 


lxxvi 


TABLE    OF   CASES    CITED 


Martin  v.  South  Salem  Land  Co.,  94 

Va.  28,  §§  233,  245. 
Martin    v.    Tyler,    4    N.    Dak.    278, 

§§  232,  234. 
Marvin  v.  Anderson,   111  Wis.  387, 

§463. 
Marye  v.  Baltimore  &  Ohio  Rd.  Co., 

127  U.  S.  117,  §  421. 
Marye  v.  Hart,  76  Cal.  291,  §  205. 
Maryland  v.  Baltimore  &  Ohio  Rd. 

Co.,  3  How.  (44  U.  S.)  534,  §  286. 
Maryland  Agricultural  College  v.  At- 
kinson, 102  Md.  557,  §§  236,  237. 
Mason  v.  Harper's  Ferry  Bridge  Co., 

17  W.  Va.  396,  §  26. 
Massachusetts     v.     Western     Union 

Teleg.  Co.,  141  U.  S.  40,  §  425. 
Massachusetts  Loan  &  Trust  Co.  v. 

Hamilton,  88  Fed.  588,  §§  111,  240. 
Mather  v.  City  of  Ottawa,   114  111. 

659,  §  51. 
Mathias  v.  Cramer,  73  Mich.  5,  §  234. 
Mattern   v.   Canevin,    213    Pa.    588, 

§455. 
Matter  of.     See  name  of  party. 
Matter  of  Metropolitan  Transit  Co., 

Ill  N.  Y.  588,  §  183. 
Matter  of  Oaths  by  Attorneys  and 

Counsellors,  20  Johns.  (N.  Y.)  491, 

§  21. 
Matter  of  Thirty-Fourth' St.  R.  Co., 

102  N.  Y.  343,  §  183. 
Matthews   v.   Board   of   Corporation 

Commrs.  of  North  Carolina,  97  Fed. 

400,  §§  324,  401. 
Maule    Coal    Co.     of    Princeton    v. 

Partenheimer  (Ind.),  55  N.  E.  751, 

§245. 
Maynard  v.  Board  of  Canvassers,  84 

Mich.  228,  §§  216,  230. 
Mayor.    See  also  name  of  city. 
Mayor  v.  Twenty-Third  St.  R.  Co., 

113  N.Y.  311,§  324. 
Mayor,  etc.,  v.  Lord,  61  N.  J.  L.  136, 

38  Atl.  752,  §  176. 
Mayor,  etc.,  of  City  of  Meridian  v. 

Farmers'  Loan  &  Trust  Co.,   143 

Fed.  67,  §  298. 


Mayor,   etc.,   of  City  of   Newark  v. 

Erie  Rd.  Co.  (N.  J.  Ch.,  1907),  68 

Atl.  413,  §  172. 
Mayor,  etc.,  of  Knoxville  v.  Africa,  77 

Fed.  501,  §  187. 
Mayor,  etc.,  of  New  York  v.  Long- 
street,   64   How.   Pr.    (N.   Y.)    30, 

§186. 
Mayor  of  Detroit  v.  Park  Commis- 
sioners, 44  Mich.  602,  §§1,  3,  11, 

12,  55. 
Mayor  of  New  York  v.  Starin,  106 

N.  Y.  1,  §§  144,  257,  260. 
McArthur  v.  Scott,   113  U.  S.  340, 

§272. 
McAvoy  v.  City  of  New  York,   52 

N.  Y.  App.  Div.  485,  §  270. 
M'Cabe  v.  Illinois  Central  Rd.  Co.,  13 

Fed.  827.  §  11. 
McCall  v.  California,  136  U.  S.  104, 

§359. 
McCampbell  v.  State,  116  Tenn.  98, 

§§  282,  283. 
McCandless  v.  Richmond  R.  Co.,  38 

S.C.  103,  §  51. 
McCarter,  Atty.  General,  v.  Vineland 

Light  &  Power  Co.  (N.  J.  Ch.),  65 

Atl.  1041,  §§  138,  475. 
McCarthy  v.  McCarthy,  20  App.  D.  C. 

195,  §§  249,  253. 
McChord  v.  Louisville  &  N.  R.  Co., 

183  U.  S.  483,  §  401. 
McClellan  v.  Chipman,  164  U.  S.  347, 

§389. 
McComas  v.  Krug,  81  Ind.  327,  §  233. 
McCool  v.  Smith,  1  Black  (66  U.  S.), 

459,  §  238. 
McCormick  v.  Rush,   15  Iowa,   127, 

§231. 
McCulloch    v.    Maryland,    4    Wheat. 

(17  U.  S.)  316,  §§  120,   123,  417, 

418,  439. 
McCutcheon  v.  Merz  Capsule  Co.,  71 

Fed.  787,  §§  63,  464,  488. 
McDermott  v.  Nassau  Elect.  R.  Co., 

32  N.  Y.  884,  §  379. 
McDonald  v.  Hovey,  110  U.  S.  619, 

§§  269,  270. 


TABLE    OF   CASES    CITED  lxxvii 

McDonald,  In  re,  80  N.  Y.  Supp.  536,  McKee  Land  &  Improvement  Co.  v. 

§  190.  Swikehard,   51    N.   Y.   Supp.   399, 

McElvaine  v.  Bush,   142  U.  S.   155,  §  249. 

§  289.  McKeesport    v.    McKeesport    &    R. 

McFarland  v.  Missouri,  K.  &  T.  Ry.  Pass.   Co.,   2   Pa.   Super.   Ct.   242, 

Co.,  94  Mo.  App.  336,  §  238.  §  359. 

McGahey  v.  Virginia,  135  U.  S.  662,  McKim  v.  Odom,  3  Bland  (Md.),  407, 

§§  309,  416.  §  55. 

McGowan  v.  Metropolitan  Ins.  Co.,  McLeod  v.  Burrough,  9  Ga.  213,  §§  23, 

60  N.  J.  L.  198,  §  237.  257,  262. 

McGrath    v.    People,    100     111.    464,  McLeod  v.  Lincoln  Medical  College, 

§  21.  69  Neb.  550,  §  41. 

McGraw,  In  re,  v.  Cornell  University,  McMahn  v.   Morrison,    16  Ind.   172, 

45  Hun  (N.  Y.),  354,  §  42.  §  481. 

McGregor  v.  Erie  R.  Co.,  35  N.  J.  L.  McMahon  v.  McHale,  174  Mass.  320, 

89,  §§  14,  15,  52,  102,  107.  §  173. 

McGregor,   Town  of,   v.   Baylies,    19  McMillan  v.  Anderson,  95  U.  S.  37, 

Iowa,  43,  §  222.  §  297. 

McGrew   v.    Missouri   Pac.   Ry.    Co.  McMillan  v.  County  Judge  &  Treas. 

(Mo.  App.),  94  S.  W.  719,  §  413.  of  Lee  County,  6  Iowa,  391,  §  289. 

McGuire   v.    Chicago,    Burlington   &  McNamara  v.  Keene,  98  N.  Y.  Supp. 

Quincy  R.  Co.,  131  Iowa,  340,  108  860,  §  306. 

N.  W.  902,  §§  63,  66,  120,  136,  137,  McNeal  Pipe  &  Foundry  Co.  v.  How- 

231,  246,  283,  294,  300,  335,  365,  land,  111  N.  Car.  615,  §  17. 

369.  McNeill   v.    Southern    Ry.    Co.,    202 

McGwigan  v.  Wilmington  &  W.  R.  U.  S.  543,  §§  170,  371,  416. 

Co.,  95  N.  Car.  428,  §§  231,  233.  McNulty    v.    Batty,     10    How.    (51 

McHale  v.  Easton  &  B.  Transit  Co.,  U.  S.)  72,  §  139. 

169  Pa.  416,  §  344.  McNutt  v.  McNutt  (Ark.,  1906),  95 

McIIenry  v.  Alford,   168  U.  S.  651,  S.  W.  778,  §  269. 

§  426.  McPherson  v.  Blacker,   146  U.  S.  1, 

McIIenry   v.    Downer,    116   Cal.    20,  §205. 

§  227.  McReynolds  v.  Smallhouse,   8  Bush 

McHugh  v.  Louisville  Bridge  Co.,  23  (71  Ky.),  447,  §  231. 

Ky.  L.  Rep.  1546,  §  215.  McRoan  v.  Devries,  3  Barb.  (N.  Y.) 

Mclntire  v.  State  (Ind.),  83  N.   W.  198,  §  120. 

1005,  §  222.  McRobcrts  v.  Washburne,   10  Minn. 

Mcintosh   v.   Johnson,    51    Neb.   33,  23,  §§  1,  15,  17,  26,  340. 

§§  264,  287.  McWethy  v.  Aurora  Electric  Light  & 

McKee  v.  Chautauqua  Assembly,  130  Power  Co.,  202  111.  218,  §  345. 

Fed.  536,  §  319.  Mead  v.  Portland,  45  Ore.  1,  §  33. 

McKee  v.  Chautauqua  Assembly,  124  Meade    v.     Watson,     67    Cal.     591, 

Fed.  80S,  §  143.  §  215. 
McKee   v.    Grand    Rapids   &    Reeds  Mechanics'  &  Traders'  Bank  v.  De- 
Lake  St.  Ry.  Co.,  41    Mich.  274,  bait,  1  Ohio  St.  591,  §  311. 

§  17.  Mechanicville  v.  Stillwater  &  M.  St. 

McKee  v.  United  States,   164  U.  S.  Ry.   Co.,    71    N.    Y.   Supp.    1102, 

287,  §§  236,  239.  §  337. 


lxxviii 


TABLK    OF    CASKS    CITED 


Medical    &    Surgical   Soc.    of    Mont- 
gomery v.  Weatherly,  75  Ala.  24S, 

§§11,  12,  26,  28. 
Meffert   v.   State   Board   of   Medical 

Reg.  &  Exam.,  66  Kan.  710,  §  366. 
Melancon   v.    Phoenix   Ins.   Co.,    116 

La.  324,  §  87. 
Melville  Gas  Light  Co.  v.   Vineland 

Light   &    Power   Co.    (N.   J.    Eq., 

1906),  65  Atl.  504,  §  23. 
Memphis  v.  United  States,  97  U.  S. 

293,  §§  306,  309. 
Memphis    &    Charleston    R.    Co.    v. 

Alabama,  107  U.  S.  581,  §  67. 
Memphis  &  Little  Rock  Rd.  Co.  v. 

Berry,  37  N.  J.  L.  436,  §  46. 
Memphis  &  Little  Rock  Rd.  Co.  v. 

Commissioners,     112    U.    S.    609, 

§§  8,  11,  12,  20,  30,  38,  463,  478, 

479. 
Memphis  &  L.  R.  R.  Co.  v.  Southern 

Express  Co.    See  Express  Cases. 
Memphis  &  State  Line  Rd.   Co.   v. 

Union    Ry.    Co.,    116    Tenn.    500, 

§§  246,282,284,380. 
Memphis  City  Bank  v.  Tennessee,  161 

U.  S.  186,  §  560. 
Memphis,  City  of,  v.  Memphis  Water 

Co.,    5     Heisk.    (52    Tenn.)     495, 

§22. 
Memphis,   City  of,   v.   Postal  Teleg. 

Cable  Co.,  145  Fed.  602,  §  315. 
Memphis  Gas  Co.  v.  Shelby  County, 

109   U.  S.   398,   §§  361,   409,   412, 

455. 
Memphis  News  Pub.  Co.  v.  Southern 

Ry.  Co.,  110  Tenn.  684,  §  104. 
Memphis  Trust  Co.  v.  Board  of  Di- 
rectors of  St.  Francis  Levee  Dist., 

69  Ark.  284,  §  89. 
Mercantile  Bank  v.   Tennessee,    161 

U.  S.  160,  171,  §§  8,  11,  12,  20,  32, 

479,  480. 
Mercantile  Trust   &  Deposit  Co.   of 

Bait,  v.  Collins  Park  &  B.  R.  Co., 

99  Fed.  812,  §  313. 
Mercantile  Trust  Co.  v.  Texas,  etc., 

Ry.  Co.,  51  Fed.  529,  §  416. 


Merced  Falls  Gas  &  Elect.  Light  Co. 

v.  Turner,  2  Cal.  App.  720,  §§  133, 

313. 
Merchants'   &   Mfrs.  Bank   v.  Penn- 
sylvania,   167  U.  S.  461,    §§  277, 

417,  439. 
Merchants'   Life  Assoc,   of   U.  S.   v. 

Yoakum  (C.  C.  A.),  98  Fed.  251, 

§§  300,  354. 
Merchants'  National  Bank  v.  Ford, 

30  Ky.  L.  Rep.  558,  §  67. 
Merchants'  Police  &  Dist.  Teleg.  Co. 

v.  Citizens'  Teleph.  Co.,  29  Ky.  L. 

Rep.  512,  §  226. 
Mercur  Gold  Min.  &  Mill  Co.  v.  Spry, 

16    Utah,    222,    §§  215,    225,    227, 

287. 
Meriweather  v.  Garrett,  102  U.  S.  472, 

§417. 
Merrick  v.  Santvoord,  34  N.  Y.  208, 

§41. 
Merrill    v.    Crossman,    68    Me.    412, 

§265. 
Merrill  Ry.  &  Lighting  Co.  v.  City  of 

Merrill,  119  Wis.  249,  §  454. 
Merrimac  Mining  Co.  v.  Levy,  54  Pa. 

227,  §  271. 
Merritt  v.   Cameron,    137   U.   S.  42, 

§  262. 
Mersey  v.  Gibbs,  11  H.  L.  Cas.  686, 

§62. 
Messenger  v.  Pennsylvania  Rd.  Co., 

37  N.  J.  L.  531,  §§  74,  79,  97,  99, 

105. 
Metropolitan  City  R.  Co.  v.  Chicago 

West  Division  R.  Co.,  87  111.  317, 

§§  14,  26. 
Metropolitan  Life  Ins.  Co.  of  N.  Y.  v. 

City  of  New  Orleans,  205  U.  S.  395, 

§§  428,  440. 
Metropolitan   Railway  Receivership, 

In  re,  208  U.  S.  90.    See  "Appen- 
dix C, "  herein. 
Metropolitan    St.    Ry.    Co.    v.    New 

York,  199  U.  S.  1,  §§  6,  412,  417, 

426,  433,  455,  456,  460. 
Metropolitan  Trust  Co.  v.  Columbus 

&  H.  R.  Co.,  95  Fed.  18,  §  464. 


TABLE    OF   CASES    CITED 


lxxix 


Metropolitan  Trust  Co.   v.   Houston 

&  S.  C.  R.  Co.  (C.  C),  90  Fed.  683, 

§406. 
Meyer   v.    Berlandi,    39   Minn.   438, 

§234. 
Meyer  v.  Car  Co.,  102  U.  S.  1,  §  244. 
Meyer  v.   Hazelwood,    116   111.   319, 

§265. 
Meyer  v.  Johnson,  53  Ala.  237,  §§5, 

11,  42,  283,  471,  481. 
Meyer  v.  Town  of  Boonville,  162  Ind. 

165,  §  198. 
Meyers    v.    St.    Louis    Transit    Co. 

(Mo.  App.),  73  S.  W.  379,  §  387. 
Michigan  Central  R.  Co.  v.  Bulard, 

120  Mich.  416,  §  472. 
Michigan  Central  R.  Co.  v.  Powers, 

201  U.  S.  245,  §§  417,  422. 
Michigan  Central  R.  Co.  v.  Wealleans, 

24  Can.  S.  C.  309,  §§  464,  467. 
Michigan  Railroad  Tax  Cases  (C.  C), 

138  Fed.  223,  §  417. 
Michigan  Teleg.  Co.   v.   City  of  St. 

Louis,  121  Mich.  502,  §  171. 
Michigan  Teleph.  Co.  v.  City  of  St. 

Joseph,  121  Mich.  502,  §§  33,  140, 

465. 
Middlebury  v.  Edgerton,  30  Vt.  190, 

§17. 
Middlesex  Husbandmen  v.  Davis,  3 

Mete.  (44  Mass.)  133,  §  350. 
Middleton   National    Bank  v.  Town 

of    Middletown,     74     Conn.     449, 

§456. 
Milhau  v.  Sharp,  27  N.  Y.  611,  §§  1, 

14,  15,  17,  21,  122. 
Millard  v.  Roberts,  202  U.  S.  429, 

§341. 
Millay  v.  White,  86  Ky.  170,  §§  231, 

283. 
Miller   v.    Commonwealth,    112    Ky. 

404,  §§  1,  2,  21. 
Miller  v    Commonwealth,   27   Gratt. 

(Va.)  110,  §  64. 
Miller  v.  Dunne,  72  Cal.  462,  §  205. 
Miller  v.  Ewer,  27  Me.  509,  §  51. 
Miller  v.   Mayor  of   New  York,   109 

U-  S.  385,  §  127. 


Miller  v.  New  York,  109  U.  S.  385, 

393,  §  152. 
Miller  v.  New  York,  L.  &  W.  R.  Co., 

125  N.  Y.  118,  §  464. 
Miller    v.     Rutland    &    Washington 

Rd.   Co.,   36  Vt.  452,  §§  8,  12,  14, 

17. 
Miller  v.  State,  15  Wall.  (U.  S.)  478, 

§§  324,  331. 
Mills  v.  City  of  Chicago,  127  Fed.  731, 

§  392. 
Mills  v.  County  of    St.   Clair,  7   111. 

197,    §§  4,    15,    23,    24,    254,    255, 

323. 
Mills  v.   St.   Clair  County,   8  How. 

(49  U.  S.)  569,  §  144. 
Mills    Novelty    Co.    v.    Dunbar,    11 

Idaho,  671,  §  229. 
Millville  Gas  Light  Co.  v.  Vineland 

Light  &  Power  Co.  (N.  J.),  65  Atl. 

504,  §§  4,  24,  254. 
Milton  v.  Haden,  32  Ala.  30,  §§  15, 

133,  144. 
Milwaukee  County  v.  Sheboygan,  94 

Wis.  58,  §  269. 
Milwaukee  Elect,   Ry.   &   L.  Co.  v. 

Milwaukee,  95  Wis.  39,  §  337. 
Milwaukee  R.  &  L.  Co.  v.  Milwaukee, 

87  Fed.  577,  §§  390,  398. 
Mimick  v.  Ming  Iron  Works  Co.,  25 

W.  Va.  184,  §  271. 
Mineral  Point  R.  Co.  v.  Keep,  22  111. 

9,  §  65. 
Miners'  Ditch  Co.  v.  Zellenbach,  37 

Cal.  543,  §  56. 
Minis  v.  United  States,  15  Pet.  (40 

U.  S.)  423,  §  250. 
Minneapolis    &    Northern    Elevator 

Co.  v.  Traill  County,  9  N.  D    213, 

§421. 
Minneapolis  &  St.  L.  R.  Co   v.  Bcck- 

with,  129  U.  S.  26,  §§  66,  149,  294, 

295,  366. 
Minneapolis    &    St.    L.    Ry.    Co.    v. 

Gardner,    177    U     S     332,    §§  481, 

482. 
Minneapolis  &  St.  L.  R.  Co.  v.  Der- 
rick, 127  U-  S-  210.  §  G6. 


lxxx 


TABLE    OF   CASES    CITED 


Minneapolis  &  St.  L.  R.  Co.  v.  Minne- 
sota, 186  U.  S.  257  (see  "Appen- 
dix C,"  herein),  §§  167,  381,  391, 
399,  408,  409. 

Minneapolis  E.  Ry.  Co.  v.  Minnesota, 
134  U.  S.  467,  §§  407,  412. 

Minneapolis,  St.  Paul  &  S.  M.  Ry. 
Co.  v.  Dickey  County,  UN.  Dak. 
107,  §  423. 

Minnesota  v.  Barber,  136  U.  S.  313, 
§§  136,  373. 

Minnesota  v.  Brundage,  180  U.  S. 
499,  §  416. 

Minnesota  &  Pacific  Road  Co.  v. 
Sibley,  2  Minn.  13,  §§  205,  216,  220. 

Minnesota  &  St.  Louis  Rd.  Co.  v. 
Minnesota,  193  U.  S.  53,  §§  167, 
381,  383. 

Minnesota  Canal  &  Power  Co.  v. 
Koochicing  Co.,  97  Minn.  429, 
§§  63,  76. 

Minnesota  Iron  Co.  v.  Kline,  199 
U.  S.  593,  §§  272,  276. 

Minnesota  Sugar  Co.  v.  Iverson,  90 
Minn.  6,  §§  204,  288. 

Minor  v.  Mechanics'  Bank,  1  Pet. 
(26  U.  S.)  46,  §  286. 

Minor,  In  re,  69  Fed.  235,  §  370. 

Miocene  Ditch  Co.  v.  Jacobsen,  146 
Fed.  680,  §§  19,  63. 

Mississippi  River  Bridge  Co.  v. 
Lonergan,  91  111.  508,  §  15. 

Mississippi  Ry.  Commission  v.  Illi- 
nois Ry.  Co.,  203  U.  S.  335,  §§  375, 
416. 

Mississippi  Valley  Trust  Co.  v.  Hofins, 
20  Wash.  272,  §  262. 

Missouri  v.  Dockery,  191  U.  S.  165, 
§456. 

Missouri  v.  Illinois  (Chicago  Drainage 
Case),  200  U.  S.  496,  §  127. 

Missouri  v.  Missouri  Railroad  Com- 
missioners, 183  U.  S.  53,  §  416. 

Missouri,  Kansas  &  Texas  Ry.  Co.  v. 
Board  of  Commissioners,  9  Kan. 
App.  544,  §  448. 

Missouri,  Kansas  &  Texas  Ry.  Co.  v. 
Cambern,  66  Kan.  265,  §  89. 


Missouri,  Kansas  &  Texas  Ry.  Co.  v. 

Dinsmore.    See  Express  Cases. 
Missouri,  Kansas  &  Texas  Ry.  Co.  v. 

Haber,  169  U.  S.  613,  §§  373,  378, 

384. 
Missouri,  Kansas  &  Texas  Ry.  Co.  v. 

McCann,  174  U.  S.  580,  §  378. 
Missouri,  Kansas  &  Texas  Ry.  Co.  v. 

Miami  County  Commrs.,  67  Kan. 

434,  §  421. 
Missouri,  Kansas  &  Texas  Ry.  Co.  v. 

Shannon  (Tex.  Civ.  App.),  97  S.  W. 

527,  §§  417,  440. 
Missouri,  Kansas  &  Texas  Ry.  Co.  v. 

State  (Tex.  Civ.  App.,  1908),  109 

S.  W.  867,  §  231. 
Missouri  Pacific  Ry.  Co.  v.  Finley,  38 

Kan.  550,  §  372. 
Missouri  Pacific  Ry.  Co.  v.  Haley,  25 

Kan.  35,  §  269. 
Missouri  Pacific  Ry.  Co.  v.  Humes, 

115  U.  S.  512,  §  149. 
Missouri  Pacific  Ry.  Co.  v.  Mackay, 

127  U.  S.  205,  §§  66,  298,  320. 
Missouri  Pacific  Ry.  Co.  v.  Nebraska, 

164  U.  S.  403,  §§  298,  464. 
Missouri  River,  Ft.  S.  &  G.  R.  Co.  v. 

Morris,  7  Kan.  210,  §  448. 
Mitchell  v.  Negaunee,  113  Mich.  359, 

§§  11,  390. 
Mobile  v.  Louisville  &  Nashville  Rd. 

Co.,  84  Ala.  115,  §  48. 
Mobile  v.  Mobile  Light  &  Ry.  Co.,  141 

Ala.  442,  §  337. 
Mobile  &  Ohio  Rd.  v.  Tennessee,  153 

U.  S.  486,  §§  331,  454. 
Mobile,  City  of,  v.  Louisville  &  N.  R. 

Co.,  124  Ala.  132,  §  245. 
Mobile,  City  of,  v.  Stonewall  Ins.  Co., 

53  Ala.  570,  §  212. 
Mobile,  County  of,  v.  Kimball,  102 

U.  S.  691,  §  367. 
Mobile   Dry  Docks  Co.   v.   City   of 

Mobile,     146     Ala.     198,     §§    231, 

245. 
Mobile,  Jackson  &  Kansas  City  Rd. 

Co.  v.  Mississippi,  210  U.  S.   187, 

§167. 


TABLE    OF   CASES    CITED 


lxxxi 


Mohan  v.  Michigan  Telegh.  Co.,  132 

Mich.  242,  §  33. 
Monongahela    Bridge    Co.    v.    Pitts- 
burg &  Birmingham  Traction  Co., 

196  Pa.  25,  §§  8,  11. 
Monongahela  Nav.  Co.  v.  Coons,   6 

Watts  &  S.  (Pa.)  101,  §  205. 
Monongahela    Nav.    Co.    v.    United 

States,    148  U.  S.   312   (see   "Ap- 
pendix C,"  herein),  §§  17,  152. 
Monroe,  City  of,  v.  Detroit,  M.  &  T. 

Short  Line  R.  Co.,  143  Mich.  315, 

§  379. 
Monroe  Sav.  Bk.  v.  City  of  Rochester, 

37  N.  Y.  365,  §§  26,  423. 
Montclair  v.  Ramsdell,  107  U.  S.  147, 

§245. 
Montgomery  v.  Multnomah  Rd.  Co., 

11  Ore.  344,  §§  1,  15,  17,  24,  80. 
Montgomery  v.  National  Building  & 

Loan  Assoc,  108  Ala.  336,  §  245. 
Montgomery  v.  Portland,  190  U.  S. 

89,  §  127. 
Montgomery  v.  Santa  Ana  Westmin- 
ster Ry.  Co.,  104  Cal.  186,  §  111. 
Montgomery     Amusement     Co.     v. 

Montgomery  Traction  Co.  (C.  C), 

139  Fed.  353,  §  245. 
Montgomery  Light  &  Water  Co.   v. 

Citizens'  Light,  Heat  &  Power  Co. 

(Ala.,  1906),  40  So.  981,  §347. 
Montgomery   St.    Ry.   Co.   v.    Lewis 

(Ala.,  1906),  41  So.  736,  §  387. 
Montgomery  St.   Ry.   Co.   v.   Smith 

(Ala.),  39  So.  757,  §  337. 
Monticello  Teleph.  Co.  v.  Trustees,  72 

N.  Y.  Supp.  350,  §  198. 
Montpelier   Academy  v.   George,    14 

La.  395,  §  311. 
Moorshead   v.   United   Railway  Co., 

119  Mo.  App.  541,  §  465. 
Moran,    Ex    parte,     144    Fed.    594, 

§  130. 
Moran  v.  Miami  County,  2  Black  (67 

U.  S.),  722,  §  254. 
Moran  v.  Ross,  79  Cal.  l.V.i.  §  63. 
Morgan  v.  Louisiana,   118  U.  8.  455, 

§§  366,  391. 

vi 


Morgan  v.  Louisiana,  93  U.  S.  217, 

§§  3,  12,  17,  20,  480. 
Morgan's  Louisiana  &  Texas  Rd.  & 

Steamship  Co.   v.  Barton,   51   La. 

Ann.  133S,  §  247. 
Morgan's  Louisiana  &  Texas  Rd.  & 

Steamship   Co.    v.    Railroad   Com- 
missioners,   109    La.    247,    §§  167, 

184. 
Morie  v.  St.  Louis  Transit  Co.,   116 

Mo.  App.  12,  §  345. 
Morley  v.  Lake  Shore  &  M.   S.  Ry. 

Co.,  146  U.  S.  162,  §§  298,  339. 
Morris   v.   Cummings,   91   Tex.   618, 

§  233. 
Morris  v.  Powell,  125  Tnd.  281,  §  21. 
Morris  v.  State,  62  Tex.  728,  §  306. 
Morris   v.    Staton,   44    N.   Car.   464, 

§264. 
Morris  Coal  Co.  v.  Donley,  73  Ohio 

St.  298,  §  250. 
Morrisette  v.  Howard  (Kan.),  63  Pac. 

756,  §  463. 
Morrison  v.  Morey,  146  Mo.  543,  §  89. 
Morrison  v.  People,  196  111.  454,  §  21. 
Morristown,  City  of,  v.  East  Tennes- 
see  Teleph.    Co.,     115    Fed.    304, 

§§  33,  311. 
Morrow  v.  Wipf  (S.  Dak.,  1908),  115 

N.  W.  1121,  §  231. 
Morrow    Title    Illuminating    Co.    v. 

Village  of  Mt.  Gilead,  10  Ohio  S.  & 

P.  C.  Dec.  235,  §§  247,  379. 
Morse  v.  City  of  Omaha,  67  Nev.  426, 

§  229. 
Morse  v.  Garner,  1  Strobh.  (S.  Car.) 

514,  §  25. 
Morton  v.   Broderick,   118  Cal.  474, 

§  222. 
Mosher  v.  St.  Louis,  I.  M.  &  S.  R. 

Co.,  127  U.  S.  249,  §  413. 
Moulton  v.  Scarborough,  71  Me.  267, 

§  62. 
Mount    Pleasant    v.    Bcckwith,    100 

U.  S.  514,  §  55. 
Mugler   v.    Kansas,    123   U.   S.   623, 

§§  366,  391. 
Muldoon  v   Levy,  25  Neb.  157,  §  234. 


lxxxii 


TABLE    OF   CASES    CITED 


Munger  v.   Board  of  State  Medical 

Examiners,  90  Md.  G59,  §  248. 
Munn  v.  Illinois,  94  U.  S.   113  (see 

Granger  Cases),  §§  113,  297,  365, 

391,  400,  404. 
Murphy   v.    Board   of  Chosen   Free- 
holders, 57  N.  J.  L.  245,  §§  55,  58. 
Murphy  v.  Lindell  Ry.  Co.  (Mo.),  54 

S.  W.  442,  §  350. 
Murphy   v.    Utter,    186    U.    S.    95. 

§§  130,  165. 
Murphy  v.  Wheatley,   102  Md.  501, 

§491. 
Murray    v.    Hobson,     10    Colo.    66, 

§§  236,  238. 
Murray    v.    Minefee,    20    Ark.    561, 

§§  144,  178. 
Murray  v.  State,  21  Tex.  App.  620, 

§§  238,  248,  249. 
Murray  Hill  Land  Co.  v.  Milwaukee 

Light,   Heat  &  Traction  Co.,   110 

Wis.  555,  §  243. 
Murray's   Lessee  et  al.   v.   Hoboken 

Land     &     Improvement    Co.,     IS 

How.  (59  U.  S.)  272,  §  297. 
Muskogee  Nat.  Teleg.  Co.  v.  Hall,  118 

Fed.  382,  §§  130,  391. 
Mutual   Fire   Ins.   Co.   v.   Hammond 

(Ky.),  51  S.  W.  151,  §  352,  354. 
Mutual  Union  Teleg.  Co.  v.  Chicago, 

16  Fed.  309,  §  131. 
Myers  v.  Moran,  99  N.  Y.  Supp.  269, 

§  326. 

N. 

Naglee  v.  Alexandria  &  F.  R.  Co.,  83 
Va.  707,  §  464. 

Napa  v.  Howland,  87  Cal.  84,  §  89. 

Napier  v.  Foster,  SO  Ala.  379,  §  239. 

Nashville,  C.  &  St.  L.  Ry.  v.  Ala- 
bama, 12S  U.  S.  96,  §§  369,  377, 
382. 

Nashville,  C.  &  St.  L.  R.  Co.  v.  Ed- 
wards, 91  Ga.  24,  §  464. 

Nashville,  City  of,  v.  Ward,  16  Lea 
(84Tenn.),  27,  §  11. 

Nassau  Elec.  R.  Co.,  In  re,  40  N.  Y. 
Supp.  334,  §  183. 


Nassau   Gas   Light   Co.    v.    City   of 

Brooklyn,   25   Hun   (N.   Y.),   567, 

§84. 
National    Bank    v.    Banck,    2    Abb. 

(U.  S.)  232,  §  67. 
National  Bank  v.  Commonwealth,  9 

Wall.  (76  U.  S.)  353,  §§  389,  439. 
National  Bank  v.  Kimball,  103  U.  S. 

732,  §  439. 
National  Bank  v.  Williams,  38  Fla. 

305,  §  270. 
National    Bank    of    New    York    v. 

Merchants'  National  Bank  of  West 

Virginia,  4  Thomp.  &  Cook  (N.  Y.), 

196,  §  67. 
National  Bank  of  the  Republic  v.  St. 

Joseph  (C.  C.),  51  Fed.  216,  §§  249, 

251. 
National  Cotton  Oil  Co.  v.  Texas,  197 

U.S.  115,  §  280. 
National  Foundry  &  Pipe  Works  v. 

Oconto  City  Water  Supply  Co.,  105 

Wis.  48,  §  478. 
National  Live  Stock  Commission  Co. 

v.  Taliaferro  (Okla.,  1908),  93  Pac. 

983,  §  269. 
National    Mut.    B.    &    L.    Assn.    v. 

Brahan,    193    U.    S.    635,    §§  306, 

353. 
Neagle,  In  re,  135  U.  S.  1,  §  416. 
Neal   v.   Delaware,    103   U.   S.   370, 

§  298. 
Nebraska  Teleg.  Co.  v.  Hall  County 

(Neb.),  106  N.  W.  471,  §448. 
Nebraska  Teleg.  Co.  v.  State,  55  Neb. 

627,  §  171. 
Nebraska  Teleph.  Co.  v.  City  of  Fre- 
mont (Neb.),  99  N.  W.  811,  §§  485, 

486. 
Nebraska  Teleph.  Co.  v.  Western  In- 
dependent Long  Distance  Teleph. 

Co.,  6S  Neb.  772,  §  140. 
Nebraska   ex   rel.   v.   The   Fremont, 

etc.,     Ry.     Co.,     22     Neb.     313, 

§416. 
Neely  v.  State,  4  Lea  (72  Tenn.),  316, 

§  20. 
Nelson  v.  Gorer,  34  Ala.  565,  §  271. 


TABLE    OF   CASKS    CITED 


lxxxiii 


Nelson  v.  Hey  wood  County,  87  Tenn. 

781,  §  305. 
Nelson  v.  Northern  Pacific  Ry.  Co., 

188  U.  S.  108,  §  129. 
Nephi   Plaster  &  Mfg.  Co.   v.  Juab 

County  (Utah),  93  Pac.  53,  §§  205, 

240. 
Xesmith    v.    Sheldon,    7    How.    (48 

U.S.)  812,  §§272,275. 
Nevada  School  Dist.  v.  Shoecraft,  88 

Cal.  372,  §  215. 
New  Albany  Water  Works  v.  Louis- 
ville Banking  Co.,   122  Led.   770, 

§470. 
Newark  v.  Mount  Pleasant  Cemetery 

Co.,  58  N.  J.  L.  168,  §  245. 
Newburyport  Water  Co.  v.  Newbury- 

port,  193  U.  S.  5G1,  §  177. 
Newcastle,  Town  of,  v.  Lake  Erie  & 

W.  R.  Co.,  155  Ind.  18,  §  345. 
New   Central   Coal   Co.    v.    George's 

Creek  Coal  &  Iron  Co.,  37  Md.  537, 

§215. 
New    England    Engineering    Co.    v. 

Oakwood  St.  Rd.  Co.  (C.  C),  75 

Fed.  162,  §  235. 
New  England  Teleph.  &  Teleg.  Co.  v. 

Boston   Terminal    Co.,    182   Mass. 

397,  §  33. 
New    Hampshire    Savings    Bank    v. 

Richey,  121  Fed.  956,  §  469. 
New   Haven  Steam  Sawmill   Co.   v. 

City  of  New  Haven,  72  Conn.  276, 

§  381: 
New  Jersey  v.  Yard,  95  U.  S.  104, 

§§  325,  328,  402,  459. 
New  Jersey  Steam  Navigation  Co.  v. 

Merchants'     Bank,     6     How.     (47 

U.  S.)  344,  §  79. 
New  Jersey  Zinc  Co.  v.  Sussex  County 

Board  of  Equalization,  70  N.  J.  L. 

ISC,  §  182. 
Newland  v.  Marsh,  1!)  111   376,  §  233. 
New  Memphis  Gas  Light  Co.  v.  City 

of  Memphis,  72  Fed.  952,   §§  390, 

406,  409. 
New  Mexico  v.  United  States  Trust 

Co.,  172  U.  S.  171,  §  454. 


New     Orleans     v.     Great    Southern 

Teleph.  &  Teleg.  Co.,  40  La.  Ann. 

41,  §§  241,  311,  313. 
New  Orleans  v.  Houston,  119  U.  S. 

265,  §  311. 
New   Orleans   v.   Morris,    105   U.   S. 

600,  §  326. 
New  Orleans  v.  New  Orleans  Water 

Works  Co.,   142  U.  S.  79,  §§  297, 

298,  303,  305,  310,  315. 
New    Orleans,    C.    &    L.   R.    Co.    v. 

New     Orleans,     157     U.    S.    219, 

§337. 
New  Orleans  City  &   L.  R.   Co.   v. 

New  Orleans,  143  U.  S.  192,  §§  359, 

423,  455. 
New  Orleans  City  Gas  Light  Co.  v. 

Board  of  Assessors,   31   La.   Ann. 

476,  §  423. 
New    Orleans,    City    of,    v.    Great 

Southern  Teleph.  &  Teleg.  Co.,  40 

La.  Ann.  41,  §  356. 
New  Orleans  Debenture  Redemption 

Co.  v.   Louisiana,   180  U.  S.   320, 

§§  11,  478,  486. 
New  Orleans,  etc  ,  Co.  v.   New  Or- 
leans, 164  U.  S.  471,  §  313. 
New  Orleans  Gas  Light  Co.  v.  Drain- 
age Commissioners,  197  U.  S.  453, 

§  295. 
New  Orleans  Gas  Light  Co.  v.  Drain- 
age   Commission,     111     La.     838, 

§  315. 
New  Orleans  Gas  Light  Co.  v.  Hart, 

40  La.  Ann.  474,  §  366. 
New   Orleans   Gas  Co.   v.   Louisiana 

Light  Co.,  115  U.  S.  650,  §§  16,  82, 

120,  131,  149,  185,  311,  313,  335, 

388,  412. 
New    Orleans,    J.    &    G.   N.   R.   Co. 

v.  Harris,  5  Cushm.  (27  Miss.)  517, 

§311. 
New  Orleans,  Mobile  &  T.  R.  Co.  v. 

Southern    &    Atl.    Teleg.    Co.,    53 

All.  211,  §  241. 
New  Orleans,  Spanish   Fort  &  Lake 

Rd.  Co.  v.  Delamore,  114  U.  S.  501, 

§§  11,  14,  471,  475,  478. 


lxxxiv 


TABLE    OF   CASES    CITED 


New  Orleans  Water  Works  Co.   v. 

Louisiana,  185  U.  S.  336,  §§  486, 

488. 
New   Orleans   Water  Works  Co.   v. 

Louisiana    Sugar    Ref.    Co.,     125 

U.  S.  18,  §§  279,  306. 
New   Orleans   Water  Works  Co.   v. 

New  Orleans,  164  U.  S.  471,  §  185. 
New  Orleans  Water  Works  v.  Rivers, 

115  U.  S.  675,  §§  161,  313. 
Newport  v.  Masonic  Temple  Assoc., 

20  Ky.  L.  Rep.  266,  §  215. 
Newport  v.  Taylor,   16  B.  Mon.  (55 

Ky.)  699,  §  396. 
Newport   Ilium.  Co.  v.  Tax   Asses- 
sors, Newport,  19  R.  I.  632,  §  356. 
Newport  News  &  O.  P.  Co.  v.  City  of 

Newport  News  (Va.),  4  Va.  Super. 

Ct.  Rep.  31,  §  359. 
Newport  News  &  O.  P.  Ry.  &  Elec- 
tric Co.  v.  Lake  (Va.),  54,  §  111. 
New  Union  Teleph.  Co.  v.  Marsh,  89 

N.  Y.  Supp.  79,  §  198. 
New  York  v.  Interurban  Street  Rail- 
way   Co.,    86    N.   Y.   Supp.   673, 

§  387. 
New  York  v.  Miller,  202  U.  S.  584, 

§420. 
New  York  v.  Miln,  11  Pet.  (36  U.  S.) 

102,  §§  149,  295,  366. 
New  York  v.  Roberts,  171  U.  S.  658, 

§§  352,355,425,426. 
New  York  v.  Squires,  145  U.  S.  175, 

§§  294,  335,  366. 
New  York  v.  Starin,    106   N.   Y.    1, 

§26. 
New  York  &  L.  I.  R.  Co.  v.  O'Brien, 

106  N.  Y.  Supp.  909,  §  111. 
New  York  &  L.  I.  R.  Co.  v.  O'Breen, 

100  N.  Y.  Supp.  316,  §  379. 
New  York  &  N.  E.  R.  Co.  v.  Bristol, 

151   U.   S.   556,    §§  276,   294,   295, 

319,  321,  331,  366,  381. 
New  York  &  Oswego  Mid.  R.  Co.  v. 

Van  Home,  57  N.  Y.  473,  §  233. 
New  York  Cement   Co.   v.   Consoli- 
dated  Rosendale  Cement  Co.,   76 

N.  Y.  Supp.  469,  §  72. 


New  York  Central  &  Hudson  River 

Rd.  Co.,  In  re,  v.  Metropolitan  Gas 

Light  Co.,  63  N.  Y.  326,  §  82. 
New  York  Central  &  Hudson  River 

Rd.  Co.  v.  Miller,  202  U.  S.  584, 

§§  272,  277,  425,  440,  446. 
New  York  City  v.  Consolidated  Gas 

Co.     See  "Appendix  C,"  herein. 
New  York  City  v.   Harlem  Bridge, 

M.  &  F.  Ry.  Co.,  91  Supp.  557, 

§337. 
New  York  City  v.  Interurban  St.  Ry. 

Co.,  86  N.  Y.  Supp.  673,  §  167. 
New  York  Dist.  Ry.  Co.,  In  re,  107 

N.  Y.  42,  §  111. 
New  York,  etc.,  Rd.  Co.  v.  Winans, 

17  How.  (58  U.  S.)  30,  §  464. 
New  York,  Lackawanna  &  Western 

Ry.  Co.  v.  Roll,  66  N.  Y.  Supp. 

748,  §§  7,  14. 
New  York,  L.  E.   &  W.  R.  Co.  v. 

Pennsylvania,  158  U.  S.  431,  §§  17, 

420,  426. 
New  York,  New  Haven  &  Hartford 

Ry.   Co.    v.   Interstate    Commerce 

Commission,  200  U.  S.  361,  §§  402, 

403. 
New  York,  New  Haven  &  Hartford 

Ry.  Co.  v.  New  York,   165  U.  S. 

628,  §§  366,  369,  385. 
New  York,  New  Haven  &  Hartford 

Ry.   Co.   v.   Wheeler   (Conn.),   45 

Atl.  14,  §  381. 
New  York  Sanitary  Utilization  Co. 

v.   Department  of   Public    Health 

of    N.   Y.,    67   N.   Y.   Supp.  324, 

§  335. 
New  York  Steam  Co.  v.  Foundation 

Co.,  108  N.  Y.  Supp.  84,  §  345. 
Niagara   County    v.    People,    7    Hill 

(N.  Y.),  504,  §  51. 
Niagara,  L.  &  O.  Power  Co.,  In  re, 

97  N.  Y.  Supp.  853,  §  76. 
Nicholson    v.     Thompson,     5     Rob. 

(La.)  367,  §  204. 
Nicklaus  v.  Conkling,  118  Ind.  289, 

§287. 
Nicol  v.  Ames,  173  U.  S.  509,  §  231. 


TABLE    OF   CASES    CITED 


lxxxv 


Nicolet  National  Bank  v.  City  Bank, 

38  Minn.  85,  §  269. 
Noble  v.  Mitchell,  100  Ala.  519,  §  233. 
Noblesville,   City  of,   v.    Noblesville 

Gas  &  Improvement  Co.,  157  Ind. 

162,  §  392. 
Noecker  v.   Noecker,   66   Kan.   347, 

§  236. 
Noerr    v.    Schmidt,    151    Ind.    579, 

§265. 
Norfolk  v.  Pennsylvania,   136  U.  S. 

114,  §§  67,  359. 
Norfolk  &  Western  Ry.  Co.  v.  Board 

of  Public  Works,  97  Va.  23,  §  440. 
Norfolk  &  Western  Ry.  Co.  v.  Lynch- 
burg Cotton  Mill  Co.,  106  Va.  376, 

§  255. 
Norfolk  &  Western  Ry.  Co.  v.  Pen- 
dleton, 156  U.  S.  667,  §§  412,  479, 

480,  481. 
Norfolk  &  Western  Ry.  Co.  v.  Schein, 

106  Va.  382,  §  255. 
Norman  v.  Boaz,  85  Ky.  557,  §  234. 
Norris    v.    Boston.      See    Passenger 

Cases. 
Norris  v.  Farmers'  &  Teamsters'  Co., 

6  Cal.  590,  §§  15,  80. 
Norris  v.  State,  25  Ohio  St.  217,  §  64. 
North   Baltimore   Pass.   Ry.   Co.   v. 

North  Ave.  Ry.  Co.,  75  Md.  233, 

§257. 
North  Chicago  Electric  Ry.  Co.  v. 

Penser,  190  111.  67,  §  111. 
Northern    Bank  v.  Stone  (C.  C),  88 

Fed.  413,  §  284. 
Northern  Bank  of  Kentucky  v.  Stone, 

88  Fed.  413,  §  330. 
Northern  Central  Ry.  Co.  v.  Holland, 

117  Pa.  613,  §  317. 
Northern  Central  Ry.  Co.  v.  Mary- 
land, 187  U.  S.  258, '§§317,  483, 

484. 
Northern  Pacific  Ry.  Co.  v.  Duluth, 

208  U.  S.  583,  §  138. 
Northern  Pacific  Ry.  Co.  v.  Ely,  197 

U.  8.  1.  S  129. 
Northern  Pacific  Ry.  Co.  v.  Roberts, 

42  Fed.  734,  §  102. 


Northern  Pacific  Ry.  Co.  v.  Sanders, 

47  Fed.  604,  §  262. 

Northern  Pacific  Ry.  Co.  v.  Soder- 
berg,  188  U.  S.  526,  §§  129,  256. 

Northern  Pacific  Ry.  Co.  v.  Town- 
send,  190  U.  S.  267,  §  129. 

Northern  Pacific  Ry.  Co.  v.  Traill  Ry. 
Co.,  115  U.  S.  600,  §  322. 

Northern  Ry.  Co.  v.  Snohomish 
County  (Wash.,  1908),  93  Pac.  924, 
§  262. 

North  Hudson  Co.  Ry.  Co.  v.  May, 

48  N.  J.  L.  401,  §  51. 

North  Jersey  St.  Ry.  Co.  v.  Jersey 
City,  73  N.  J.  L.  481,  63  Atl.  833, 
§§  356,  424. 

North  Missouri  Ry.  Co.  v.  Maguire, 
20  Wall.  (87  U.  S.)  46,  §§  412,  455. 

North  Point  Consol.  Irrig.  Co.  v. 
Utah  &  S.  S.  Canal  Co.,  16  Utah, 
246,  §  42. 

North  River  Steamboat  Co.  v.  Liv- 
ingston, 3  Cow.  (N.  Y.)  713,  §  209. 

Northumberland  County  v.  Zimmer- 
man, 75  Pa.  26,  §  366. 

Northumberland,  Duke  of,  v.  Hough- 
ton, L.  R.  5  Ex.  127,  §  10. 

Northwestern  Fertilizer  Co.  v.  Hyde 
Park,  Fed.  Cas.  No.  10,336,  §  66. 

Northwestern  Improvement  &  B. 
Co.  v.  O'Brien,  75  Minn.  335,  §  90. 

Northwestern  Mut.  Life  Ins.  Co.  v. 
Lewis  &  Clarke  County,  28  Mont. 
484,  §§13,  436. 

Northwestern  Teleph.  Exchange  Co. 
v.  City  of  St.  Charles  (C.  C),  154 
Fed.  386,  §  187. 

Northwestern  Teleph.  Exchange  Co. 
v.  Minneapolis,  81  Minn.  140,  §§  33, 
238,  314. 

Northwestern  Warehouse  Co.  v. 
Oregon  R.  &  Nav.  Co.,  32  Was!. 
218,  §  227. 

Norton  v.  Bradham,  21  S.  C.  '-n~>. 
§§  205,  208. 

Norton  v.  City  of  St.  Louis,  97  Mo. 
537,  §  3S7. 

Norton  v.  IVck,  3  Wis.  711,  §  56. 


lxxxvi 


TABLE    OF   CASES    CITED 


Norton  v.  Shelby  County,  118  U.  S. 

425,  §§  204,  272,  274,  288. 
Norwich  Gas  Light  Co.  v.   Norwich 

City  Gas  Co.,  25  Conn.   19,   §§  1, 

22,  26,  133. 
Nye  v.  Storer,  168  Mass.  53,  §  472. 

O. 

Oakland    v.    Oakland    Water   Front 

Co.,  118  Cal.  160,  §  238. 
Oakland  Paving  Co.  v.  Barstow,  79 

Cal.  45,  §  305. 
Oakland  R.  Co.  v.  Oakland,  Brook- 
lyn &  Fruit  Vale  Rd.  Co.,  45  Cal. 

365,  §  26. 
Oak  Ridge  Coal  Co.  v.  Rogers,  108 

Pa.  147,  §§  52,  53. 
Oates  v.   National  Bank,   100  U.  S. 

239,  §§  238,  239. 
O'Brien    v.    Krenz,    36    Minn.    136, 

§234. 
Ochiltree  v.  Railroad  Co.,   21  Wall. 

(88  U.  S.)  249,  §  334. 
O'Connor  v.  Gertgens,  85  Minn.  481, 

§  262. 
Odd  Fellows  Cemetery  Assn.  v.  San 

Francisco,  140  Cal.  226,  §  136. 
O'Donnell  v.  City  of  Syracuse,   184 

N.  Y.  1,  §  56. 
O'Donovan,   Ex  parte,  24  Fla.  281, 

§  265. 
Offield  v.  New  York,  N.  H.  &  H.  Ry. 

Co.,  203  U.  S.  372,  §  332. 
Ogden  v.  Bear  Lake  &  River  Water 

Works  Irrig.    Co.,    16    Utah,   440, 

§§  55,  343. 
Ogden  v.   Saunders,   12  Wheat.    (25 

U.  S.)  738,  §  205. 
O'Hara  v.   National  Biscuit  Co.,   69 

N.  J.  L.  198,  §§  244,  247. 
Ohio    v.   Thomas,    173    U.   S.  276, 

§  416. 
Ohio  &  Miss.  Rd.  Co.  v.  Wheeler,  1 

Black  (66  U.  S.),   286,   §§  51,  67, 

351. 
Ohio  Life  Ins.  &  Trust  Co.  v.  Debolt, 

16  How.   (57   U.  S.)   416,   §§  254, 

306,  412,  455. 


Ohio   Life   Ins.    Co.    v.    Detroit,    16 

How.  (57  U.  S.)  416,  §  453. 
Ohio  Oil  Co.  v.  Indiana  (No.  1),  177 

U.  S.  190,  §  388. 
Ohio    Postal    Teleg.    Cable    Co.    v. 

Board  of  Commissioners,  137  Fed. 

947,  §§  131,  379. 
Ohio  R.  v.  Weber,  96  111.  443,  §  425. 
Ohio  State  v.  Toledo  Ry.  &  Terminal 

Co.,  28  Ohio  Cir.  Ct.  R.  321,  §  63. 
Olcott  v.  Supervisors,   16  Wall.   (83 

U.  S.)  678,  §§  63,  98,  107,  306. 
Old  Colony  Trust  Co.  v.  Atlanta,  83 

Fed.  39,  §  390. 
Old    Colony    Trust    Co.    v.    City    of 

Wichita,  123  Fed.  762,  §§311,  313. 
Old  Dominion  Bldg.  &  Loan  Assoc. 

v.  Sohn,  54  W.  Va.   101,   §§  238, 

239. 
Old  Dominion  Steamship  Co.  v.  The 

Hamilton,  207  U.  S.  398,  §  137. 
Olden   v.    Hallet,    5    N.   J.    L.    466, 

§  231. 
Oleson    v.    Wilson,    20    Mont.    544, 

§  269. 
Oliff  v.  City  of  Shreveport,  52  La. 

Ann.  1203,  §  107. 
Olin  v.  Denver  &  Rio  Grande  R.  Co., 

25  Colo.  177,  §  269. 
Oliphant    Sewage    Drainage    Co.    v. 

Borough    of    Oliphant    (Pa.    Com. 

PL),  5  Lack.  Leg.  N.  346,  §  486. 
Oliver  v.   Liverpool  &  London  Life 

&  Fire  Ins.  Co.,  100  Mass.  521,  §  52, 

357. 
Oliver  v.  Worcester,  102  Mass.  489, 

§62. 
Omaha   &   G.   Smelting   &   Refining 

Co.  v.  Tabor,  13  Colo.  41,  §  269. 
Omaha  Horse  R.  Co.  v.  Cable  Tram- 
way Co.  (C.  O),  30  Fed.  324,  §§  23, 

254. 
Omaha    Real    Estate    &    T.    Co.    v. 

Kragscon,  47  Neb.  592,  §  282. 
Omaha  Water  Co.  v.  City  of  Omaha, 

147  Fed. 1,  §§  319,  394. 
O'Neill  v.  Hestonville,  M.  D.  F.  Pass. 

Ry.  Co.,  9  Pa.  Dist.  R.  2,  §  467. 


TABLE    OF   CASES    CITED 


lxxxvii 


O'Neill  v.  Insurance  Co.,  166  Pa.  72, 

§163. 
O'Neill  v.  Vermont,  144  U.  S.  323, 

§370. 
O'Phinney    v.    Sheppard    &    Enoch 

Pratt  Hospital,  88  Md.  633,  §§  307, 

317. 
Opinion  of  Justices,  150  Mass.  592, 

§  390. 
Opinion  of  Justices,  In  re  (N.  H.),  6S 

Atl.  873,  §  238. 
Opinions  of  the  Justices,  102  Me.  52, 

§423. 
Oregon  &  California  Rd.  Co.  v.  Uni- 
ted States  (No.  3),  190  U.  S.  186, 

§129. 
Oregon  Railroad  Commrs.  v.  Oregon 

R.  &  Nav.  Co.,  17  Ore.  65,  §§  401, 

406. 
Oregon  Railway  &  Navigation  Co.  v. 

Oregonian  Ry.  Co.,   130  U.  S.   1, 

§§  23,  132,  254,  465,  466,  467,  473. 
Orient  Ins.  Co.  v.  Daggs,  172  U.  S. 

557,  §§  67,  296. 
Orr  v.  Quimby,  54  N.  H.  590,  §  231. 
Ortiz  v.  Hanson  (Colo.),  83  Pac.  964, 

§63. 
Orvil    Township    v.    Woodcliff,     61 

N.  J.  L.  107,  §  249. 
Osborn   v.    United    States   Bank,    9 

Wheat.  (22  U.  S.)  738,  §§  126,  205, 

416,  439. 
Osborne  v.  Florida,   164  U.  S.  650, 

§  358. 
Osborne    v.    Mobile,    16    Wall.    (83 

U.  S.)  479,  §§  358,  404. 
Osborne  v.  San  Diego  Land  &  Town 

Co.,  178  U.S.  22,  §  393. 
Osburn  v.  Staley,  5  W.  Va.  85,  §  231. 
Oshkosh  Water  Works  Co.  v.   Osh- 

kosh,  187  U.S.  137,  §  301. 
Otis  v.  Parker,  187  U.  S.  606,  §  300. 
Otis  Co.   v.    Ludlow  Mfg.  Co.,   201 

U.  S.  140,  §  L".^. 
Otis  Co.   v.    Ludlow  Mfg.   Co.,    186 

Mass.  89,  J  298. 
Otis  Co.  v.  Warr,  8  Cray  (Mass.),  509, 

§65. 


Otoe  County  v.  Baldwin,  111  U.  S.  1, 

§343. 
Ouachita  Packet  Co.  v.  Aiken,   121 

U.  S.  444,  §  17. 
Overstreet  v.  Citizens'  Bank,  12  Okla. 

3S3,  §  481. 
Owens  v.  Yazoo  &  Miss.  Valley  R. 

Co.,  74  Miss.  821,  §  282. 
Owensboro     v.     Owensboro     Water 

Works  Co.,  191  U.  S.  358,  §§  393, 

395. 
Owensboro  National  Bank  v.  Owens- 
boro, 173  U.  S.  664,  §  439. 
Owensboro  Water  Works  Co.  v.  City 

of    Owensboro,    24    Ky.    L.    Rep. 

2530,  §  434. 
Owings  v.  Speed,  5  Wheat.  (18  U.  S.) 

420,  §  301. 
Oxan  Lumber  Co.  v.  Union  County 

National    Bank    of    Liberty,    207 

U.  S.  251,  §§  137,  300,  365. 

P. 

Pabst  Brewing  Co.  v.  Crenshaw,  198 

U.  S.  17,  §  356. 
Pacific  Express  Co.  v.  Cornell  (Neb.), 

81  N.  W.  377,  §401. 
Pacific  Express  Co.   v.   Seibert,   142 

U.  S.  339,  §§  79,  359,  421. 
Pacific  Express  Co.  v.  Seibert  (C.  O), 

44  Fed.  310,  §  234. 
Pacific  Nat.  Bank  v.  Pierce  County, 

20  Wash.  675,  §  421. 
Pacific  Postal  Teleg.  Co.  v.  Western 

Union    Teleg.   Co.,    50    Fed.   493, 

§469. 
Pacific  Railway  v.  Maguire,  20  Wall. 

(87  U.  S.)  36,  §§  305,  454. 
Packet  Co.  v.  Keokuk,  95  U.  S.  80, 

§234. 
Packet  t  v.  Ducktown  Sulphur  C.  &  I. 

Co.,  97  Tenn.  690,  §  270. 
Paddleford  v.  Savannah,  14  Ga.  438, 

§  205. 
Page  v.  Allen,  58  Pa.  338,  §  289. 
Page  v.  Young,  100  Mass.  313,  §  221. 
Paige   v.   Schenectady    I!.   Co.,    178 

\.  Y.  102,  §§  1  1,  :;:;.  97,  111. 


lxxxviii 


TABLE    OF      CASES    CITED 


Palatine  Ins.  Co.,  Ltd.,  v.  Northern 

Pac.  Ry.  Co.  (Mont.,  1906),  85  Pac. 

1032,  §  282. 
Palatine,    Town    of,    v.    Canajoharie 

Water  Supply  Co.,  86  N.  Y.  Supp. 

412,  §  200. 
Palestine  Water  &  P.  Co.  v.  Palestine, 

91  Tex.  540,  §  490. 
Palmyra  Township,  Inhabitants  of,  v. 

Pennsylvania  R.  Co.  (N.  J.  Ch.),  50 

Atl.  369,  §  315. 
Parfitt  v.  Ferguson,  159  N.  Y.  Ill, 

§245. 
Park  v.  Candler,  113  Ga.  647,  §  231. 
Park  Bank  v.  Remsen,  158  U.  S.  337, 

§§  252,  280. 
Parker    v.    Moore,     115    Fed.    799, 

§272. 
Parker  v.  Otis,  130  Cal.  322,  §  300. 
Parker  &  Washington  Co.  v.  Kansas 

City    (Kan.,    1906),    85   Pac.    781, 

§  282. 
Parks  v.  State  ex  rel.  Owens,  100  Ala. 

634,  §  21. 
Park  Tax  Cases   (Mayor  &  City  of 

Baltimore    v.    Baltimore,    Catons- 

ville   &    Ellicott's   Mills   Pass.    R. 

Co.),  84  Md.  1,  §§  111,  433. 
Passenger  Cases,  7  How.  (48  U.  S.) 

283,  §§  205,  370. 
Patapsco    Guano    Co.    v.    Board    of 

Agriculture,  171  U.  S.  345,  §§  373, 

404. 
Patapsco  Guano  Co.  v.  North  Caro- 
lina, 171  U.  S.  345,  §  373. 
Paterson  P.  &  Gas  Electric  Co.  v. 

State   Board   of   Assessors    (N.   J. 

Sup.),  54  Atl.  246,  §  435. 
Patterson  v.  Bark  Eudora,  190  U.  S. 

169,  §  244. 
Patterson  v.  Kentucky,  97  U.  S.  501, 

§  366. 
Patterson  v.  Marine  Nat.  Bank,  130 

Pa.  419,  §  69. 
Patterson   v.    Winn,    11    Wheat.  (24 

U.  S.)  380,  §  265. 
Patterson  v.  Wollman,  5  N.  Dak.  608, 

§§  4,  15,  22,  24,  144,  194. 


Paul  v.  Virginia,  8  Wall.  (75  U.  S.) 

168,  §§  67,  87,  291,  357. 
Payne  v.  Baldwin,  3  Smedes  &  M.  (11 

Miss.)  661,  §  311. 
Payne  v.  Goldbach,  14  Ind.  App.  100, 

§38. 
Paynter  v.   Miller,   25  Ky.   L.   Rep. 

2222,  §  466. 
Peabody  &  Co.  v.  Pratt,  121  Fed.  772, 

§  421. 
Peacock  &  Co.  v.  Pratt,  121  Fed.  772, 

§456. 
Pearsall  v.   Great  Northern  R.  Co., 

161  U.  S.  646,  §§  23,  38,  167,  254, 

308,311,327,334,458. 
Pecot  v.  Police  Jury,  41  La.  Ann.  707, 

§  215. 
Peifly  v.  Mountain  Water  Supply  Co., 

214  Pa.  340,  §  63. 
Peik  v.  Chicago  &  Northwestern  Ry. 

Co.,    94    U.    S.    164    (see   Granger 

Cases),  §§  167,  381,  391,  400,  404, 

412. 
Peirce  v.  Van  Dusen,  78  Fed.  693, 

§  369. 
Pelham,    Town    of,    v.    The    B.    Y. 

Woolsey,  14  Fed.  418,  §  17. 
Pell's  Estate,  Matter  of,  171  N.  Y.  48, 

§  298. 
Pelzer  v.  Campbell,  15  S.  Car.  581, 

§233. 
Pembina,  C.  S.  M.  &  M.  Co.  v.  Penn- 
sylvania, 125  U.  S.  181,  §§  50,  66, 

67,  352. 
Pennoyer  v.  McConnaughy,  140  U.  S. 

1,  §§  262,  416. 
Pennsylvania  v.  Wheeling  &  Belmont 

Bridge  Co.,  18  How.  (59  U.  S.)  421, 

§128. 
Pennsylvania  v.  Wheeling  &  Belmont 

Bridge  Co.,  13  How.  (54  U.  S.)  518, 

§128. 
Pennsylvania  Co.  v.  Dunlap,  112  Ind. 

93,  §  283. 
Pennsylvania  Coal  Co.  v.  Delaware 

&     Hudson    Canal    Co.,    3    Abb. 

Dec.      (N.     Y.     Ct.    App.)     704, 

§17. 


TABLE    OF    CASES    CITED 


lxxxix 


Pennsylvania  College  Cases,  13  Wall. 

(80  U.  S.)  190,  §  331. 
Pennsylvania  Ry.  Co.  v.  Bowers,  124 

Pa.  183,  §§  25,  311. 
Pennsylvania  Ry.  Co.  v.  Canal  Com- 
missioners, 21  Pa.  9,  §§  23,  254. 
Pennsylvania  Ry.  Co.  v.  Duncan,  111 

Pa.  352,  §  311. 
Pennsylvania  Ry.  Co.  v.  Hughes,  191 

U.  S.  477,  §§  369,  386. 
Pennsylvania  Ry.  Co.  v.  Knight,  192 

U.  S.  21,  §  427. 
Pennsylvania  Ry.  Co.  v.  Miller,  132 

U.  S.  75,  §  327. 
Pennsylvania  Ry.  Co.  v.  Philadelphia 

Belt  Line  Rd.  Co.,  10  Pa.  Co.  Ct. 

Rep.  625,  §§  3,  14. 
Pennsylvania  Ry.  Co.  v.  Riblet,  66 

Pa.  164,  §  231. 
Pennsylvania  Ry.  Co.  v.  Sly,  68  Pa. 

205,  §  17. 
Pennsylvania  Ry.  Co.  v.  St.  Louis,  A. 

&  T.  H.  R.  R.  Co.,  118  U.  S.  290, 

§§  67,  472. 
Pennsylvania,  State  of,  v.  Wheeling 

&  Belmont  Bridge  Co.,  18  How.  (59 

U.  S.)  421,  §  152. 
Penobscot  Boom  Corp.  v.  Lamson,  16 

Me.  224,  §§  57,61. 
Penrose  v.   Chaffraix,    106   La.   250, 

§455. 
Pensacola  Gas  Co.  v.  Pensacola,  33 

Fla.  322,  §  255. 
Pensacola    Teleg.    Co.     v.    Western 

Union  Teleg.  Co.,  96  U.  S.  1,  §  120. 
People.    See  Attorney  General;  Com- 
monwealth; State. 
People  v.  Adirondack  Ry.  Co.,   160 

N.  Y.  225,  §  332. 
People  v.   Albany  &  V.  R.  Co.,   37 

Barb.  (N.  Y.)  216,  §311. 
People    (Bolton)    v.    Albertson,    55 

N.  Y.  50,  §  230. 
People  v.  American  Bell  Telcph.  Co., 

117  N.Y.  241,  §  425. 
People  v.  Angle.  109  N.  Y.  564,  §  224. 
People  v.  Assessors  of  Watertown,  1 
Hill  (N.  Y.),  616,  §  51. 


People  v.  Atlantic  R.  Co.,  125  N.  Y. 

513,  §§  489,  491. 
People  v.  Barber,  48  Hun  (N.  Y.), 

198,  §  21. 
People  (ex  rel.  Manhattan  Ry.  Co.)  v. 

Barker,  152  N.  Y.  417,  §§  425,  446. 
People  (ex  rel.  Manhattan  Ry.  Co.)  v. 

Barker,  146  N.  Y.  304,  §§  425,  446. 
People  v.  Barker,  48  N.  Y.  70,  §  424. 
People  v.  Barker,  83  N.  Y.  Supp.  33, 

§440. 
People   (Dean)   v.  Board  of  County 

Commissioners  of  Grand  County,  6 

Colo.  202,  §  215. 
People  v.  Board  of  Railroad  Commis- 
sioners, 175  N.  Y.  516,  §  184. 
People  v.  Board  of  Railroad  Commis- 
sioners, 81  N.  Y.  Supp.  26,  §  167. 
People  (Kimball)  v.  Boston  &  Albany 

R.  Co.,  70  N.  Y.  569,  §§  324,  400. 
People  v.  Budd,  117  N.  Y.  1,  §§  15, 

74,  80,  113,  122,  400. 
People  (Commissioners  of)  v.  Buffalo 

County,  4  Neb.  150,  §  15. 
People    (Edison    Elec.    L.    Co.)     v. 

Campbell,   88   Hun   (N.   Y.),    527, 

§77. 
People  (ex  rel.  Electric  Light  Co.)  v. 

Campbell,  138  N.  Y.  543,  §  440. 
People  (Western  Elec.  Co.)  v.  Camp- 
bell, 145  N.  Y.  587,  §  77. 
People  v.  Central  Illinois  Tel.  Co.,  192 

111.  307,  §  33. 
People  v.  Central  Union  Tel.  Co.,  192 

111.  307,  §  311. 
People  (Davis)  v.  Chicago,   124  111. 

636,  §  455. 
People  (Keeney)  v.  Chicago,  152  111. 

.".Hi,  §  238. 
People  v.  Chicago  Gas  Trust  Co.,  130 

111.  268,  §  41. 
People  (Mcllhaney)  v.  Chicago  Live 

Stock  Exchange,  170  111.  556,  §  1st', 
People  v.  Chicago  Telephone  Co.,  220 

III.  238,  §§  47,  486,  488. 
People    (Koehersperger)    v.    Chicago 

Theological  Seminary,  174  111.  177, 

§§  412,  45."). 


xc 


TABLE    OF   CASES    CITED 


People  v.  City  of  Buffalo,  84  N.  Y 

Supp.  434,  §  262. 
People  v.  Coleman,  4  Cal.  46,  §  223. 
People  v.  Coleman,   133  N.  Y.  279, 

§52. 
People  (ex  rel.  Union  Trust  Co.)  v. 

Coleman,  126  N.  Y.  433,  §  425. 
People  (ex  rel.  Edison  Illuminating 

Co.)  v.  Commissioner  of  Taxes,  58 

Misc.  249,  §  444. 
People  v.   Commissioners,   48   Barb. 

(N.  Y.)  157,  §  404. 
People  v.  Consolidated  Teleg.  &  Elec- 
trical Subway  Co.,  96  N.  Y.  Supp. 

609,  §  191. 
People  v.  Cooper,  139  111.  461,  §  11. 
People  (ex  rel.  Woodhaven  Gas  Co.) 

v.  Deeham,  153  N.  Y.  528,  §§  16, 

23,  26,  48,  185,  254. 
People  v.  Detroit  Citizens'  Ry.  Co., 

116  Mich.  132,  §  387. 
People   v.    Detroit    United   Railway 

(Mich.),    10    Det.    L.    News,    648, 

§  387. 
People  v.  Duncan,  41  Cal.  507,  §  26. 
People  (ex  rel.  Cairo  &  St.  Louis  Ry. 

Co.)  v.  Dupuyt,  71  111.  651,  §  51. 
People  v.  Ellison,   101   N.  Y.  Supp. 

441,  444,  §§  191,  379,  491. 
People   v.    Equitable   Trust   Co.,   96 

N.  Y.  387,  §§  428,  446. 
People  v.  Fancher,  50  N.  Y.  288,  §  205. 
People  v.  Flags,  46  N.  Y.  401,  §  289. 
People  v.  Fleming,  10  Colo.  522,  552 

553,  §§  137,  210,  289. 
People  v.  Folks,  85  N.  Y.  Supp.  1100, 

§81. 
People  (ex  rel.  Kunze)  v.  Fort  Wayne 

&  Elmwood  Ry.  Co.,  92  Mich.  522, 

§§  36,  47. 
People  v.  Geneva,  W.  S.  F.  &  C.  L. 

Traction  Co.,  98  N.  Y.  Supp.  719, 

§§  337,  387. 
People  v.  Gies,  25  Mich.  83,  §  216. 
People  v.  Gilson,  109  N.  Y.  389,  §  131. 
People  (ex  rel.  Union  Sulphur  Co.)  v. 

Glynn,  125  App.  Div.  328,  §§  427, 

441. 


People  v.   Grand   Rapids  &   W.   PI. 

Road  Co.,  67  Mich.  5,  §  282. 
People     (Byars)     v.     Grand     River 

Bridge  Co.    (Colo.),   21   Pac.  898, 

§486. 
People  v.  Grand  Trunk  Ry.  Co.,  232 

111.  292,  §§  147,  200. 
People   (ex   rel.   Harlin   &   Hollings- 

worth  Co.)  v.  Campbell,  139  N.  Y. 

68,  §  428. 
People   (Standerfer)   v.  Hamill,   125 

111.  600,  §  247. 
People  v.  Hanrahan,  75  Mich.  611, 

§  282. 
People  v.  Harris,  203  111.  272,  §  345. 
People   (ex   rel.   Iron  S.   M.  Co.)   v. 

Henderson,  12  Colo.  369,  §  448. 
People  v.  Holtz,  92  111.  426,  §§  1,  10, 

21,  122. 
People  v.  Home  Ins.  Co.,  92  N.  Y. 

328,  §§  8,  12,  39. 
People  v.  Horn  Silver  Mining  Co.,  105 

N.  Y.  76,  §§  425,  446. 
People  (Mooney)  v.  Hutchinson,  172 

111.  486,  §§  217,  218. 
People  v.  Imlay,  20  Barb.  (N.  Y.)  68, 

§67. 
People  (ex  rel.  Howell)  v.  Jessup,  160 

N.  Y.  249,  §  48. 
People  (Terry)   v.  Keller,  54   N.  Y. 

Supp.  1011,  §  236. 
People  v.  Kelly,  76  N.  Y.  475,  §  127. 
People  (ex  rel.  Fourteenth  St.  Realty 

Co.)  v.  Kelsey,  97  N.  Y.  Supp.  197, 

§  428. 
People    (ex   rel.    Hubert   Apartment 

Assoc.)  v.  Kelsey,  96  N.  Y.  Supp. 

745,  §§  428,  446. 
People  ex  rel.  Metropolitan  Security 

Co.)  v.  Kelsey,  91  N.  Y.  Supp.  711, 

§  446. 
People  (ex  rel.  Spencerian  Pen  Co.)  v. 

Kelsey,  93  N.  Y.  Supp.  971,  §  466. 
People  (ex  rel.  Steinway  &  Sons)  v. 

Kelsey,  96  N.  Y.  Supp.  42,  §§  441, 

446. 
People  v.  King,  110  N.  Y.  418,  §§  298, 

366. 


TABLE    OF   CASES    CITED 


XC1 


People  v.  Knickerbocker  Ice  Co.,  99 

N.  Y.  181,  §  445. 
People  v.  Knight,  174  N.  Y.  475,  §§  8, 

424,  425,  431. 

People     (ex    rel.    Digester    Co.)     v. 

Knight,  73  N.  Y.  Supp.  743,  §  445. 
People  (ex  rel.  Lackawanna  Transp. 

Co.)  v.  Knight,  77  N.  Y.  Supp.  398, 

§§  425,  441,  442,  446. 
People  (ex  rel.  X.  Y.  Central  &  H.  R. 

R.  Co.)  v.  Knight,  173  X.  Y.  255, 

§  446. 
People  (ex  rel.  Paving  Co.)  v.  Knight, 

90  X.  Y.  Supp.  537,  §  445. 
People  (ex  rel.  Pennsylvania  Ry.  Co.) 

v.  Knight,   73  X.  Y.  Supp.   790, 

§427. 
People  (Xeil)  v.  Knopf,  171  111.  191, 

§  262. 
People   (ex  rel.   Poughkeepsie  Trust 

Co.)  v.  Lane,  83  X.*  Y.  Supp.  606, 

§437. 
People    v.    Leonard,    73    Cal.    230, 

§204. 
People  v.   Linda  Vista   Irrig.   Dist., 

128  Cal.  477,  §  88. 
People  v.  Littleton,  96  X.  Y.  Supp. 

444,  §  379. 
People  v.  Loew,  44  X.  Y.  Supp.  4o, 

§§  10,  18,  87. 
People    (Gage)    v.    Lohnas,    54    Hun 

(X.  Y.),  604,  §  324. 
People   v.    Michigan   Cent.   Rd.   Co. 

(Mich.,    1906),    108    X.    W.    772, 

§  283. 
People  v.  Miller,  86  X.  Y.  Supp.  420, 

rev'd  179  X.  Y.  526,  §§  8,  12.  39, 

428,  429,  446. 
People  v.  Miller,  83  X.  Y.  Supp.  184, 

rev'd  177  X.  Y.  51,  §§  8,  12,  39, 

425,  437. 

People  (ex  rel.  Bank  of  Savings)  v. 

Miller,  177  X.  Y.  461,  §  446. 
People  (ex  rel.  Cohn  &  Co.)  v.  Miller, 

ISO  X.  V.  Hi,  §  449. 
People  (ex  rel.  Connecting  Terminal 

R.  Co.)  v.  Miller,   178  X.   Y.    I'M. 

§427. 


People  (ex  rel.  Continental  Ins.  Co.) 

v.  Miller,   177  X.  Y.   515,   §§  436, 

438. 
People  (ex  rel.  Ft.  George  Realty  Co.) 

v.  Miller,  179  X.  Y.  49,  526,  rev'g 

86  X.  Y.  Supp.  420,  §§8,  12,  39, 

428,  429,  446. 
People  (ex  rel.  Hans  Rees'  Sons)  v. 

Miller,    86    X.    Y.    Supp.    193,    90 

App.   Div.   591,   §§  437,   440,   442, 

446,  449. 
People    (ex    rel.  Hyde    &    Sons)    v. 

Miller.     85     X.     Y.     Supp.     522, 

§449. 
People  (ex  rel.  Manhattan  Silk  Co.)  v. 

Miller,  125  App.  Div.  296,  §§  428, 

449. 
People  (ex  rel.  Mutual  Trust  Co.)  v. 

Miller,  177  X.  Y.  51,  rev'g  83  X.  Y. 

Supp.  185,  §§  8,  12,  39,  425,  437. 
People  (ex  rel.  Mutual  Trust  Co.  of 

Westchester  County)  v.  Miller,  83 

X.  Y.  Supp.  184,  185,  §§  8,  12,  39, 

437. 
People  (ex  rel.  Xew  York  Central  & 

Hudson  River  Rd.  Co.)  v.  Miller, 

88  X.  Y.  Supp.  373,  §  427. 
People  (ex  rel.  Xew  York  Central  & 

Hudson  River  Rd.  Co.)  v.  Miller, 

85  X.  Y.  Supp.  998,  §  449. 
People  (ex  rel.  Xew  York  Central  & 

Hudson  River  Rd.  Co.)  v.  Miller, 

84  X.  Y.  Supp.  1088,  §  441. 
People  (ex  rel.  Xorth  American  Co.) 

v.    Miller,    86    X.   Y.    Supp.    286, 

§§  428,  446. 
People  (ex  rel.  Xorth  American  Co.) 

v.     Miller,     90     App.     Div.     560, 

§§  428,  446. 
People   (ex  rel.   Provident  Sav.  Life 

Ass.  Soc.)  v.  Miller,  179  X.  Y.  227, 

§  436. 
People  (ex  rel.  Wall  &  Hanover  St. 

Realty  Co.)  v.  Miller,   lsl    X.   Y 

328,  §§  428,  429. 
People  (ex  rel.  Brooklyn  Rapid  Tran- 
sit Co.)  v.  Morgan,  57  App.  Div. 

335,  §  446. 


XC11 


TABLE    OF   CASES    CITED 


People  (ex  rel.  Commercial  Cable  Co.) 

v.  Morgan,  178  N.  Y.  433,  §§  425, 

441,  446. 
People    (ex   rel.    Koechl  &   Co.)    v. 

Morgan,    88    N.    Y.    Supp.    1066, 

§446. 
People   (ex  rel.   Waterman   Co.)    v. 

Morgan,  48  App.  Div.  395,  §  445. 
People  v.  Morris,  13  Wend.  (N.  Y.) 

325,  §§  61,  69,  230. 
People  (ex  rel.  Maybury)  v.  Mutual 

Gas  Light  Co.,  38  Mich.  154,  §§  36, 

47. 
People  (City  of  Buffalo)  v.  New  York 

Cent.  &  Hudson  River  R.  Co.,  156 

N.  Y.  570,  §  282. 
People    (City   of   Niagara   Falls)    v. 

New  York  Cent.  &  Hudson  River 

R.  Co.,  158  N.  Y.  410,  §  282. 
People  v.  New  York  Cent.  R.  Co., 

34  Barb.  (N.  Y.)  123,  §  231. 
People  v.  North  River  Sugar  Refining 

Co.,  3  N.  Y.  Supp.  401,  §§  11,  51. 
People  v.  O'Hair,  128  111.  20,  §  11. 
People  v.  O'Brien,  111  N.  Y.  1  (see 

"Appendix    C,"    herein),     §§  287, 

299,  309,  319,  324,  485. 
People  v.  Olsen,  222  111.  117,  §  234. 
People     v.     Orange     County     Road 

Const.  Co.,  175  N.  Y.  84,  §  298. 
People  v.  People's  Gas  Light  &  Coke 

Co.,  205  111.  482,  §  245. 
People  (ex  rel.  Rochester  Ry.  Co.)  v. 

Pond,  57  N.  Y.  Supp.  490,  §§  425, 

446. 
People  v.  Potter,  82  N.  Y.  Supp.  649, 

§287. 
People  (ex  rel.  Jackson)  v.  Potter,  47 

N.  Y.  375,  §  204. 
People  v.  Priest,  77  N.  Y.  Supp.  382, 

§§  9,  33,  424. 
People  (ex  rel.  Retsof  Min.  Co.)   v. 

Priest,  77  N.  Y.  Supp.  382,  §§  9, 

33,  424. 
People  (Moloney)  v.  Pullman's  Pal- 
ace Car  Co.,  175  111.  125,  §  42. 
People  v.   Raymond,    18  Colo.   242, 

§  265. 


People  v.  Reardon,  97  N.  Y.  Supp. 

535,  §§  231,  298. 
People  v.  Reclamation  District  No. 

551,  117  Cal.  114,  §  89. 
People   (Attorney  General)   v.   Reis, 

76  Cal.  269,  §  238. 
People  (Koerner)  v.  Ridgley,  21  111. 

65,  §§  1,  3,  11,  21,  132. 
People    v.    Ritchie,    12    Utah,    180, 

§  269. 
People  v.  Roberts,  92  Cal.  659,  §  17. 
People  v.  Roberts,   158  N.  Y.   162, 

§26. 
People  (A.  J.  Johnson  Co.)  v.  Roberts, 

159  N.  Y.  70,  §§  441,  446. 
People    (ex   rel.    Badische   Anilin    & 

Soda    Fabrik)     v.     Roberts,     152 

N.  Y.  59,  §  428. 
People  (ex  rel.  Chicago  Junction  Ry. 

&  Union  Stockyards   Co.)  v.  Rob- 
erts, 154  N.  Y.  1,  §§  428,  446. 
People  (ex  rel.  Jerome  Park  Villa  Site 

&  S.  I.  Co.)  v.  Roberts,  58  N.  Y. 

Supp.  254,  §  429. 
People  (ex  rel.  Jewelers  Pub.  Co.)  v. 

Roberts,  155  N.  Y.  1,  §  445. 
People  (ex  rel.  New  England  Dressed 

Meat  &  Wool  Co.)  v.  Roberts,  155 

N.  Y.  408,  §  446. 
People    (ex   rel.    New  York   &   East 

River  Ferry  Co.)  v.  Roberts,   168 

N.  Y.  14,  §  446. 
People  (ex  rel.  Parke  Davis  &  Co.)  v. 

Roberts,  91  Hun,  158,  §  425. 
People  (ex  rel.  Union  Ferry  Co.)  v. 

Roberts,  72  N.  Y.  Supp.  950,  §  442. 
People  (ex  rel.  United  Verdi  Copper 

Co.)   v.   Roberts,    156  N.   Y.   585, 

§442. 
People  (ex  rel.  Washington  Mills  Co.) 

v.  Roberts,  40  N.  Y.  Supp.  417, 

§425. 
People  (ex  rel.  Wiebush  &  Hilger  Co.) 

v.  Roberts,  154  N.  Y.  101,  §  446. 
People  v.  Rose,  207  111.  352,  §§231, 

233,  261. 
People  v.  Rosentein-Cohn  Cigar  Co., 

131  Cal.  153,  §  491. 


TABLE    OF   CASES   CITED 


XC111 


People  v.  Saint,  etc.     See  People  v. 

St.,  etc. 
People  v.  San  Francisco  &  Alameda 

R.  Co.,  35  Cal.  606,  §  15. 
People    v.    Sasswitch,    29    Cal.    482, 

§289. 
People  v.  Seneca  Lake  Grape  &  Wine 

Co.,  52  Hun  (N.  Y.),  174,  §  489. 
People  (Deneen)  v.  Simons,  176  111. 

165,  §  234. 
People  v.  Spring  Valley,  129  111.  169, 

§11- 
People  (ex  rel.  New  York  Elect.  Lines 

Co.)    v.    Squire,    107    N.    Y.    593, 

§§  191,  247,  298. 
People  v.  Stanford,  77  Cal.  360,  §  474. 
People  (Cantrell)  v.  St.  Louis,  A.  & 

T.  H.  R.  Co.,  176  111.  512,  §  464. 
People   v.   Tax   Commissioners,    174 

N.  Y.  441,  §  423. 
People  (ex  rel.  Interborough  Rapid 

Transit  Co.)  v.  Tax  Commissioners, 

126  App.  Div.  610,  §  444. 
People  (ex  rel.  Jamaica  Water  Supply 

Co.)    v.    Tax   Commissioners,    128 

App.  Div.  13,  §  450. 
People  (ex  rel.  Metropolitan  St.  Ry. 

Co.)    v.    Tax   Commissioners,    174 

N.  Y.  417,  §§  7,  9,  11,  12,  417,  423, 

425,  446. 
People  v.  Thames  &  Mersey  Marine 

Ins.  Co.,  176  N.  Y.  531,  §  436. 
People  v.  Trustees  of  Geneva  College, 

5  Wend.  (N.  Y.)  211,  §  21. 
People  v.  Union  Tel.  Co.,  192  111.  307, 

§47. 
People  v.  Utica  Ins.  Co.,   15  Johns. 

(N.  Y.)  357,  §§  1,  3,  11,  26,  65,  122, 

233,  236,  239,  251,  311. 
People  (Weaver)  v.  Van  De  Carr,  150 

X.  Y.  439,  §234. 
People  (ex  rel.  Tyroler)   v.  Warden, 

157  N.Y.  116,  §298. 
People  (ex  rel.  Burke)   v.  Wells,   95 

N.  Y.  Supp.  100,  §  427. 
People  (ex  rel.  American  Contracting 

6  D.  Co.)  v.  Wemple,   L29  N.  Y 
558,  §§  428,  446. 


People   (ex  rel.   Brush  Electric  Mfg. 

Co.)   v.   Wemple,    129   N.   Y.   543, 

§§  77,  445. 
People  (ex  rel.  Edison  Electric  Illumi- 
nating Co.)  v.  Wemple,  129  N.  Y. 

664,  §§  77,  445. 
People  (ex  rel.  Edison  Electric  Light 

Co.)   v.   Wemple,    148  N.  Y.   690, 

§§  442,  446. 
People  (ex  rel.  Edison  Electric  Light 

Co.)   v.   Wemple,    138  N.  Y.   543, 

§442. 
People  (ex  rel.  Roebling's  Sons  Co.)  v. 

Wemple,  138  N.  Y.  582,  §  445. 
People  (ex  rel.  Seth   Thomas   Clock 

Co.)   v.   Wemple,    133  N.  Y.  323, 

§§  425,  446. 
People   (ex  rel.  Singer  Mfg.   Co.)   v. 

Wemple,    150    N.    Y.    46,    §§  425, 

442. 
People  (ex  rel.  Southern  Cotton  Oil 

Co.)    v.   Wemple,    131    N.   Y.   64, 

§425. 
People  v.  West,  106  N.  Y.  293,  §  231. 
People  v.  Williams,  56  Cal.  549,  §  108. 
People   (ex  rel.  Frost)   v.   Wilson,   3 

Hun   (10  N.  Y.  Super.  Ct.),  437, 

§21. 
People  (Livesay)  v.  Wright,  6  Colo. 

92,  §§  205,  207,  217. 
People's   Gas   Light   &   Coke  Co.   v. 

Chicago,  194  U.  S.  1,  §§  325,  392. 
People's  Gas  Light  &  Coke  Co.  v. 

Hale,  94  111.  App.  406,  §§  82,  83, 

311,  390. 
People's    National    Bank    v.    Marye, 

191  U.  S.  272,  §§  234,  272,  277. 
People's    Rd.    v.    Memphis    Rd.,    10 

Wall.  (77  U.  S.)  38,  §§  2,  14,   15, 

17,  97,  132,  185. 
Peoria   &    Rock   Island   Ry.   Co.    v. 

Coal  Valley  Mining  Co.,  68  111.  489, 

§§  63,  97,  105,  464. 
Pere   Marquette   R.   Co.   v.   City  of 

Ludington,   10  Det.   Leg.   N.   231, 

§  425. 
IVrkins   v.    Northern   Pac.    Ry.   Co., 

1.").")  Fed.  445,  §§  391,  400,  402. 


xciv 


TABLE    OF   CASES    CITED 


Perkinson  v.  State,  14  Md.  184,  §  238. 
Perkiomen    R.    Co.    v.    Collegeville 

Electric  St.  R.  Co.  (Pa.  C.  P.),  14 

Mont.  Co.  L.  R.  13,  §  96. 
Peter  v.   Kendal,   6  Barn.   &  Cress. 

703,  §§  15,  17. 
Peters  v.  Vawter,  10  Mont.  201,  §  283. 
Petersburg,    City   of,    v.    Petersburg 

Aqueduct  Co.,  102  Va.  654,  §  379. 
Peterson  v.  Chicago,  Rock  Island  & 

Pacific  Ry.  Co.,  205  U.  S.  364,  §  353. 
Peterson  v.  Gittings,  107  Iowa,  306, 

§  253. 
Peterson  &  Passaic  Gas  &  Elect.  Co. 

v.   State   Board   of  Assessors,    69 

N.  J.  L.  116,  §  448. 
Petit  v.  Minnesota,   177  U.  S.   164, 

§384. 
Petri  v.  F.  E.  Creehman  Lumber  Co., 

199  U.  S.  487,  §  282. 
Pettit  v.  McClellan,  97  N.  Y.  Supp. 

320,  §  192. 
Philadelphia  v.  Empire  Pass.  R.  Co., 

177  Pa.  382,  §  344. 
Philadelphia  v.  Fox,  64  Pa.  180,  §  55. 
Philadelphia  v.  Hestonville,  M.  &  F. 

Pass.  Ry.  Co.,  203  Pa.  38,  §  337. 
Philadelphia   v.    Lombard   &   S.   St. 

Pass.  R.  Co.,  4  Brewst.  (Pa.)  14, 

§  379. 
Philadelphia  v.  Ridge  Ave.  Pass.  Ry. 

Co.,  143  Pa.  444,  §§  337,  225,  243. 
Philadelphia  &  M.  R.  Co.'s  Appeal, 

187  Pa.  123,  §  488. 
Philadelphia  &  Southern  Steamship 

Co.  v.  Pennsylvania,  122  U.  S.  326, 

§§  404,  420,  465. 
Philadelphia,  City  of,  v.  Field,  58  Pa. 

320,  §  289. 
Philadelphia,   City  of,   v.   McManes, 

175  Pa.  28,  §§  14,  111. 
Philadelphia,  City  of,  v.  Philadelphia 

Traction  Co.,  206  Pa.  35,  §  433. 
Philadelphia,  City  of,  v.  Postal  Teleg. 

Cable  Co.,   21    N.   Y.   Supp.   556, 

§  360. 
Philadelphia  Co.  v.  Park,  138  Pa.  346, 

§83. 


Philadelphia    Fire    Assoc,    v.    New 

York,  119  U.  S.  110,  §§  67,  357. 
Philadelphia  W.  &  B.  Co.  v.  Bowers, 

4  Houst.  (Del.)  506,  §  311. 
Philadelphia,    W.    &   B.   Ry.  Co.    v. 

Maryland,  10  How.  (51  U.  S.)  376, 

§482. 
Phillips  v.  Bloomington,  1  G.  Greene 

(Iowa),  498,  §  24. 
Phillips  v.  Bury,  2  Term.  Rep.  346, 

§61. 
Phillips   v.   Covington   &   Cincinnati 

Bridge  Co.,  2  Mete.  (59  Ky.)  219, 

§§  213,  230. 
Phillips'  Academy  v.  King,  12  Mass. 

546,  §  51. 
Phillipsburg  Electric  Lighting,  H.  & 

P.  Co.  v.  Town  of  Phillipsburg,  66 

N.  J.  L.  505,  §§  33,  314,  485,  488. 
Phoenix  v.  Trustees  of  Columbia  Col- 
lege, 84  N.  Y.  Supp.  897,  §  328. 
Phcenix  Carpet  Co.  v.  State,  118  Ala. 

143,  §§  421,  425. 
Phcenix  Fire  &  Marine  Ins.  Co.  v. 

Tennessee,  161  U.  S.  174,  §§  479, 

482. 
Picard  v.  East  Tennessee,  Virginia  & 

Georgia  Rd.  Co.,   130  U.  S.  637, 

§§  20,  479. 
Pickard    v.    Pullman    Southern    Car 

Co.,  117  U.S.  34,  §§404,419. 
Pickens  v.  Georgia  Rd.  Co.,  126  Ga. 

517,  §  464. 
Pickering  Phipps  v.  London  &  North- 
western Ry.  Co.,  2  Q.  B.  D.  229, 

§413. 
Picking  v.  State,  26  Md.  503,  §  205. 
Pierce    v.    Commonwealth,    104    Pa. 

150,  §§  56,  99. 
Pierce  v.  Emery,  32  N.  H.  484,  §§  8, 

11,  12,  21,  38,  313. 
Pierce  v.  Van  Dusen,  78  Fed.  699, 

§384. 
Pikes    Peak   Power   Co.    v.    City   of 

Colorado    Springs,     105    Fed.     1, 

§33. 
Pingree  v.  Dix,  Auditor  General,  120 

Mich.  95,  §§  219,  421. 


TABLE    OF   CASES    CITED 


XCV 


Pingree  v.  Michigan  Central  R.  Co., 

118  Mich.  314,  §§  412,  4S1. 
Pingree  v.  Mutual  Gas  Co.,  107  Mich. 

156,  §  390. 
Pique     (Branch    of    the    State)     v. 

Knoop,   16  How.   (57  U.  S.)   369, 

§§  438,  460. 
Piscataqua  Bridge  v.  New  Hampshire 

Bridge,  7  N.  H.  35,  §  311. 
Pittsburg,  Cincinnati,  Chicago  &  St. 

Louis  Ry.  Co.  v.  Backus,  154  U.  S. 

421,  §§  182,  426. 
Pittsburg,  Cincinnati,  Chicago  &  St. 

Louis  Ry.  Co.  v.  Board  of  Public 

Works,  West  Virginia,  172  U.  S.  32, 

§  430. 
Pittsburg,  Cincinnati,  Chicago  &  St. 

Louis  Ry.  Co.  v.  Lightheiser,  168 

Ind.  438,  §  66. 
Pittsburg,  Cincinnati,  Chicago  &  St. 

Louis  Ry.  Co.  v.  Montgomery,  152 

Ind.  1,  §§  245,  291. 
Pittsburg  Coal  Co.  v.  Bates,  156  U.  S. 

577,  §  404. 
Pittsburg,   Ft.   W.   &  C.   R.   Co.   v. 

Chicago  (Cook  County  Super.  Ct.), 

27  Chicago  Leg.  News,  242,  §  315. 
Pittsburg,  Wheeling  &  Ky.  Rd.  Co.  v. 

Benwood  Iron  Works,  31  W.  Va. 

710,  §  63. 
Planters'  &  M.  Bank  v.  Andrews,  8 

Port.  (Ala.)  404,  §  65. 
Piatt  v.  Lecocq,  150  Fed.  391,  §§  63, 

137,  365. 
Piatt  v.  Union  Pac.  R.  Co.,  99  U.  S. 

48,  §  262. 
Platte    &    I).    Canal    &    M.    Co.    v. 

Dowell,  17  Colo.  376,  §§  317,  335. 
Plessy  v.  Ferguson,   163  V.  S.  537, 

§  386. 
Plum  v.  Kansas  City,  101  Mo.  525, 

§261. 
Plum   v.    Lugar,    49    N.    J.    L.    557, 

§§282,  283. 
I'liimlcy  v.  Massachusetts,  155  U.  S. 

461,  §  229. 
Plymouth  Township  v.  Chestnut   Hill 
&N.  R.  Co.,  168  Pa.  181,  §  379. 


Pocantico  Water  Works  Co.  v.  Bird, 

130  N.  Y.  249,  §  19. 
Poindexter  v.   Greenhow,   114  U.  S. 

270,  §  416. 
Police   Jury   v.    Bridge   Co.,   44   La. 

Ann.  137,  §§15,  34. 
Police   Jury   v.    McDonough,    8    La. 

Ann.  341,  §  231. 
Police  Jury   of   Lafourche   v.   Robi- 

chaux,  116  La.  286,  §  201. 
Polk  v.  Mutual  Reserve  Fund  Life 

Association  of  New  York,  207  U.  S. 

310,  §§  317,  339. 
Pomeroy  v.   Pomeroy,  93  Wis.  262, 

§269' 
Pontchartrain    R.    Co.     v.     Orleans 

Levee  Dist.  Commrs.,  49  La.  Ann. 

570,  §  89. 
Pool    v.    Simmons,     134    Cal.    621, 

§  239. 
Poor  v.   Iowa  Central  Ry.  Co.,   155 

Fed.  226,  §§  407,  408. 
Port  Chester  St.  Ry.  Co.,  In  re,  43 

App.  Div.  536,  §  183. 
Porter  v.  Illinois  Southern  Ry.  Co., 

116  Mo.  App.  526,  §  464. 
Porter  v.  Kingfisher  County,  6  Okla. 

550,  §  282. 
Porter  v.  Rockford,  Rock  Island  & 

St.  Louis  Rd.  Co.,  76  111.  561,  §§  11, 

26,  51,  423. 
Porter  v.   Waterman,   77  Ark.   383, 

§  283. 
Portland  v.  Portland  Water  Co.,  67 

Me.  135,  §  456. 
Portland    &    Willamette  Valley  Rd. 

Co.  v.  Portland;  14  Ore.  188,  §§  33, 

2:;:;. 

Port  of  Mobile  v.  Louisiana  &  Nash- 
ville Rd.  Co.,  St  Ala.  115,  §§  is;,, 
260,  :;i  I,  317,  334. 

Port  of  Mobile  v.  Louisville  &  Nash- 
ville R.  Co.,  84  Ala.  115,  §§11,  L85, 
260,  314,  317,  334. 

Portsmouth  Township  v.  Cranage 
S.S.  ('.).,  148  Mich.  230,  §440. 

Postal  Teleg.  Cable  Co.  v.  Adams, 
L55  U.S.  <iss,  §§  419,  420,  432. 


XCV1 


TABLE    OF   CASES    CITED 


Postal  Teleg.  Cable  Co.  v.  Baltimore, 

156  U.  S.  210,  §  131. 
Postal  Teleg.  Cable  Co.  v.  Charleston, 

153  U.  S.  692,  §  358. 
Postal  Teleg.  Cable  Co.   v.  City  of 

Newport,  25  Ky.  L.  Rep.  635,  §  131. 
Postal   Teleg.   Cable   Co.  v.   City   of 

Norfolk,  101  Va.  125,  §  356. 
Postal  Teleg.  Cable  Co.  v.  New  Hope, 

192  U.  S.  55,  §  356. 
Postal  Teleg.  Cable  Co.   v.  Norfolk 

&   Western   R.   Co.,   88   Va.   920, 

§§  238,  241. 
Postal  Teleg.  Cable  Co.  v.  Southern 

R.  Co.,  89  Fed.  190,  §§  63,  269. 
Postal  Teleg.  Cable  Co.  v.  Taylor,  192 

U.  S.  64,  §  356. 
Postmaster    General    v.    Early,     12 

Wheat.  (25  U.  S.)  136,  §  244. 
Potsdam  Elec.  Light  &  Power  Co.  v. 

Village  of  Potsdam,  97  N.  Y.  Supp. 

190,  199,  §§  11,  160. 
Potter  v.  Collis,  156  N.  Y.  16,  §  344. 
Potter  v.  State,  92  Ala.  37,  §  270. 
Pottlach  Lumber  Co.  v.  Peterson,  12 

Idaho,  769,  §§  19,  63. 
Poughkeepsie  Bridge  Co.,  In  re,  108 

N.  Y.  483,  §  252. 
Pound  v.  Turck,  95  U.  S.  459,  §  152. 
Powell  v.  Brunswick  County  Super- 
visors, 88  Va.  707,  §  245. 
Powell  v.  De  Blane,  23  Tex.  66,  §  271. 
Powell   v.   Pennsylvania,    127   U.   S. 

678,  §  295. 
Powell  v.  Spackman,  7  Idaho,  692, 

§205. 
Power  v.  Choteau'  County,  7  Mont. 

82,  §  236. 
Powers  v.  Detroit,  Grand  Haven  & 

M.  R.  Co.,  201  U.  S.  543,  §§  278, 

412,  459,  482. 
Powers   v.   Slaght,    180    U.    S.    173, 

§129. 
Powers   v.   St.    Paul,    36   Minn.    87, 

§287. 
Prairie  Cattle  Co.  v.  Williamson,   5 

Okla.  488,  §  440. 
Pratt  v.  Allen,  13  Conn.  119,  §  289. 


Pratt  v.  American  Bell  Teleph.  Co., 

141  Mass.  225,  §  269. 
Pratt  v.  Bacon,  10  Pick.  (27  Mass.) 

123,  §§  51,  53. 
Pratt  v.  Bown,  3  Wis.  603,  §  311. 
Pratt  v.  Munson,   17  Hun  (N.  Y.), 

475,  §  425. 
Prentis  v.  Atlantic  Coast  Line  et  ah, 

211  U.  S.  210.    See  "  Appendix  C," 

herein. 
Presbyterian     Soc.     v.     Auburn     & 

Rochester  Rd.  Co.,  3  Hill  (N.  Y.), 

567,  §  99. 
Presser   v.   Illinois,    116   U.   S.   252, 

§234. 
Price  v.  Chicago  Title  &  Trust  Co., 

182  U.  S.  438,  §  270. 
Price  v.  People,  193  111.  114,  §  366. 
Prigg  v.   Pennsylvania,   16  Pet.   (41 

U.S.)  539,  §§  205,216. 
Prince  v.   Police  Jury  of  Concordia 

Parish,  112  La.  257,  §  201. 
Printing,    etc.,    Registering    Co.    v. 

Sampson,  L.  R.  19  Eq.  462,  §  82. 
Proprietors  of  Jeffries  Neck  Pasture 

v.  Ipswich,  153  Mass.  42,  §  64. 
Propst  v.  Southern  Ry.  Co.,  139  N. 

Car.  397,  §  236. 
Prospect  Park  &  Coney  I.  R.  Co.  v. 

Coney   Island   &   B.    R.   Co.,    144 

N.  Y.  152,  §  469. 
Prosser   v.    County   of   Wapello,    18 

Iowa,  327,  §§  1,  15,  199. 
Prosser  v.  Northern  Pacific  Ry.  Co., 

152  U.  S.  59,  §  146. 
Prout  v.  Starr,  188  U.  S.  537,  §  416. 
Providence  Bank  v.  Billings,  4  Pet. 

(29  U.  S.)  514,  §§  60,  138,  311. 
Provident   Institution  v.   Massachu- 
setts,   6    Wall.    (73    U.    S.)    611, 

§§  272,423,424,438. 
Provident  Institution  for  Savings  v. 

Jersey  City,  113  U.  S.  506,  §  298. 
Provident  Life  &  Trust  Co.  v.  Mercer 

County,  170  U.  S.  593,  §  228. 
Prudential  Ins.  Co.  v.  Hummer,  36 

Colo.  208,  §  231. 
Pryor,  In  re,  55  Kan.  724,  §  392. 


TABLE    OF   CASES    CITED 


XCV11 


Pueblo  &  Arkansas  Valley  Rd.  Co.  v. 

Taylor,  6  Colo.  1,  §  100. 
Pullman  Car  Co.  v.  Kraus  (Ala.),  40 

So.  398,  §  109. 
Pullman  Palace  Car  Co.  v.  King,  99 

Fed.  3S0,  §  109. 
Pullman  Palace  Car  Co.  v.  Missouri 

Pac.    Ry.    Co.,    115    U.    S.    587, 

§481. 
Pullman  State  Bank  v.  Manring,  18 

Wash.  250,  §  234. 
Purczell    v.    Smidt,    21    Iowa,    540, 

§289. 
Purdy  v.  People,  4  Hill  (N.  Y.),  384, 

§51. 
Purnell  v.  McLane,  98  Md.  589,  §§  2, 

16,  132,  185,  191,  344. 
Pyle  v.  Brennerman,  122  Fed.  787, 

§440. 

Q- 

Queen  v.  Hertford  College,  3  Q.  B. 

Div.  707,  §  216. 
Queen  City  Teleph.  Co.  v.  Cincinnati, 

27  Ohio  Cir.  Ct.  R.  385,  §  179. 
Quick  v.  White-Water  Township,  7 

Ind.  570,  §  207. 
Quincy  v.  Bull,  106  111.  337,  §  47. 
Quinlan  v.  Houston  &  T.  C.  R.  Co.,  89 

Tex.  356,   §§  247,   284,   348,   349, 

350. 
Quinlan  v.  Smye,  21  Tex.  Civ.  App. 

156,  §  225. 

R. 

Rafferty  v.  Central  Traction  Co.,   1 

Pa.  Adv.  R.  419,  §  465. 
Rahn  Township  v.  Tamaqua  &  L.  St . 

R.  Co.,  167  Pa.  84,  §§111,  379. 
Rahrer,  In  re,  140  U.  S.  545,  §  370. 
Railroad  &  Teleph.  Cos.  v.  Board  of 

Equalization  (C.  C),  85  Fed.  302, 

§  226. 
Railroad  Cases,  40  La.  Ann.  587,  42 

La.    Ann.    4,   44    La.    Ann.    1055, 

§  423. 
Railroad    Commission.       See    State 

Railroad  Commission. 


Railroad  Commission  v.  Kansas  City 

Southern   Ry.    Co.,    Ill    La.    133, 

§§  167,  386. 
Railroad  Commission  v.  Weld  (Tex. 

Civ.  App.),  66  S.  W.  122,  §  184. 
Railroad  Commission  Cases  (see  Stone 

v.  Farmers'  Loan  &  Tr.  Co.),  116 

U.  S.  307,   §§  391,   400,  401,  406, 

407,  412. 
Railroad  Commission  Cases  (see  Stone 

v.   New   Orleans   &   Northwestern 

Ry.  Co.),   116  U.  S.   352,   §§  398, 

400. 
Railroad  Commissioners.    See  Board 

of. 
Railroad  Commissioners  v.   Atlantic 

Coast  Line  R.  Co.,  74  S.  Car.  80, 

§375. 
Railroad  Commissioners  v.  Portland 

&  Oxford  Central  Rd.  Co.,  63  Me. 

269,  §  100. 
Railroad    Companies    v.    Gaines,    97 

U.  S.  697,  §§  421,  454,  479. 
Railroad  Company  v.  Commissioners, 

103  U.  S.  1,  §  479. 

Railroad  Company  v.  Ervin,  89  Pa. 

71,  §  387. 
Railroad  Company  v.  Fuller,  17  Wall. 

(84  U.  S.)  560, "§§366,  404. 
Railroad    Company    v.    Georgia,    98 

U.  S.  359,   §§  317,  331,  479,  481, 

484. 
Railroad     Company     v.      Hamblen, 

County  of,  102  U.  S.  273,  §  480. 
Railroad  Company  v.   Hammersley, 

104  U.  S.  1,  §  383. 

Railroad    Company     v.     Hecht,     95 

U.  S.  168,  §  138. 
Railroad    Company    v.     Husen,     !)."> 

U.   S.   465  •  (see   Hannibal    &   St. 

Joseph  R.  Co.  v.  Husen),  §§  2!).-), 

366,  373,  404. 
Railroad  Company  v.  Maine,  96  U.  S. 

499,  §§458,  481,482,  IS f. 
Railroad  Company  v.  Maryland,  21 

Wall,  ins  I'.  S.)  456,  §  Mil. 
Railroad    Company   v.    McClure,    1" 

Wall.  (77  C.  S.)  511,  §§  279,  305. 


Vll 


XCV111  TABLE    OF   CASES    CITED 

Railroad  Company  v.   Peniston,    18  Raymond  v.  Security  Trust  Co.,  89 

Wall.  (85  U.  S.)  5,  §  418.  N.  Y.  Supp.  753,  §  463. 

Railway   Company   v.    Philadelphia,  Raymond,     County     Treasurer,     v. 

101  U.  S.  528,  §§  331,  359.  Hartford  Fire  Ins.  Co.,  196  111.  329, 

Railroad  Company  v.  Richmond,  96  §  421. 

U.  S.  521,  §  345.  Reading,  City  of,  v.  United  Traction 

Railroad  Company  v.  Tompkins,  176  Co.,  202  Pa.  571,  §  337. 

U.    S.    167    (see    "Appendix    C,"  Reading  Rd.  Co.  v.  Pennsylvania,  15 

herein),  §§  381,  409,  416.  Wall.  (82  U.  S.)  232,  §  17. 

Railroad  Tax  Cases  (see  State  Rail-  Reagan  v.  Farmers'   Loan  &  Trust 

road    Tax    Cases),    13    Fed.    722,  Co.,  154  U.  S.  362  (see  "Appen- 

§  137.  dix  C,"  herein),  §§  171,  173,  234, 

Ramagnano   v.   Cook,   85  Ala.   226,  298,  381,  400,  406,  407,  409,  412, 

§  234.  416. 

Ramsey    v.    Hommel,    68    Wis.    12,  Reclamation    Dist.    v.    Turner,    104 

§  253.  Cal.  334,  §  108. 

Ramsey  v.  Tacoma  Land  Co.,   196  Redlands  L.  &  C.  Domestic  Water 

U.  S.  360,  §  129.  Co.    v.    Redlands,    121    Cal.    312, 

Randolph  v.  Larned,  27  N.  J.  Eq.  §  390. 

557,  §§  25,  26.  Red  Rock  v.  Henry,  106  U.  S.  596, 

Ransome  v.  Eastern  Ry.  Co.,  1  C.  B.  §  283. 

437,  §  413.  Reelfoot  Lake  Levee  Dist.  v.  Daw- 

Rasin  v.   Lidgerwood  Mfg.   Co.,   86  son,  97  Tenn.  151,  §§  89,  137,  138, 

N.  Y.  Supp.  49,  §  253.  150,  164,  226. 

Rasmusser   v.    Baker,    7   Wyo.    117,  Reeves  v.  Philadelphia  Traction  Co., 

§  216.  152  Pa.  153,  §  337. 

Ratcliff    v.     Wichita    Union    Stock  Reid    v.    Colorado,    187    U.    S.    137, 

Yards  Co.,  74  Kan.  1,  §§  110,  289,  §§  231,  291,  372,  373. 

298.  Reid  v.  Jones,  187  U.  S.  153,  §  416. 

Rathbone  v.  Mirth,  150  N.  Y.  459,  Reimers  v.  Seatco  Mfg.  Co.,  70  Fed. 

§  230.  575,  §  355. 

Ratterman  v.  Western  Union  Teleg.  Reis  v.  City  of  New  York,  188  N.  Y. 

Co.,  127  U.  S.  411,  §  404.  58,  §  192. 

Rauen  v.    Prudential   Life   Ins.   Co.  Revere  Water  Co.  v.  Town  of  Win- 

(Iowa),  106  N.  W.  198,  §  87.  throp,  192  Mass.  455,  §§  136,  298. 

Rawson    v.    State,     19    Conn.    292,  Rex  v.  Inhabitants  of  Bucks  County, 

§  264.  12  East,  192,  §  15. 

Ray   v.    Henderson,    132    Ala.    175,  Rex  v.  Inhabitants  of  Yorkshire,  2 

§  47.  East,  342,  §  15. 

Rayburn   Water   Co.    v.    Armstrong  Rex  v.  Williams,  1  Burr.  402,  §  21. 

Water    Co.,    9    Pa.    Dist.    R.    24,  Reynolds   v.   City   of   Cleveland,    24 

§  4.  Ohio  Cir.  Ct.  R.  609,  §  379. 

Ray  County  v.  Bentley,  49  Mo.  236,  Rhawn  v.  Edge  Hill  Furnace  Co.,  201 

§  56.  Pa.  637,  §  11. 

Rayford  v.  Faulk  (Ala.,  1908),  45  So.  Rhinehart  v.  Redfield,  179  N.  Y.  569, 

714,  §§  245,  270.  §§  63,  344. 

Raymond  v.  Chicago  Traction  Co.,  Rhinehart  v.  Redfield,  87  N.  Y.  Supp. 

207  U.  S.  20,  §§  182,  422.  789,  §§  63,  344. 


TABLE    OF    CASES    CITED 


XC1X 


Rhode  Island  Hospital  Trust  Co.  v. 

Tax   Assessors   of   Providence,    25 

R.  I.  355,  §  441. 
Rhodes  v.  Iowa,  170  U.  S.  412,  §  370. 
Rice  v.  Detroit,  Y.  &  A.  Ry.  Co.,  122 

Mich.  677,  §  398. 
Rice   v.  Railroad   Co.,   1    Black    (66 

U.  S.),  35S,  §§  253,  254. 
Rich  v.  Flanders,  39  N.  H.  304,  §  231. 
Richard    v.    Lazard,    108    La.    540, 

§  236. 
Richards  v.  Clarksburg,  30   W.   Va. 

491,  §  11. 
Richardson   v.    Richardson,    38    La. 

Ann.  641,  §  265. 
Richardson    v.    Treasure    Hill    Min. 

Co.,    23    Utah,    366,    §§  206,    212, 

216. 
Richman  v.  Consolidated  Gas  Co.  of 

N.  Y.,  186  N.  Y.  209,  §§  29S,  392. 
Richman  v.  Consolidated  Gas  Co.  of 

N.  Y.,  100  N.  Y.  Supp.  SI,  §  J  298, 

392. 
Richmond  v.  Henries  County,  83  Va. 

204,  §§  239,  287. 
Richmond    v.    Southern    Teleph.    & 

Teleg.  Co.,  42  U.S.  686,  §131. 
Richmond    &    Allegheny   R.    Co.    v. 

R.  A.  Patterson  Tobacco  Co.,  169 

U.  S.  311,  §  378. 
Richmond,    City    of,    v.    Richmond 

Natural   Gas  Co.    (Ind.,    1907),   79 

X.  E.  1031,  §  392. 
Richmond,  City  of,  v.  Smith,  101  Va. 

161,  §§  170,  344,  345. 
Richmond,  F.  &  P.  R.  Co.  v.  Louisa 

R.   Co.,    13   How.    (54    U.   S.)    71, 
6   323,  333. 
Richmond  R.  it  E.  Co.  v.  Brown,  97 

Va.  20.  §§  96,  362. 
Rickcr  v.   American    Loan   &   Trust 

Co.,  1  to  Mass.  346, 
Riddle;    v.    Proprietors    of    Locks    & 

Canal-.  7  Mas  .  L69,  >•  56. 
Rider  v.  United  States,  L78  U.S.  250, 

§  151. 
Ridley   v.  Sherbrook,   ■;  '  !oldw.   '  13 

Tenn.)  569,  J  21. 


Rieger,  Kapner  &  Altmark,  In  re,  157 

Fed.  609,  §  11. 
Riker  v.  Lee,  133  N.  Y.  519,  §  238. 
Rio  Grande  W.  R.  Co.  v.  Telluride 

Power  Transmission  Co.,  16  Utah, 

125,  §  490. 
Ripley  v.  Evans,  87  Mich.  217,  §  245. 
Rippstein  v.  Haynes  Medina  Valley 

Ry.  Co.  (Tex.  Civ.  App.),  85  S.  W. 

314,  §  4S6. 
Ritchie  v.  People,  155  111.  98,  §  300. 
Roanoke  Gas  Co.  v.  Clarksburg,  30 

W.  Va.  491,  §  51. 
Roanoke  Gas  Co.  v.  Roanoke,  88  Va. 

810,  §  51. 
Robbins  v.  Shelby  Co.  Taxing  Dist., 

120  U.  S.  489,  §§  366,  404,  419. 
Roberts  v.  Northern  Pacific  R.  Co., 

158  U.  S.  1,  §§  276,  288. 
Robinson  v.  Lamb,  129  N.  Car.  16, 

§  194. 
Robinson  v.  Lamb,  126  N.  Car.  492, 

§47. 
Robinson    v.    Oceanic    Steam    Nav. 

Co.,  112  N.  Y.  315,  §  293. 
Robinson  v.  Rippey,   111   Ind.   112, 

§282. 
Robinson  v.  Schenck,  102  Ind.  307, 

§  231. 
Roby  v.  New  York  C.  &  H.  R.  R. 

Co.,  142  N.  Y.  176,  §  472. 
Rocheblave   Market   Co.   v.   City   of 

New   Orleans    (La.),    34   So.    665, 

§§  410,    117. 
Rochester    City    v.    Rochester,    182 

X.  V.  99,  116,  §§  335,  479. 
Rochester     &     Charlotte     Turnpike 

Road  Co.  v.  Joel,  58  X.  Y.  Supp. 

346,  §  17. 
Rochester  Ry.  Co.  v.  City  of  Roches- 
ter, 205  V.  S.  236,  §§  20,  138,  335, 

338,  U2,  179,  481,  482. 
Rochester  Teleph.  Co.  v.  Ross,  125 

App.  Div.  I.  §  187. 
Rockland  Water  Co.  v.  Camden  &  R. 

Co.,  so  Me.  544,  §§  23,  254. 
Hock  well  County  v.  Kaufman  County, 
x.   172.  §  287. 


TABLE    OF   CASES    CITED 


Roddy  v.  Brooklyn  Heights  R.  Co., 

23  Misc.  373,  §  270. 
Rodenbaugh    v.    Philadelphia  Trac- 
tion Co.,  190  Pa.  358,  §  245. 
Roenberg   v.    Weeks,    67   Tex.    578, 

§231. 
Rogers  Park  Water  Co.  v.   Fergus, 

180  U.  S.  624,  §  185. 
Rohn  v.  Harris,  130  111.  525,  §  17. 
Rosenbloom  v.  State,  64  Neb.  342, 

§231. 
Rosin  v.   Lidgerwood   Mfg.   Co.,   86 

N.  Y.  Supp.  49,  §§  233,  244. 
Ross  v.  Chicago,  M.  &  St.  P.  Ry.  Co., 

8  Fed.  544,  §  51. 
Ross  v.  Whiteman,  6  Cal.  361,  §  289. 
Rothschild  v.  Knight,  184  U.  S.  334, 

§  292. 
Rowan  v.  Runnels,  5  How.  (46  U.  S.) 

134,  §  225. 
Roxbury  Lodge  v.  Hocking,  60  N.  J. 

L.  439,  §  287. 
Royall,    Ex   parte,    117    U.    S.    241, 

§416. 
Royer,  Estate  of  Matter  of,  123  Cal. 

614,  §  73. 
Ruckert  v.  Grand  Ave.  Ry.  Co.,  163 

Mo.  260,  §  241. 
Ruggles  v.   Illinois,    108  U.   S.   526, 

§§  167,  236,  262,  381,  391,  400,  412, 

455. 
Ruggles  v.  People,  91  111.  256,  §  311. 
Rumford    v.   Wood,    13    Mass.    193, 

§56. 
Rundle  v.  Delaware  &  R.  Canal  Co., 

14  How.  (55  U.S.)  80,  §311. 
Runnels  v.   State   (Tex.  Civ.   App., 

1903),  77  S.  W.  458,  §  270. 
Runyan  v.  Coster,  14  Pet.  (39  U.  S.) 

122,  §  351. 
Runyan  v.  Lessee  of  Coster,  14  Pet. 

(39  U.  S.)  122,  §  51. 
Rushville  v.  Rushville  Natural  Gas 

Co.,  132  Ind.  575,  §§  83,  244,  392. 
Rutland  R.  Co,  In  re  (Vt,  1906),  64 

Atl.  233,  §  382. 
Ryalls  v.  Mechanics'  Mills,  150  Mass. 

190,  §§  253,  269. 


Ryan  v.  Carter,  93  U.  S.  78,  §§  250, 
265. 

s. 

Sacramento  v.  The  New  World,  4  Cal. 

41,  §  17. 
Saddle  River  Township  v.   Garfield 

Water  Co.  (N.  J.  Ch.),  32  Atl.  978, 

§379. 
Sage  v.  New  York,   154  N.  Y.  61, 

§  120. 
Saguache  County  v.  Decker,  10  Colo. 

149,  §  282. 
Saint.     See  St. 
Salisbury,  In  re,  44  N.  Y.  Supp.  291, 

§  239. 
Salt  Co.  v.  East  Saginaw,   13  Wall. 

(80  U.  S.)  373,  §  334. 
Salt  Lake  County  v.  State  Board  of 

Equalization,  18  Utah,  172,  §  440. 
Salt  River  Valley  Canal  Co.  v.  Nell- 
sen  (Ariz.),  85  Pac.  117,  §  393. 
Salvage  v.  St.  Louis  &  S.  F.  Ry.  Co., 

135  Mo.  163,  §  372. 
Salzenstein    v.    Mavis,    91    111.    391, 

§372. 
Samish   River   Boom   Co.   v.   Union 

Boom  Co,  32  Wash.  586,  §  90. 
Sammons  v.  Kearney  Power  &  Irriga- 
tion Co.   (Neb.),   110  N.  W.  308, 

§88. 
Sams  v.  Sams,  85  Ky.  396,   §§  238, 

239. 
Samuelson  v.  State,  116  Tenn.  470, 

§245. 
San  Antonio  v.  Mehaffey,  96  U.  S. 

312,  §  245. 
San  Antonio  Traction  Co.  v.  Altgelt, 

200  U.  S.  304,  §§  286,  330,  479,  481. 
Sanders  v.  Bridges,  67  Tex.  93,  §  268. 
Sanders  v.  Southern  Elec.  Ry.  Co., 

147  Mo.  411,  §  387. 
Sanders  v.  St.  Louis  &  New  Orleans 

Anchor  Line,  97  Mo.  26,  §  222. 
Sanderson  v.   Commissioners,   3  Pa. 

Com.  PI.  1,  §  82. 
Sandford  v.  New  York,  15  How.  Pr. 

(N.  Y.)  172,  §  51. 


TABLE    OF   CASES    CITED 


CI 


Sandham  v.  Nye,  30  N.  Y.  Supp.  552, 

§§  8,  12,  35. 
San  Diego  Flume  Co.  v.  Southern,  90 

Fed.  164,  §§  88,  393. 
San  Diego  Land  &  Town  Co.  v.  Jas- 
per, 189  U.  S.  439  (see  "Appen- 
dix C,"  herein),  §  88. 
San  Diego  Land  &  Town  Co.  v.  Na- 
tional  City,    174   U.   S.    739    (see 
"Appendix    C,"    herein),    §§  393, 
406,  409. 
Sands  v.  Manistee  River  Imp.  Co., 

123  U.  S.  288,  §§  17,  224,  298. 
Sanford   v.    City   of   Tucson    (Ariz., 

1903),  71  Pac.  903,  §  130. 
San  Francisco  &  S.  M.  Electric  Ry. 

Co.  v.  Scott,  142  Cal.  222,  §  433. 
San  Francisco  Nat.  Bank  v.  Dodge, 

197  U.  S.  70,  §  277. 
San  Joaquin  &  King's  River  Canal  & 
Irrig.  Co.  v.  Merced  County,  2  Cal. 
App.  593,  §§8,  11,  12,  26,  37,  423, 
440. 
San  Luis  Water  Co.  v.  Estrada,  117 

Cal.  168,  §§  51,  474. 
San  Mateo  County  v.  Railroad  Co.,  7 

Sawy.  517,  §  421. 
Santa  Clara,  County  of,  v.  Southern 

Pac.  Rd.  Co.,  18  Fed.  385,  §  51. 
Sargent  v.  Union  School  District,  63 

N.  H.  528,  §  239. 
Satterlee  v.  Mathewson,   2  Pet.   (27 

U.  S.)  380,  §  306. 
Sauter  v.  Utica  City  Nat.  Bank,  90 

N.  Y.  Supp.  838,  §  185. 
Savage  v.  Salem,  23  Ore.  381,  §  33. 
Savannah  v.  Jesup,   106  U.  S.  563, 

§20. 
Savannah,  T.  &  I.  of  H.  Ry.  Co.  v. 
Savannah,  198  U.  S.  392,  §§  277, 
460. 
Savings    Bank    v.    Owensboro,     173 

U.  S.  636,  §  458. 
Sawyer    v.    Davis,    136    Mass.   239, 

§  400. 
Sawyer,  Tn  re,  124  U.  S.  200,  §  416. 
Scarsburgh  Turnpike  Co.  v.  Cutler,  6 
Vt.  315,  §  350. 


Scharfer  v.  Werling,   188  U.  S.  516, 

§272. 
Schenectady    Ry.    Co.    v.    Peck,    84 

N.  Y.  Supp.  759,  §  111. 
Schenk    v.    State,    60   N.  J.  L.  381, 

§245. 
Schinzel  v.  Best,  92  N.  Y.  Supp.  754, 

§§  145,  158. 
Schlemmer  v.  Buffalo,  Rochester  & 

Pittsburg   Ry.   Co.,   205   U.   S.    1, 

§  385. 
Schlesinger  v.  Kansas  City  &  S.  Ry. 

Co.,  139  U.  S.  663,  §  485. 
Schmidt  v.  Indianapolis  (Ind.,  1907), 

80  N.  E.  632,  §  67. 
Schmidt  v.  Louisville  &  M.  R.  Co., 

101  Ky.  441,  §  464. 
School  Board  of  Brooklyn  v.  Board 

of  Education  of  New  York,    157 

N.  Y.  566,  §  236. 
School  City  of  Marion  v.  Forrest,  168 

Ind.  94,  §  417. 
School  District  v.  Insurance  Co.,  103 

U.  S.  707,  §  56. 
School  Town  of  Montecello  v.  Ken- 
dall, 72  Ind.  91,  §  56. 
Schurz  v.  Cook,  148  U.  S.  397,  §  329. 
Schwede  v.  Hemrich  Bros.  Brewing 

Co.  (Wash.),  69  Pac.  362,  §  344. 
Scott  v.  Donald,  165  U.  S.  58,  §§  404, 

416. 
Scott  v.  McNeal,  154  U.  S.  34,  §  298. 
Scottish  Union  &  National  Ins.  Co.  of 

Edinburg   v.    Herriott    (Iowa),   80 

N.  W.  605,  §  357. 
Scouten    v.    City    of    Whatcom,    33 

Wash.  273,  §  262. 
Scovel  v.  City  of  Detroit,  146  Mich. 

93,  §  oil. 
Scranton  Elect.  Light  &  Heat  Co.  v. 

Scranton     Illuminating,     Heat    & 

Power  Co.,  122  Pa.  154,  §  23. 
Scripps  v.  Board  of  Review  of  Fulton 

County,  183  111.  278,  §  440. 
Seaboard  Air  Line  Ry.  Co.  v.  Florida, 

203  U.  S.  261,  §§  167,  381,  408. 
Seaboard  Air  Line  Ry.  Co.  v.  Olive, 

142  N.  Car.  257,  §§486,  491. 


('11 


TABLK    OF    CASKS    CITED 


Seaboard  Air  Line  Ry.  Co.  v.   Rail- 
road  Commissioners   of   Ala.,    155 

Fed.  192,  §  409. 
Seaboard  Air  Line  Ry.  Co.  v.  Seegers, 

207  U.  S.  73,  §§  300,  370,  386. 
Seaboard   &   R.   R.   Co.   v.   Norfolk 

County,  83  Va.  195,  §§  20,  479. 
Seaboard   Teleg.    &   Teleph.    Co.    v. 

Kearney,  74  N.  Y.  Supp.  15,  §  485. 
Searle  v.  Lead,  10  S.  Dak.  312,  §  226. 
Seattle,  City  of,  v.  Clark,  28  Wash. 

717,  §  366. 
Seattle  Gas  &  Electric  Co.  v.  Citizens' 

Light  &  Power  Co.,  123  Fed.  588, 

§51. 
Security  Co.  v.  Hartford,   61  Conn. 

89,  §  425. 
Security  Mut.  Life  Ins.  Co.  v.  Prewitt, 

Ins.  Commr,  202  U.  S.  246,  §§  352, 

355. 
Security  Savings  &  Loan  Assoc,   v. 

Elbert  (Ind.),  54  N.  E.  753,  §  352. 
Security  Trust  Co.  v.  Liberty  Build- 
ing Co.,  89  N.  Y.  Supp.  340,  §§  424, 

437. 
Seeley  v.  Franchot,  104  N.  Y.  Supp. 

1145,  §  233. 
Seeley,    Matter   of,    v.    Stevens,    190 

N.  Y.  158,  §  233. 
Seibert  v.  Lewis,  122  U.  S.  284,  §  416. 
Selectmen  of  Gardner  v.  Templeton 

St.  Ry.,  184  Mass.  294,  §  197. 
Sellers  v.  Greer,  172  111.  549,  §  51. 
Sellers  v.  Union  Lumbering  Co.,  39 

Wis.  525,   §§1,  2,   11,   17,  26,  43, 

122. 
Selma  &  Gulf  Rd.  Co.,  Ex  parte,  48 

Ala.  696,  §  217. 
Seneca  Min.  Co.  v.  Osman,  82  Mich. 

573,  §§  204,  2S8. 
Senior  v.  Rattermann,   44  Ohio  St. 

661,  §  233. 
Sessions  v.  Romadka,  145  U.  S.  29, 

§270. 
Seymour  Water  Co.  v.  City  of  Sey- 
mour (Ind.),  70  N.  E.  514,  §  486. 
Shadford  v.  Detroit,  Y.  &  A.  Ry.,  130 

Mich.  300,  §  4S1. 


Shamokin  Valley  Rd.  Co.  v.  Liver- 
more,  47  Pa.  465,  §§  1,  8,  12,  17,  19, 

26. 
Sharp,  In  re  (C.  A.),  L.  R.  45  Ch.  D. 

286,  §  98. 
Sharpless  v.  Mayor  of  Philadelphia, 

21  Pa.  160,  §§  209,  289. 
Shaw  v.  City  of  Covington,  194  U.  S. 

593,  §  481. 
Shea  v.  Muncie,  148  Ind.  14,  §  282. 
Shelby  County  v.  Union  &  P.  Bank, 

161  U.  S.  149,  §  334. 
Shelton    v.    Piatt,    139    U.    S.    591, 

§422. 
Shenandoah  Valley  R.  Co.  v.  Clarke 

County,  78  Va.  269,  §  448. 
Shepard  v.  Milwaukee  Gas  Co.,  6  Wis. 

539,  §§  82,  390. 
Sherlock  v.  Ailing,  93  U.  S.  99,  §§  131, 

369. 
Shields  v.  Clifton  Hill  Land  Co.,  94 

Tenn.  123,  §  315. 
Shields  v.  Ohio,  95  U.  S.  319,  §  479. 
Shively    v.    Bowlby,    152    U.    S.    1, 

§§  130,  146. 
Shotwell  v.   Moore,    129  U.  S.   590, 

§  287. 
Shreveport  v.   Cole,    129   U.   S.   36, 

§215. 
Shreveport  v.   Shreveport  Belt  Ry. 

Co.,  107  La.  785,  §  337. 
Shreveport  &  R.  R.  V.  R.  Co.  v.  St. 

Louis  W.  R.  Co.,  51  La.  Ann.  814, 

§  333. 
Shreveport,    City    of,    v.    St.    Louis 

Southwestern  R.  Co.,  115  La.  885, 

§345. 
Shreveport  Traction  Co.   v.  Kansas 

City,   Shreveport  &  Gulf  Ry.  Co., 

119  La.  759,  §  48. 
Siemens  v.  Sellers,    123  U.  S.   276, 

§  262. 
Sigur  v.  Crenshaw,  8  La.  Ann.  401, 

§224. 
Simpkins    v.    Ward,    45   Mich.    559, 

§265. 
Singer    Manufacturing    Co.    v.    Mc- 

Collock  (C.  O),  24  Fed.  667,  §  233. 


TABLE    OF    CASES    CITED 


cm 


Singer  Manufacturing  Co.  v.  Wright, 

33  Fed.  121,  §  291. 
Sinking   Fund.      See   Commissioners 

of. 
Sinking  Fund  Cases   (Union   Pacific 

Rd.  Co.  v.  United  States  and  Cent. 

Pac.  Rd.  Co.  v.  Gallatin),  99  U.  S. 

700,  §§  319,  391,  400,  458. 
Sinking  Fund  Cases,  110  U.  S.  347, 

§391. 
Sinnot  v.   Davenport,   22   How.    (63 

U.  S.)  227,  §  120. 
Sioux  City  St.  Ry.  Co.  v.  Sioux  City, 

78  Iowa,  367,  §  337. 
Sisters  of  Charity  of  St.  Elizabeth  v. 

Corey,  73  N.  J.  L.  699,  §§  412,  455. 
Skaget  County  v.  Stiles,   10  Wash. 

388,  §§  232,  234. 
Skaneateles    Water    Works    Co.    v. 

Skaneateles,  184  U.  S.  354,  §  23. 
Skaneateles  Water  Works  Co.  v.  Vil- 
lage of  Skaneateles,  54  N.  Y.  Supp. 

1115,  §§  234,  235,  394. 
Skinner  v.  Garnett  Gold  Mining  Co., 

96  Fed.  735,  §§  245,  298,  300. 
Slaughter     v.     Commonwealth,      13 

Gratt.  (Va.)  767,  §  67. 
Slaughter-House  Cases,  16  Wall.  (83 

U.  S.)  36,  §§  19,  63,  126,  295. 
Slaughter-House  Cases,  10  Wall.  (77 

U.  S.)  273,  §  296. 
Slidell  v.  Grandjean,  111  U.  S.  412, 

§254. 
Slingerland    v.     International    Con- 
tracting Co.,  60  N.  Y.  Supp.   12, 

§21. 
Slinguff  v.  Weaver,  66  Ohio  St.  621, 

§§  249,  262. 
Smead  v.  Indianapolis,  P.  &  C.  R. 

Co.,  11  Ind.  104,  §§  311,  313. 
Smiley  v.   Kansas,    196   U.   S.    117. 

§§  272,  280,  366. 
Smith   v.   Alabama,    124   U.  S.   465, 

§§  366,  369,  377. 
Smith  v.  Atchison,  Topeka  &  Santa 

Fe  R.  Co.   (C.  C),   64    Fed.  272, 

§  319. 
Smith  v.  Baker,  5  Okla.  326,  §  269. 


Smith  v.  Bryan,  100  Va.  199,  §  236. 
Smith  v.  Dayton  Coal  vS:  Iron  Co.,  115 

Tenn.  543,  §  269. 
Smith  v.  Frankfort  &  C.  Ry.  Co.,  2 1 

Ky.  L.  Rep.  2040,  §  476. 
Smith  v.  Haney,  73  Kan.  506,  §  234. 
Smith  v.   Jennings,   206   U.  S.   276, 

§§  273,  279. 
Smith  v.  Lake  Shore  &  M.  S.  R.  Co  , 

114  Mich.  460,  §§375,400,411,412. 
Smith  v.  Mayor,  etc.,  of  New  York,  68 

N.  Y.  552,  §§  2,  S,  15,  17,  34,  424. 
Smith   v.    Nashville,    88   Tenn.   464, 

§11. 
Smith  v.  Strother,  68  Cal.  194,  §  173. 
Smith  v.  Thursby,  28  Md.  244,  §  208. 
Smith    v.    Turner.      See    Passenger 

Cases. 
Smyth  v.  Ames,  169  U.  S.  466,  §§  66, 

173,  29S,  381,  392,  397,  401,  402, 

406,  407,  408,  416. 
Smythe  v.  Fiske,  24  WTall.  (90  U.  S.) 

374,  §  262. 
Snell  v.  Dubuque  &  S.  C.  R.  Co.,  78 

Iowa,  88,  §  282. 
Snider  v.  Barks,  84  Ala.  53,  §  270. 
Snider  v.  City  of  St.  Paul,  51  Minn. 

466,  §§  56,  62. 
Society  for  Savings  v.  Coite,  6  Wall. 

(73  U.  S.)  594,  §§  29,  423,  424. 
Soon  Hing  v.  Crowley,  113  U.  S.  703, 

§149. 
Soper  v.  Henry  County,  26  Iowa,  264, 

§56. 
Southampton,  Trustees  of,  v.  Jessup, 

162  N.  Y.  122,  §  254. 
South  Carolina  v.  Georgia,  93  U.  S. 

13,  §§  127,  L52. 
South  Carolina  v.  United  States,  199 

U.  S.  437,   §§  120,  204,  208,  210, 

212,  289. 
South  Carolina  Rd.  Co.  v.  McDonald, 

5  Ga.  531,  §  51. 
South  ( 'ox  in-ton  &  C.  St.  R.  Co.  v. 

Bellevue,    20   Ky.    L.    Rep.    1184, 

§  433. 
South  Dakota  v.  North  Carolina,  L92 

U.S.  286,  §  205. 


CIV 


TABLE    OF   CASKS    CITED 


Southern  Bell  Telcpli.  Co.  v.  D'Alem- 

berte,  39  Fla.  25,  §§  238,  240. 
Southern  Bell  Teleph.  &  Teleg.  Co.  v. 

Richmond   (C.  C.  E.  D.  Va.),  78 

Fed.  858,  §  131. 
Southern  Elec.  Light  &  Power  Co.  v. 

Philadelphia,  191  Pa.  170,  §  78. 
Southern  Express  Co.  v.  R.  M.  Rose 

Co.,  124  Ga.  581,  §  74. 
Southern    Fire    Proof   Hotel   Co.    v. 

Jones,  177  U.  S.  449,  §  52. 
Southern  Gum  Co.  v.  Laylin,  66  Ohio 

St.  578,  §§  5,  137,  417. 
Southern  Illinois  &  Missouri  Bridge 

Co.  v.  Stone,  174  Mo.  1,  §§  70,  145. 
Southern  Pacific  Co.  v.  Denton,  146 

U.  S.  202,  §  355. 
Southern  Pacific  R.  Co.  v.  Bell,  183 

U.  S.  675,  §  129. 
Southern  Pacific  R.  Co.  v.  Board  of 

Railroad   Commrs.,    78   Fed.    236, 
.      §  137. 
Southern  Pacific  R.  Co.  v.  California, 

162  U.  S.  167,  §  128. 
Southern  Pacific  R.  Co.  v.  Esquibel 

(N.  Mex.),  20  Pac.  109,  §  468. 
Southern  Pacific  R.  Co.  v.  Interstate 

Commerce  Commission,  200  U.  S. 

536,  §§  153,  177. 
Southern  Pacific  R.  Co.  v.  Orton,  32 

Fed.  457,  §§  11,  12,  30,  143,  209, 

231,  252,  289. 
Southern  Pacific  R.  Co.  v.  Railroad 

Commissioners  (C.  C),  78  Fed.  236, 

§214. 
Southern   Pacific   R.   Co.   v.   United 

States,  200  U.  S.  341,  354,  §  129. 
Southern   Pacific   R.   Co.   v.   United 

States,  189  U.  S.  447,  §  129. 
Southern   Pacific   R.   Co.   v.   United 

States,  183  U.  S.  519,  §§  124,  129, 

242. 
Southern  R.  Co.  v.  Coulter,  24  Ky.  L. 

Rep.  203,  §  453. 
Southern  R.  Co.  v.  Franklin  &  P.  R. 

Co.,  96  Va.  693,  §  477. 
Southern  R.  Co.  v.  Greensboro  Ice  & 

Coal  Co.,  134  Fed.  82,  §  170. 


Southern  R.  Co.  v.  McNeill,  155  Fed. 

756,  §§  284,  401. 
Southern  R.  Co.   v.   North  Carolina 

Corp.  Commissions  (C.  C),  97  Fed. 

513,  §  417. 
Southern  R.  Co.  v.  North  Carolina  R. 

Co.,  81  Fed.  595,  §§  306,  472. 
Southern  R.  Co.  v.  State,  125  Ga.  287, 

§382. 
South   Park   Commissioners  v.  Chi- 
cago, 107  111.  105,  §  25. 
South  Park   Commissioners  v.  First 

National  Bank,  177  111.  234,  §  244. 
South  Passadena,  City  of,  v.  Passa- 

dena    Land    &    Water    Co.    (Cal., 

1908),  93  Pac.  490,  §  26. 
Southwestern  R.  Co.  v.  Georgia,  92 

U.  S.  665,  §  479. 
Southwestern  R.   Co.   v.   Paulk,   24 

Ga.  356,  §  64. 
Southwestern  Teleg.  &  Teleph.  Co.  v. 

City  of  San   Antonio    (Tex.   Civ. 

App.,  1903),  73  S.  W.  859,  §  423. 
South  Yorkshire   Ry.  &  River  Dun 

Co.  v.  Great  Northern  Ry.  Co.,  22 

Eng.  L.  &  Eq.  531,  §  17. 
Spalding  v.   Macomb   &  W.   I.  Ry. 

Co.,  225  111.  585,  §  111. 
Sparks  v.  Macon,  98  Ga.  301,  §  421. 
Spease  Ferry,  In  re,  138  N.  Car.  219, 

§§  14S,  194. 
Spencer  v.  Board  of  Registration,  1 

Mc Arthur  (D.  C),  169,  §  21. 
Spencer  v.  State,  5  Ind.  41,  §  207. 
Spira  v.   State   (Ala.),   41   So.  465, 

§361. 
Spitzer  v.  Village  of  Fulton,  68  N.  Y. 

Supp.  660,  §  21. 
Spokane  Falls  &  Northern  Ry.  Co.  v. 

Stevens    (Wash.,    190S),    93    Pac. 

927,  §  262. 
Spooner    v.    McConnell,    1    McLean 

(C.  C),  337,  §  289. 
Spotswood  v.  Morris,  12  Idaho,  360, 

§§  53,  132. 
Sprague  v.  Fletcher,  69  Vt.  69,  §  292. 
Spraigue  v.  Thompson,  118  U.  S.  90, 

§  234. 


TABLE    OF    CASES    CITED 


CV 


Spratt  v.  Helena  Power  &  Trans.  Co. 

(Mont.),  94  Pac.  631,  §§  226,  231. 
Sprigg  v.  Garett  Park,  89  Md.  406, 

§§  295,  297. 
Springfield  v.   Greene,    120  111.  269, 

§239. 
Springfield  v.  Springfield  St.  Ry.  Co., 

182  Mass.  41,  §  337. 
Spring     Valley     Water     Works     v. 

Schottler,   110  U.  S.  347,   §§  173, 

320,  336,  391,  392,  393,  458. 
Spring     Valley     Water     Works     v. 

Schottler,  62  Cal.  69,  §§  1,  5,   10, 

11,  12,  16,  122. 
St.   Anna's   Asylum   v.    Parker,    109 

La.  592,  §  421. 
St.  Charles  St.  Ry.  Co.  v.  Board  of 

Assessors,  51  La.  Ann.  458,  §  447. 
St.  Clair  County  v.  Interstate  Sand 

&  Car  Trans.  Co.,  192  U.  S.  454, 

§371. 
St.  Cloud,  City  of,  v.  Water,  Light  & 

Power  Co.  (Minn.),  92  N.  W.  1112, 

§490. 
St.  Joseph  &  Grand  Island  Rd.  Co.  v. 

Steele,  167  U.  S.  659,  §  353. 
St.  Joseph  Board  of  Public  Schools, 

62  Mo.  444,  §  226. 
St.  Joseph  Plank  Co.  v.  Kline,   106 

La.  325,  §§  136,  201. 
St.  Louis  v.  Berry,   113  U.  S.  465, 

§  479. 
St.  Louis  v.  St.  Louis  Gas  Co.,  70  Mo. 

69,  §  82. 
St.   Louis  v.   Western   Union  Teleg. 

Co.,  148  U.  S.  92,  §§  17,  131,  356, 

360. 
St.  Louis  &  A.  R.  Co.  v.  Fire  Assoc, 

60  Ark.  325,  §  227. 
St.   Louis  &  C.   R.  Co.   v.  East  St. 

Louis  &  C.  R.  Co.,  39  111.  App.  354, 

§  465. 
St.    Louis   &    C.    R.   Co.    v.   Postal 

Teleg.   Co..    173    111.    508,  §§  241, 

469. 
St.  Louis  &  San  Francisco  Ry.  Co.  v. 

dill,   156  U.  S.  649,   §§381,  407, 

HO,  416. 


St.  Louis  &  San  Francisco  Ry.  Co.  v. 

James,  161  U.  S.  545,  §§  291,  353. 
St.  Louis  &  San  Francisco  Ry.  Co.  v. 

Matthews,  165  U.  S.  1,  §§  138,  300, 

366. 
St.  Louis  &  T.  H.  R.  Co.  v.  Terre 

Haute  &  I.  R.  Co.,  145  U.  S.  393, 

§§  467,  473. 
St.  Louis,  A.  &  T.  R.  Co.  v.  Phila.  F. 

Assoc,  55  Ark.  163,  §  287. 
St.  Louis  Brewing  Assoc,  v.  City  of 

St.  Louis,  140  Mo.  419,  §  17. 
St.  Louis,  City  of,  v.  Conn.  Mut.  Life 

Ins.  Co.,  107  Mo.  92,  §  387. 
St.  Louis,  City  of,  v.  Ferry  Co.,  11 

Wall.  (78  U.  S.)  423,  §  67. 
St.  Louis,  City  of,  v.  Green,  7  Mo. 

App.  468,  §  17. 
St.  Louis  Consolidated  Coal  Co.  v. 

Illinois,  185  U.  S.  203,  §§  151,  162. 
St.  Louis  County  v.  Duluth,  77  Minn. 

433,  §  459. 
St.  Louis,  Iron  Mountain  &  Southern 

Ry.  Co.  v.  Berry,   113  U.  S.  465, 

§481. 
St.  Louis,  Iron  Mountain  &  Southern 

Ry.  Co.  v.  Commercial  Union  Ins. 

Co.,  139  U.  S.  223,  §  353. 
St.  Louis  Iron  Mountain  &  Southern 

Ry.  Co.  v.  Neal,  83  Ark.  591,  §  154. 
St.  Louis,  Iron   Mountain,  etc.,  Ry. 

Co.  v.  Paul,  173  U.  S.  404,  §§  317, 

320. 
St.  Louis,  Iron  Mountain  &  Southern 

Ry.  Co.  v.  Paul,  64  Ark.  83,  §§  42, 

282,  300,  317. 
St.  Louis,  Iron  Mountain  &  Southern 

Ry.  Co.  v.  Southern  Express  Co., 

See  Express  Cases. 
St.  Louis,  Iron  Mountain  &  Southern 

Ry.    Co.    v.    State,    55    Ark.    200, 

§  234. 
St.  Louis,  Iron  Mountain  &  Southern 

Ry.  Co.  v.  St.  Louis,  92  Mo.  160, 

§§  178,  184. 
St.  Louis  Southwestern  Ry.  Co.   v. 

Gentry  (Tex.  Civ.  App.),  95  S.  W. 

74,  §§  234,  245. 


CV1 


TABLE   OF   CASES   CITED 


St.  Mary's  Gas  Co.  v.  Elk  County, 

191  Pa.  458,  §  83. 
St.  Mary,  Village  of,  v.  Lake  Erie  & 

W.  R.  Co.,  60  Ohio  St.  136,  §§  238, 

381. 
St.   Paul  v.    Chicago,    Milwaukee   & 

St.    Paul   R.    Co.,    63   Minn.   330, 

§234. 
St.  Paul  &  Minneapolis  M.  R.  Co.  v. 

Todd    County,     142    U.    S.    283, 

§459. 
St.  Paul,  City  of,  v.  Freedy,  86  Minn. 

350,  §  140. 
St.  Paul,  etc.,  Ry.  Co.  v.  St.  Paul,  39 

Minn.  112,  §  454. 
St.  Paul  Gas  Light  Co.  v.  City  of  St. 

Paul,  181  U.  S.  142,  §  315. 
St.  Paul  Gas  Light  Co.  v.  City  of  St. 

Paul,  91  Minn.  521,  §  390. 
St.  Paul,  M.  &  M.  Ry.  Co.  v.  Phelps, 

137  U.  S.  52S,  §  263. 
St.  Tammany  Water  Works  v.  New 

Orleans  Water  Works,   120  U.  S. 

64,  §§  16,  313. 
Standard    Cotton    Seed    Oil    Co.    v. 

Matheson,     48     La.     Ann.     1321, 

§245. 
Standard  Oil  Co.  v.  Commonwealth, 

26  Ky.  L.  Rep.  985,  §  423. 
Staniels  v.   Raymond,   4  Cush.    (58 

Mass.)  314,  §  239. 
Stanislaus   County   v.    San   Joaquin 

Canal  &  Irrig.  Co.,  192  U.  S.  201, 

§§  311,  319,  393,  406,  409,  458. 
Stanley  County  v.  Coler,  190  U.  S. 

437,  §§  274,  276. 
Starin  v.  Staten  Island  R.  T.  Ry.  Co., 

112  N.  Y.  206,  §  466. 
Starne  v.  People,  222  111.  189,  §  216. 
State.     See  Attorney  General;  Com- 
monwealth; People. 
State  v.  Ackerman,  51  Ohio  St.  163, 

§13. 
State  v.  Adams  Express  Co.,  2  Ohio 

N.  P.  98,  §  53. 
State  (ex  rel.  Railroad  &  Warehouse 

Commission)    v.    Adams    Express 

Co.,  66  Minn.  271,  §  169. 


State  v.    Alabama   Bible  Soc,    134 

Ala.  632,  §  311. 
State  v.  Allen,  178  Mo.  555,  §  390. 
State  v.  Anderson,  31  Ind.  App.  34, 

§41. 
State  v.  Anderson,  90  Wis.  550,  §§5, 

27. 
State  (Badger  Ilium.  Co.)  v.  Ander- 
son, 97  Wis.  72,  114,  §§  465,  474. 
State  v.  Ashley,  1  Pike  (1  Ark.),  513, 

§§  205,  289. 
State  (Star  Pub.  Co.)  v.  Associated 

Press,  159  Mo.  410,  §  366. 
State  (Leese)  v.  Atchison  &  N.  R. 

Co.,  24  Neb.  143,  §§  465,  481. 
State  v.  Atkin,  64  Kan.  174,  §  298. 
State  v.  Atlantic  &  N.  Car.  R.  Co. 

(N.  Car.,  1906),  53  S.  E.  290,  §  313. 
State  v.  Atlantic  Coast  Line  Rd.  Co. 

(Fla.),  41  So.  705,  §§  63,  167,  300. 
State  v.  Atlantic  Coast  Line  Rd.  Co. 

(Fla.),  40  So.  875,  §§  63,  74,  167, 

401. 
State  v.  Atwood,  11  Wis.  422,  §  311. 
State  v.  Austin  &  Northwestern  Rd. 

Co.,  94  Tex.  530,  §§  2,  8,  11,  19. 
State  v.  Austin  &  Northwestern  Rd. 

Co.  (Tex.  Civ.  App.),  60  S.  W.  886, 

§440. 
State  (Berry)  v.  Babcock,  21  Neb. 

599,  §  265. 
State  (Gassies)  v.  Ballou,  6  Pet.  (31 

U.  S.)  761,  §  67. 
State  v.  Baltimore  &  Ohio  R.  Co.,  12 

Gill  &  J.  (Md.)  399,  §  348. 
State  v.  Banfield,  43  Ore.  287,  §  248. 
State  v.  Barrett,  27  Kan.  213,  §  231. 
State  (Hutchinson)  v.  Belmar,  61  N. 

J.  L.  443,  §§  96,  347,  379. 
State  v.   Berard,   40  La.   Ann.   172, 

§238. 
State  v.    Bernheim,    19  Mont.   512, 

§245. 
State  v.  Board  of  Assessors,  35  La. 

Ann.  651,  §  222. 
State   (Childs)   v.   Board   of  County 

Commissioners  of  Crow  Wing,  66 

Minn.  519,  §  224. 


TABLE    OF   CASES    CITED 


CV11 


State  (ex  rel.   Morris)   v.   Board  of 

Trustees  of  Westminster  College, 

175  Mo.  52,  §§  311,  455. 
State  v.   Bockstruck,    136  Mo.   335, 

§234. 
State  v.  Boston,  Concord  &  Montreal 

R.  Co.,  25  Vt.  433,  §§  12,  14,  17,  32. 
State  v.  Bradford  (S.  Dak.),  SO  X.  W. 

143,  §  227. 
State  (Bridgeton)  v.  Bridgeton  &  M. 

Traction    Co.,    62    N.    J.    L.    592, 

§§  64,  464. 
State  v.  Brown  &  Sharpe  Mfg.  Co., 

18  R.  I.  16,  §§66,  67,  317. 
State  (Hopkins)   v.   Brown  Tobacco 

Co.,  140  Mo.  218,  §  440. 
State  v.  Burlington  &  M.  R.  R.  Co.  v. 

Scott,  22  Neb.  628,  §  63. 
State  (Memphis)  v.  Butler,  86  Tenn. 

614,  §§  412,  459. 
State  (Anderson)  v.  Camden,  58  N. 

J.  L.  515,  §  269. 
State  v.  Campbell  (Kan.,   1906),  85 

Pac.  784,  §  269. 
State  v.  Canadian  Pac.  Ry.  Co.,  100 

Me.  202,  §§  428,  448. 
State  v.  Canal  &  C.  R.  Co.,  50  La. 

Ann.  1189,  §  387. 
State  (Cape  May,  D.  B.  &  S.  P.  R. 

Co.)  v.  Cape  May,  59  N.  J.  L.  393, 

§387. 
State  v.  Carroll,  38  Conn.  449,  §  231. 
State  (ex  rel.  Harlan)   v.  Centralia- 

Chehalis  Elect.  Ry.  Power  Co.,  42 

Wash.  633,  §§  19,  63. 
State  (ex  rel.  Copes)   v.  Charleston, 

10  Rich.  Law  (S.  C),  491,  §  51. 
State  v.  Chicago  A:  X.  W.  Ry.  Co., 

128  Wis.  149,  §§  311,317,417. 
State  (Johnson)  v.  Chicago  &  Q.  R., 

l!if)  Mo.  228,  §  421. 
State    (ex    rel.  Crunipackor)  v.  Chi- 
cago,   Burlington   &   Kansas    City 

Ry.  Co.,  89  Mo.  523,  §  20. 
State   v.  Chicago,  Milwaukee  &  St. 

Paul  Ry.  Co  .  38  Muni.  28,  §  L69. 
State  v.  Chilowee  Woolen  Mills,  115 

Tenn.  260,  §  488. 


State   v.  Chittenden,  127  Wis.  468, 

§§  147,  149,  181,  366. 
State  (Attorney  General)  v.  Cincin- 
nati Central  R.  Co.,  37  Ohio  St. 

157,  §  265. 
State  v.  Cincinnati  Fertilizer  Co.,  24 

Ohio  St.  611,  §  64. 
State  v.  Cincinnati  Gas  Co.,  18  Ohio 

St.  262,  §§  16,  185,  313. 
State  (Caldwell)  v.  Citizens'  St.  Ry. 

Co.  (Neb.,  1907),  141  N.  W.  429, 

§  47. 
State  v.  City  of  Bangor,  98  Me.  114, 

§215. 
State  v.  City  of  Helena,  34  Mont.  67, 

§§  63,  140. 
State  v.  City  of  Helena  (Mont.),  85 

Pac.  744,   §  227. 
State  v.  City  of  Hiawatha  &  General 

Elect.  Co.,  53  Kan.  477,  §  11. 
State  (ex  rel.  Wisconsin  Metropolitan 

Teleph.  Co.)  v.  City  of  Milwaukee 

(Wis.),  113  N.  W.  40,  §§  184,  187. 
State  v.  City  of  New  Brunswick,  30 

N.  J.  L.  395,  §  345. 
State  v.  City  of  Red  Lodge,  30  Mont. 

388,  §  352. 
State  (ex  rel.  Wisconsin  Teleph.  Co.) 

v.  City  of  Sheboygan,  111  Wis.  23, 

§140. 
State    (ex    rel.    Spokane    &    British 

Columbia  Teleph.  &  Teleg.  Co.)  v. 

City    of   Spokane,    24    Wash.    53, 

§§  140,  227,  380. 
State  v.  City  of  Topeka,  30  Kan.  653, 

§§  1,  3,  21. 
State  v.  Clark,  30  Wash.  439,  §  289. 
State  v.  Coffin  (Idaho),  74  Pac.  962, 

§  245. 
State  v.  Columbus  R.  Co.,  24  Ohio 

Cir.  Ct.  609,  §§  14,  317,  379. 
State  v.   Commercial   Ins.   Co..    L58 

[nd.  680,  §  245. 
State  (Morris  &  Essex  Rd.  Co.,  Pros.) 

v.  Commissioner  of  Rd.  Taxation, 

:>,7  X.  J.  L.  228,  §  46. 
State  v.  Constantine,  42  Ohio  St.  437, 

§  230. 


CV111 


TABLE    OF   CASES    CITED 


State  (Hudspeth)  v.  Cooper,  114  Ind. 

1,  §  283. 
State  (Hibbard)  v.  Cornell,  60  Neb. 

276,  §  217. 
State  (Pearson)  v.  Cornell,  54  Neb. 

647,  §§  262,  270. 
State  v.  Corrigan,  10  Vroom  (N.  J.), 

35,  §  404. 
State  (ex  rel.  City  of  Kansas  City)  v. 

Corrigan  Consol.  St.  Ry.  Co.,  85 

Mo.  263,  §  337. 
State    v.    Courtney,    73    Iowa,    619, 

§283. 
State  v.  Cox,  3  Eng.  (8  Ark.)  436, 

§224. 
State  v.  Cumberland  Teleph.  &  Teleg. 

Co.,  114  Tenn.  194,  §  491. 
State  v.  Curler,  26  Nev.  347,  §  229. 
State  v.  Dalton,  22  R.  I.  77,  §  366. 
State    (Chamberlin)    v.    Daniel,     17 

Wash.  Ill,  §§  205,  207,  209,  216, 

217. 
State  v.  Dawson,  22  Ind.  272,  §  350. 
State  v.  Dawson,  16  Ind.  40,  §  349. 
State   v.    Dayton   Traction   Co.,    18 

Ohio  Cir.  Ct.  R.  490,  §  379. 
State    (Hadley)    v.    Delmar    Jockey 

Club  (Mo.),  92  S.  W.  185,  §  488. 
State  (Holt)  v.  Denny,  118  Ind.  449, 

§§  231,  234. 
State  v.  Dens,  R.  M.  Charleton's  R. 

(Ga.),  397,  §  21. 
State  v.  District  Court  of  Tenth  Jud. 

Dist.  of  Meagher  County,  34  Mont. 

535,  §§  19,  63. 
State    (Missouri)    v.    Dockery,     191 

U.  S.  165,  §  182. 
State  v.   Davis   (W.  Va.,   1908),   60 

S.  E.  584,  §  262. 
State  (Hallock)  v.  Donnelly,  20  Nev. 

214,  §  265. 
State  v.  Doran,  5  Nev.  399,  §  205. 
State  v.  Drexel  (Neb.),   106  N.  W. 

791,  §§  236,  239. 
State  (Minnesota)  v.  Duluth  &  I.  R. 

Co.,  97  Fed.  353,  §  313. 
State  v.  Duluth  Gas  &  Water  Co.,  76 

Minn.  96,   §§  111,  425. 


State  v.  Duluth  St.  Ry.  Co.,  76  Minn. 

96,  §  111. 
State  (Kansas  City)  v.  East  Fifth  St. 

R.  Co.,  140  Mo.  539,  §  488. 
State  v.  Edwards  (Utah,   1908),  95 

Pac.  367,  §  231. 
State  (Consol.  Tract.  Co.)  v.  Eliza- 
beth, 58  N.  J.  L.  619,  §§  6,  387. 
State  v.  Engel,  5  Vroom  (N.  J.),  435, 

§404. 
State  (Walker)  v.  Equitable  Loan  & 

I.  Assoc,  142  Mo.  325,  §  287. 
State  v.  Ferris,  53  Ohio  St.  314,  §  25. 
State  (Crow)  v.  Firemen's  Fund  Ins. 

Co.,  152  Mo.  1,  §  234. 
State  v.  Fitzpatrick,  16  R.  I.  1,  §  366. 
State  v.  Fleming  (Neb.),  97  N.  W. 

1063,  §§  432,  436. 
State     (Hoadley)     v.     Florida    Ins. 

Commrs.,  37  Fla.  564,  §  291. 
State  v.  Fontenot,  112  La.  628,  §  236. 
State  (ex  rel.  State  Board  of  Equali- 
zation)   v.    Fortune    (Mont.),    60 

Pac.  1086,  §  223. 
State  (Judah)  v.  Fost  (Mo.),  109  S. 

W.  737,  §§  231,  244. 
State  v.  Franklin  County  Sav.  Bank 

&  Trust  Co.,  74   Vt.  246,   §§  425, 

446. 
State      (McCullough)      v.      Franklin 

Township,  59  N.  J.  L.  106,  §  234. 
State  v.  Freeholders  of  Hudson,  23 

N.  J.  L.  206,  §  4. 
State  (Transportation  Board)  v.  Fre- 
mont, E.  &  M.  V.  R.  Co.,  22  Neb. 

313,  §  264. 
State  v.  Frost  (Neb.),  110  N.  W.  986, 

§§  140,  380. 
State  v.  Galena  Water  Co.  (Kan.),  65 

Pac.  257,  §  491. 
State  v.  Galveston,  H.  &  S.  A.  Ry. 

Co.    (Tex.,    1906),    97   S.    W.    71, 

§§  422,  427. 
State  v.  Garibaldi,  44  La.  Ann.  809, 

§  202. 
State    (ex   rel.    Waring)    v.    Georgia 

Medical  Soc,  38  Ga.  608,  §§  1,  11, 

28. 


TABLE    OF   CASES    CITED 


C1X 


State    v.    Gerhardt,    145    Ind.    439, 

§§  218,  234,  265. 
State  v.  Gloss,  83  Ala.  93,  §  287. 
State  v.  Great  Northern  Ry.  Co.,  100 

Minn.  445,  §§  169,  382. 
State  v.  Griffin,  69  N.  H.  1,  §  366. 
State  (ex  rel.  Port  Royal  Mining  Co.) 

v.  Hagood,  30  S.  C.  519,  §  156. 
State  v.  Holden,  14  Utah,  71,  §  289. 
State  v.  Hammond  Packing  Co.  (La.), 

34  Pac.  368,  §  356. 
State    (Michener)    v.    Harrison,    116 

Ind.  300,  §  265. 
State  v.  Hartford  &  New  Haven  Rd. 

Co.,  29  Conn.  538,  §  88. 
State   (Singer  Mfg.  Co.)  v.  Heppen- 

heimer,  58  N.  J.  L.  633,   §§  412, 

459. 
State  (Ohio  ex  rel.  Walton)  v.  Her- 
mann, 63  Ohio  St.  440,  §  184. 
State  v.  Heyward,  3  Rich.  Law  (S. 

C),  389,  §§  55,  61,  93. 
State  v.  Holloday,  66  Mo.  385,  §  215. 
State  v.  Hood,  15  Rich.  (S.  C.)  177, 

§11- 
State  v.  Hudson  Co.  Freeholders,  23 

N.  J.  L.  206,  §  396. 
State    v.    Humboldt    County    Com- 
missioners, 21  Nev.  235,  §  231. 
State   (Hunt)   v.  Illinois  Central  R. 

Co.,  33  Fed.  721,  §  245. 
State   v.    Indiana   &   O.   Oil   Gas   (V 

Mining  Co.,  120  Ind.  575,  §  374. 
State   (ex   rel.   Agricultural   College) 

v.  Irvine,  14  Wyo.  318,  §  68. 
State  v.  Iverson,  97  Minn.  286,  §440. 
State   v.    Jackman,    69    N.    II.    318, 

§  295. 
State   (Jacksonville)   v.   Jacksonville 

St.  R.  Co.  (Fla.),  10  So.  590,  §  344. 
State  (ex  rel.  Wisconsin  Teleph.  Co.) 

v.  Janesvillc  St.  Ry.  Co.,  87  Wis. 

72,  §  131. 
State  v.  Jennings  (S.  Car.,  1908),  60 

S.  E.  967,  §  229. 
State  (Kennelly)  v.  Jersey  City,  57 

N.  J.  L.  293,  §  379. 
State  v.  Johnson,  f'.l  Kan.  so:;.  §  I  so 


State  v.  Jones,  51  Ohio  St.  492,  §  231. 
State    (Barton    County)    v.    Kansas 

City,  Ft.  S.  &  G.  R.  Co.  (C.  C),  32 

Fed.  722,  §§  237,  383. 
State  (City  Water  Co.)  v.  Kearney,  49 

Neb.  325,  §  240,  282,  287,  311. 
State  (Ross)  v.  Kelly,  45  S.  Car.  457, 

§§  227,  285. 
State  v.  Kibling,  63  Vt.  636,  §  270. 
State  v.  King,  28  Mont.  268,  §  229. 
State  v.  King  County  (Wash.),  69 

Pac.  1106,  §  467. 
State  (Brown)  v.  Klein,  116  Mo.  259, 

§265. 
State  (ex  rel.  Arkansas  Southern  Rd. 

Co.)  v.  Knowles  (La.),  41  So.  439, 

§  102. 
State  (Saunders)  v.  Kohnke,  109  La. 

838,  §§  51,  220,  239,  245. 
State  v.  Kreutzberg,   114  Wis.  530, 

§366. 
State  v.  Laclede  Gas  Light  Co.,  102 

Mo.  App.  472,  §  390. 
State  v.  Lancashire  F.  Ins.  Co.,  66 

Ark.  466,  §  262. 
State  (Jones)  v.  Landis,  50  N.  J.  L. 

374,  §  287. 
State     v.     Leighton,     83     Me.    419, 

§127. 
State  v.  Lewis,  26  Utah,  120,  §§  137, 

231,  233. 
State   (Crow)   v.   Lincoln  Trust  Co., 

144  Mo.  562,  §  42. 
State  (Crow)  v.  Lindell  R.  Co.,  151 

Mo.  162,  §  379. 
State  v.  Maine,  27  Conn.  641,  §  117. 
State  v.  Maine  C.  R.  Co.,  90  Me.  267, 

§2S4. 
State  v.  Maine  Central  R.  Co.,  66  Me. 

488,  §§  12,  17,  20. 
State  v.  Martin,  68  Vt.  93,  §  282. 
State  (ex  rel.  New  York  &  New  Jer- 
sey Teleph.  Co.)  v.  Mayor,  etc.,  of 

Bound  Brook,   66   N.   J.   L.    168, 

§§  140,  176. 
State  v.  Mayor,  etc.,  of  New  York,  3 

Duer  (N.  Y.),  119,  §§  3,  11,  12,  14, 

32,  48,  185,  343. 


ex 


TABLE    OF    CASES    CITED 


State    (Guerguin)    v.    McAllister,    88 

Tex.  284,  §  217. 
State  v.  McCann,  4  Lea  (72  Term.),  1, 

§§  120,  245. 
State  v.  McCollister,  11  Ohio  Rep.  50, 

§21. 
State  v.  McCoomer  (S.  Car.,  1908),  60 

S.  E.  237,  §  282. 
State    v.    McCracken,    42   Tex.    383, 

§245. 
State  (ex  rel.  Chicago,  Milwaukee  & 

St.  Paul  Ry.  Co.)  v.  McFetridge,  56 

Wis.  256,  §  47. 
State  (Robertson)  v.  McGough,  118 

Ala.  159,  §  207. 
State  v.  Miller,  45  Mo.  495,  §  245. 
State  (ex  rel.  Vilter  Mfg.  Co.)  v.  Mil- 
waukee,   Burlington   &   Lake    Ge- 
neva Rd.  Co.,  118  Wis.  142,  §§  9, 

11,  14. 
State     v.     Milwaukee     Independent 

Teleph.  Co.  (Wis.,  1907),  114  N.  W. 

108,  §  48. 
State   (ex  rel.   Attorney  General)  v. 

Milwaukee,  Lake  Shore  &  Western 

Ry.  Co.,  45  Wis.  579,  §  51. 
State  (Clapp)  v.  Minnesota  Thresher 

Mfg.  Co.,  40  Minn.  213,  §§  3,  11,  12, 

32,  132,  189. 
State  (Nolan)  v.  Montana  R.  Co.,  21 

Mont.  221,  §  481. 
State   v.    Moore,    104    N.    Car.    714, 

§  366. 
State    (Farmers'    Mut.    Ins.    Co.)    v. 

Moore,  48  Neb.  870,  §  245. 
State  v.  Moore,  40  Neb.  854,  §  289. 
State  v.  Moore  &  Ligon,  19  Ala.  520, 

§§  1,  132,  140. 
State  (Smythe)   v.  Moores,   55  Neb. 

480,  §§  204,  230,  289. 
State  v.  Morgan,   28  La.   Ann.  482, 

§§  1,  3,  20,  26,  254,  412,  455,  468, 

471,  478,  479,  480. 
State   v.   Morristown   F.    Assoc,    23 

N.  J.  L.  195,  §  425. 
State   v.   Mortensen,    26   Utah,   312, 

§269. 
State  v.  Murlin,  137  Mo.  297,  §  245. 


State    v.     Nashville    University,    4 

Humph.  (Tenn.)  157,  §  65. 
State  v.  Nathan,  121  Rob.  (La.)  332, 

§  289. 
State  (Theberath)  v.  Newark  (N.  J.), 

30  Atl.  528,  §  379. 
State  v.  New  Orleans,  C.  &  L.  R.  Co., 

104  La.  685,  §  349. 
State  v.  New  Orleans  Debenture  Re- 
demption Co.,   51   La.  Ann.   1827, 

§51. 
State    (Bourdette)    v.    New   Orleans 

Gas  Light  Co.,  49  La.  Ann.  1556, 

§  226. 
State  v.  New  Orleans  Ry.  &  Light 

Co.,  116  La.  144,  §§  218,  455. 
State  (New  Orleans)  v.  New  Orleans 

Tract.  Co.,  48  La.  Ann.  567,  §  337. 
State  v.  New  Orleans  Water  Works 

Co.,  107  La.  1,  §§  488,  490. 
State  v.  Nolan,  71  Neb.  136,  §  231. 
State    (Ellis)   v.   Noncomiah  Turnp. 

Co.  (Tenn.),  17  S.  W.  12S,  §  490. 
State  v.  Northern  Cent,  R.  Co.,  44 

Md..  162,  §  311. 
State  v.  Northern  Cent.  Ry.  Co.,  90 

Md.  447,  §§  412,  560. 
State  v.   Northern  Pac.   R.   Co.,   36 

Minn.  207,  §  347. 
State    v.    Northern    Pac.    Ry.    Co. 

(Minn.),  108  N.  W.  269,  §  138. 
State    v.    Northern    Pac.    Ry.    Co. 

(Mont.,  1908),  93  Pac.  945,  §  287. 
State    v.     Northwestern    Trust    Co. 

(Neb.),  101  N.  W.  14,  §  486. 
State  v.  Noyes,  47  Me.  189,  §§311, 

313. 
State    (Getchell)    v.    O'Connor,    81 

Minn.  79,  §§  220,  221. 
State  v.  Omaha  Elevator  Co.  (Nev., 

1906),  106  N.  W.  979,  §  283. 
State  v.  O'Neil  Lumber  Co.,  170  Mo. 

7,  §  215. 
State    v.     Parkinson,     5     Nev.     15, 

§§  223,  262. 
State  v.  Payne,  129  Mo.  468,  §  51. 
State  (Baker)  v.  Payne,  22  Ore.  335, 

§248. 


TABLE    OF   CASES    CITED 


CXI 


State  v.  Peel  Splint  Coal  Co.,  36  W. 

Va.  802,  §§  1,  46. 
State  v.  Philadelphia,  Wilmington  & 

Bait.  Rd.  Co.,  45  Md.  361,  §§  2,  25. 
State  v.  Pittman,  32  Wash.  137,  §  41. 
State   v.    Pittsburg,   Youngstown   & 

Ashtabula  Rd.  Co.,  50  Ohio  St.  239, 

§1- 
State  (Maggard)  v.  Pond,  93  Mo.  605, 

§234. 
State  v.  Portage  City  Water  Co.,  107 

Wis.  441,  §§  3,  5,  9,  16,  34,  48,  143, 

185,  22S. 
State  v.  Portage  Lumber  Co.  (Minn.), 

115  N.  W.  162,  §  261. 
State  v.  Post,  55  N.  J.  L.  264,  §  24. 
State  v.  Poynter,  59  Neb.  417,  §  234. 
State  v.  Pullman  Co.  (Kan.),  90  Pac. 

319,  §  339. 
State  v.  Quayle,  26  Utah,  26,  §  213. 
State  (Rochester)  v.  Racine  County, 

70  Wis.  543,  §  270. 
State  v.  Railroad  Commissioners,  23 

Xeb.  117,  §  407. 
State  v.  Railroad  Commissioners,  38 

Minn.  281,  §  407. 
State  v.  Railway  Company,  128  Wis. 

449,  §  421. 
State  v.  Rayse,  71  Neb.  1,  §  265. 
State  v.  Real  Estate  Bank,   5  Pike 

(Ark.),  595,  §§  1,3,  4,  26,  63,  311, 

363,  486,  488,  489. 
State  v.  Red  River  Valley  Elevator 

Co.,  69  Minn.  131,  §  440. 
State  v.  Reneau  (Neb.),   106  X.  W. 

451,  §  249. 
State   v.    Richcreek,    167    Ind.    217, 

§§18,  69. 
State  v.  Richcreek  (Ind.),  77  N.   I. 

1085,  §  366. 
State  v.  Robinson.  35  Neb.  101,  §  68. 
State  (ex  rel.  Young,  Attorney  Gen- 
eral) v.  Robinson,  112  N.  W.  269, 

§  416. 
State  (McLorinan)  v.  Ryno,  49  N.  .1 

L.  603,  §  288. 
State  v.  Saint,  etc.     See  State  v.  St., 

etc. 


State  v.   Savage,   65   Neb.   714,    91 

N.  W.  716,  §§  26,  44S. 
State   (Harris)   v.  Scarboro,    110   N. 

Car.  232,  §  261. 
State  v.  Schultz  Gas  Fixture  &  A.  M. 

Co.,  83  Md.  58,  §  245. 
State  v.  Scougal,  3  S.  Dak.  55,  §§  1, 

2,  3,  18,  132. 
State  v.  Searey,  20  Mo.  489,  §  366. 
State  (German  Sav.  &  Loan  Soc.)  v. 

Sears,  29  Ore.  580,  §  287. 
State  (ex  rel.  Attorney  General)  v. 

Seattle    Gas    &    Electric    Co.,    28 

Wash.  488,  §§  9,  16. 
State  (ex  rel.  K.  O,  St.  J.  &  C.  R.  R. 

Co.)    v.    Severance,    55    Me.    378, 

§  448. 
State  (ex  rel.  Henson)  v.  Shephard, 

192  Mo.  497,  §§  121,  137,  289. 
State  v.  Simmons  Hardware  Co.,  109 

Mo.  118,  §  231. 
State  v.  Skeggs  (Ala.,  1908),  46  So. 

268,  §§  231,  289. 
State  (Essex  Public  Road  Board)  v. 

Skinkle,  49  N.  J.  L.  641,  §287. 
State  v.  Sloss,  83  Ala.  93,  §  265. 
State  (ex  rel.  Wood)  v.  Smith,   114 

Mo.  180,  §  113. 
State  (Minnesota)  v.  Smith,  58  Minn. 

35,  §  387. 
State  v.  Sorrells,  15  Ark.  664,  §§  219, 

289. 
State    v.    Southern    Bldg.    &    Loan 

Assoc.  (Ala.),  31  So.  375,  §  491. 
State  v.  Southern  Pac.  R.  Co.,   24 

Tex.  SO,  §  311. 
State  v.  Southern  R.  Co.,  122  N.  Car. 

1052,  §  260. 
State  v.  Southern  Ry.  Co.,   141  N. 

Car.  846,  §  156. 
State  v.  Southern  Ry.  Co.  (N.  Car., 

1899),  34  S.  E.  527,  §  284. 
State  (Spartenburg)  v.  Spartenburg, 

('.  &G.  R.  Co.,  51  S.  Car.  129,  §  186. 
State  (Kenner)  v.  Spears  (Tenn.  Ch. 

App.),  53  S.  W.  217,  §  217. 
State  (Grinsfelder)  v.  Spokane  St.  K. 

Co.,  19  Wash.  518,  §§  464,  488. 


CXll 


TABLE    OF   CASES    CITED 


State  v.  Sponangle,  45  W.  Va.  415, 

§297. 
State  (Hadley)  v.  Standard  Oil  Co., 

194  Mo.  124,  §  352. 
State  v.  Standard  Oil  Co.,  61  Neb. 

28,  §  231. 
State  v.  Standard  Oil  Co.,  49  Ohio  St. 

137,  §§11,  51. 
State    (Camden    Gas   Light   Co.)    v. 

State  Comptroller,  54  N.  J.  L.  135, 

§435. 
State  v.  Staten,  6  Coldw.  (46  Tenn.) 

233,  §  21. 
State   (ex  rel.  Marr)   v.  Stearns,  72 

Minn.  200,  §  421. 
State  v.  Stebbins,  1  Stew.  (Ala.)  299, 

§§  11,  18- 

State  v.  Stewart,  52  Neb.  243,  §  232. 
State  v.  Stonewall  Ins.  Co.,  89  Ala. 

338,  §  425. 
State  v.  Stovall,  103  N.  Car.  416,  §  68. 
State    v.    St.    Paul,    Minneapolis    & 

Manitoba  Ry.  Co.,  98  Minn.  380, 

§§  23,  138,  254,  255,  346. 
State  v.  St.  Paul,  M.  &  M.  Ry.  Co. 

(Minn.),    108   N.   W.   261,   §§  366, 

385. 
State  v.  Street,  117  Ala.  203,  §  15. 
State   (Wheeler)   v.  Stuht,   52  Neb. 

209,  §§  234,  245. 
State  v.  Superior  Court  of  Thurston 

County     (Wash.),     85     Pac.     666, 

§§  63,  76. 
State  v.   Sutton,    100   N.   Car.   474, 

§  282. 
State   (Cheyenne)  v.  Swan,   7  Wyo. 

166,  §  234. 
State  v.  Taylor,  7  S.  Dak.  533,  §  240. 
State  v.  Taylor,  119  Tenn.  229,  §  421. 
State  v.  Taylor,  36  Wash.  607,  §§11, 

140,  185,  379. 
State  v.  Terre  Haute  &  Indianapolis 

Rd.  Co.,  166  Ind.  580,  §  136. 
State  v.  Tingey,  24  Utah,  225,  §  217. 
State  (Attorney  General)  v.  Toledo, 

48  Ohio  St.  112,  §  83. 
State  v.  Topeka  Water  Co.,  61  Kan. 

547,  §§  8,  351. 


State  (Safford)  v.  Topeka  Water  Co., 

59  Kan.  151,  §  490. 
State  v.  Travelers'  Ins.  Co.,  73  Conn. 

255,  §§  291,  421. 
State  v.  Travellers'  Ins.  Co.,  70  Conn. 

590,  §§  13,  440. 
State  v.  Turley,  142  Mo.  403,  §  51. 
State  (ex  rel.  Summerfield)  v.  Tyler, 

14  Wash.  495,  §  56. 
State  (Brown)  v.  Union,  62  N.  J.  L. 

142,  §  233. 
State  v.  United  States,  etc.,  140  Ala. 

610,  §  491. 
State  v.  United  States  Express  Co., 

81  Minn.  87,  §  79. 
State  v.  United  States  Express  Co.,  1 

Ohio  N.  P.  259,  §  53. 
State   v.  United   States   Fidelity   & 

Guaranty  Co.  of  Bait.  City,  93  Md. 

314,  §  427. 
State  v.  Walsh,  136  Mo.  400,  §  234. 
State     (Lemngwell)     v.     Warren,     2 

Black  (67  U.  S.),  599,  §  272. 
State  v.   Water  Co.,   61    Kan.   547, 

§§  11,  470. 
State  (Sanche)  v.  Webb,  110  Ala.  214, 

§234. 
State  v.  Western  Irrig.  Canal  Co.,  40 

Kan.  96,  §§  3,  5,  11,  470. 
State  v.  Western  Union  Teleg.  Co. 

(Kan.),  90  Pac.  299,  §§  286,  351, 

356. 
State  (Rogers)  v.  Wheeler,  97  Wis. 

96,  §  269. 
State  v.  Whitaker,  160  Mo.  59,  §  387. 
State   v.    Wilburn    (Ala.,    1905),    39 

So.  816,  §  132. 
State  v.  Woram,  6  Hill  (N.  Y.),  33, 

§64. 
State  v.  Yazoo  &  M.  V.  R.  Co.,  87 

Miss.  679,  §  383. 
State  Bank  v.  Hooper,  2  Yerg.  (10 

Tenn.)  599,  §  231. 
State  Bank  of  Chicago  v.  Carr,  130 

N.  Car.  479,  §  41. 
State   Bank   of   Ohio  v.   Knoop,    16 

How.  (57  U.  S.)  369,  §  438. 
State  Board.    See  also  Board  of. 


TALSLK    OF    CASES    CITED 


CX111 


State  Board  of  Assessors  v.  Central 
Rd.  Co.,  48  N.  J.  L.  140,  §§  8,  12, 
26,  101,  424. 

State  Board  of  Assessors  v.  Patter- 
son (N.  J.),  14  Atl.  610,  §  460. 

State  Board  of  Assessors  v.  Plain- 
field  Water  Supply  Co..  67  N.  J.  L. 
357,  §  187. 

State  Board  of  Equalization  v. 
People,  191  111.  528,  §  425. 

State  Freight  Tax  Cases,  15  Wall. 
(82  U.  S.)  232,  §§  402,  404. 

State  National  Bank  v.  Memphis,  116 
Tenn.  641,  §§  234,  456. 

State  Railroad  Commission.  See  also 
Commissions;  Railroad  Commis- 
sion. 

State  Railroad  Commission  v.  West- 
ern l"::ion  Teleg.  Co.,  113  N.  Car. 
213,  §  390. 

State  Railroad  Tax  Cases  (see  Rail- 
road Tax  Cases),  92  U.  S.  575, 
§§  5,  13,  272,421,447,448. 

Staten  Island  Midland  R.  Co.  v. 
Staten  Island  Electric  R.  Co.,  54 
X.  Y.  Supp.  598,  §  4. 

State  Tide-water  Pipe  Line  Co.  v. 
Berry,  52  N.  J.  L.  308,  §  12. 

Staunton,  City  of,  v.  Mary  Baldwin 
Seminary,  99  Va.  653,  §  454. 

Steamboat  Co.  v.  Collector,  IN  Wall. 
(85  U.  S.)  478,  §  282. 

Steamship  Co.  v.  Joliffe,  2  Wall.  (69 
U.  S.)  450,  §§  282,  306. 

Stearns  v.  Minnesota,  179  I".  S.  223, 
§459. 

Stedman  v.  Merchants'  &  P.  Bank, 
69  Tex.  50,  §  265. 

Steele  v.  County  Commissioners,  83 
Ala.  304,  §  220. 

Steele  County  v.  Erskinc,  98  Fed. 
215,  §  288. 

Steenerson  v.  Great  Northern  R.  Co., 
69  Minn.  353,   §  171. 

Stcere  v.  Brownell,  121  III.  27, 
§  249. 

Stehmeyer  v.  Charleston  ■'>■'■  >.  Car. 
259,  $  L49. 


Stein  v.  Bienville  Water  Supply  Co.. 
141  U.  S.  67,  §§  23,  254,  255. 

Stein  v.  McCrath,  128  Ala.  175,  §  347. 

Stein  v.  Morrison,  9  Idaho,  426, 
§§  223,  269. 

Stephens  v.  Texas  &  Pac.  Ry.  Co. 
(Tex.  Sup.),  97  S.  W.  309,  §  425. 

Stevens  v.  Lake  George  &  M.  R.  Co., 
82  Mich.  426,  §  244. 

Stevens  County  v.  St.  Paul,  M.  &  M. 
R.  Co.,  36  Minn.  467,  §  349. 

Stewart  v.  Hardin  County  Agricul- 
tural Soc.  Commrs.  (Dist.  Ct.),  7 
Am.  Law  Rec.  668,  §  68. 

Stewart  v.  Hargrove,  23  Ala.  429, 
§26. 

Stewart  v.  Vandervort,  34  W.  Va. 
524,  §  287. 

Stillwell  v.  Jackson,  77  Ark.  250, 
§  231. 

.Stockton  v.  Baltimore  &  N.  Y.  R. 
Co.,  32  Fed.  9,  §  127. 

Stockton  &  V.  R.  R.  Co.  v.  City  of 
Stockton,  41  Cal.  147,  §§  231,  289. 

Stockton  Gas  &  Electric  Co.  v.  San 
Joachin  County,  148  Cal.  oil, 
§§  26,  440. 

Stone  v.  Bank  of  Kentucky,  174 
V.  S.  799,  §  330. 

Stone  v.  Farmers'  Loan  &  Tr.  Co. 
(see  Railroad  Commission  Cases), 
116  U.  S.  307,  §§  167,  381,  391, 
398,  400,  401,  403,  412. 

Stone  v.  Illinois  Central  Rd.  Co.,  116 
U.  S.  347,  §§  167,  381. 

Stone  v.  Mississippi,  101  U.  S.  814, 
§§  29S,  312. 

Stone  v.  New  Orleans  &  North- 
western Rd.  ( !o.  (see  Railroad  Com- 
mission Cases),  116  U.  S.  352. 
§§  167,  381,  398. 

Stone  v.  Southern  Illinois  &  Missouri 
Bridge  Co.,  206  U.  S.  267,  §§184, 
270. 

Stone  v.  Wisconsin,  91  C.  S.  181, 
§§  1D7.  381,  391. 

Stone  v.  Yazoo  &  M.  Y.  R.  Co.,  62 
Miss.  607,  5  112. 


Vlll 


CX1V 


TABLE    OF   CASES    CITED 


Storrie  v.  Cortes,  90  Tex.  283,  §  306. 
Story  v.   Indiana   Hydraulic   Power 

Co.  (Ind.),  76  N.  E.  1057,  §  76. 
Stowe  v.  Citizens'  Natural  Gas  Co., 

23  Pa.  Co.  Ct.  R.  273,  §  472. 
Stowe  v.  Town  of  Kearney,  72  N.  J. 

L.  106,  §§  196,  203. 
Straight  v.  Crawford,  73  Iowa,  676, 

§  283. 
Strasburger  v.  Dodge,  12  App.  D.  C. 

37,  §  269. 
Stratford  v.  Greenboro,  124  N.  Car. 

127,  §  63. 
Stratton  v.  Morris,  5  Pick.  (89  Tenn. 

497),   §  289. 
Strickler  v.  City  of  Colorado  Springs, 

16  Colo.  61,  §  215. 
Strickley    v.     Highland     Boy     Gold 

Min.  Co.,   200  U.   S.   527,   §§  272, 

275. 
Strike  v.  Wisconsin  Odd  Fellows  Mut. 

L.  Ins.  Co.,  95  Wis.  583,  §  287. 
Stuart  v.  Laird,  1  Cranch  (5  U.  S.), 

299,  §  218. 
Stump    v.    Hornback,    94    Mo.    26, 

§265. 
Sturdivant  v.  Tallette  (Ark.,   1907), 

105  S.  W.  1037,  §  229. 
Sturges  v.  Stetson,    1   Biss.    (('.   C.) 

246,  §  425. 
Stutsman    County    v.    Wallace,    142 

U.  S.  293,  §§  269,  272,  273. 
Suburban  Elect.  Light  &  Power  Co. 

v.  Inhabitants  of  East  Orange,  59 

N.  J.  Eq.  563,  §  379. 
Suburban  Rapid  Transit  Co.  v.  New 

York,  128  N.  Y.  510,  §  306. 
Suburban  Rapid  Transit  Co.  v.  West 

Side    El.    R.    Co.,    193    111.    217, 

§111. 
Sugden  v.  Partridge,   174  N.  Y.  87, 

§§  231,  233. 
Sullivan  v.  Lear,  23  Fla.  463,  §§  12, 

17,  39. 
Sully    v.    American    Nat.    Bk.,    178 

U.  S.  289,  §  292. 
Sun  Life  Ins.   Co.   v.   Phillips   (Tex. 

Civ.  App.),  70  S.  W.  603,  §  300. 


Sun   Printing  &  Publishing  Assn.  v. 

Mayor,  etc.,  of  New  York,  152  N. 

Y.  257,  §  186. 
Supervisors.     See  Board  of. 
Supervisors  of  Niagara  v.  People,  7 

Hill  (N.  Y.),  504,  §  11. 
Swan  v.  Williams,  2  Mich.  (1  Gibbs) 

427,  §§  51,  55. 
Swartz  v.  Siegel,  117  Fed.  13,  §  237. 
Swayze  v.  City  of  Monroe,  116  La. 

643,  §  92. 
Sweeney  v.  Otis,  37  La.  Ann.  520, 

§17. 
Sweet  v.  Syracuse,   129  N.  Y.  337, 

§  288. 
Sweetland    v.    Atchison,    Topeka    & 

Santa   Fe   R.    Co.,    22   Colo.    220, 

§  300. 
Swing  v.  Western  Lumber  Co.,  205 

U.  S.  275,  §§  281,  352,  354. 
Syracuse  Water  Co.  v.  City  of  Syra- 
cuse,   116    N.  Y.  167,  §§  23,  254, 

265. 


Tabor  v.  Commercial  National  Bank, 

62  Fed.  3S3,  §  245. 
Taft  v.  Ward,  106  Mass.  518,  §  52. 
Talcott  v.  Township  of  Pine  Grove,  1 

Flipp  (U.  S.  C.  C),  120,  §§  1,  15, 

17,  100,  107,  272. 
Talladega   Ins.   Co.    v.    Landers,   43 

Ala.  115,  §  350. 
Tamaqua  &  L.  St.  R.  Co.  v.  Inter 

County  St.   R.   Co.,    167   Pa.   91, 

§  379. 
Tammany    Water    Works    v.    New 

Orleans  Water  Works,   120  U.  S. 

64,  §§  16,  313. 
Tampa  v.  Kannitz,  39  Fla.  687,  §  453. 
Tampa  v.  Tampa  Water  Works  Co. 

(Fla.),  34  So.  631,  §  226. 
Tampa  Water  Works  Co.  v.  Tampa, 

199  U.  S.  241,  §  395. 
Tate  v.  Bell,  4  Yerg.  (12  Tenn.)  202, 

§231. 
Taten  v.  Wright,  23  N.  J.  L.  429,  §  67.    * 
Tax  Commissioners.    See  Board  of. 


TABLE    OF    CASES    CITED 


CXV 


Taylor  v.  Empire  State  Sav.  Bank, 

66  Hun,  540,  §  270. 
Taylor  v.  Taintor,  10  Wall.  (83  U.  S.) 

366,  §  416. 
Taylor  v.  Western  Union  Teleg.  Co., 

95  Iowa,  740,  §  376. 
Tazewell  v.  Hermann  (Va.),  60  S.  E. 

767,  §§  205,  208. 
Telegraph    Co.    v.    Texas    Co.,     105 

U.  S.  460,  §  404. 
Telluride   Power  Trans.   Co.   v.   Rio 

Grande  Western  Ry.  Co.,  187  U.  S. 

569,  §  281. 
Temmick   v.    Owings,    70   Md.    246, 

§231. 
Ten   Eyck   v.    Delaware   &   Raritan 

Canal  Co.,  18  N.  J.  L.  200,  §§  61, 

63,  72. 
Tennessee  v.  Whitworth,   117  U.  S. 

129,    §§  20,    205,     241,    454,    479, 

482. 
Terre  Haute  &  Indianapolis  R.  Co. 

v.  Cox,  102  Fed.  825,  §  473. 
Terre  Haute  &  Indianapolis  R.  Co.  v. 

Ketcham,  194  U.  S.  579,  §  276. 
Terrel  v.  Taylor,  9  Cranch  (13  U.  S.), 

43,  §  69. 
Terrell  v.  State,  86  Tenn.  523,  §  283. 
Terrett  v.  Taylor,  9  Cranch  (13  U.  S.), 

43,  §  488. 
Tesch    v.    Milwaukee    Elect.    R.    & 

Light  Co.,  108  Wis.  593,  §  12. 
Texarkana  &  Ft.  Smith  Ry.  Co.   v. 

Parsons,  74  Fed.  411,  §  127. 
Texarkana  &  Ft.  Smith  Ry.  Co.  v. 

Texas  &  N.  O.  R.  Co.  (Tex.  Civ. 

App.),  67  S.  W.  525,  §  344. 
Texas  v.  White,  7  Wall.  (74  U.  S.) 

700,  §  142. 
Texas  &  Pacific  Ry.  Co.  v.  Interstate 

Commerce  Commission,  162  U.  S. 

197,  §§  153,403,413. 
Texas  Express  Co.  v.  Texas,  6  Fed. 

126,  §  79. 
Third  Ave.  R.  Co.,  Matter  of,  121  N. 

Y.  536,  §  183. 
Third    National    Bank,    Louisville,   v. 

Stone,  171  U.S.   132,  §439. 


Thomas  v.  Dakin,  22  Wend.  (N.  Y.) 

71,  §§  8,  38,  49,  51,  57. 
Thomas  v.  Dakin,  20  Wend.  (N.  Y.) 

9,  §  348. 
Thomas  v.  Lee  County,  3  Wall.  (70 

U.  S.)  327,  §  288. 
Thomas  v.  Railroad  Co.,  101  U.  S.  71, 

§§  42,  464,  467,  472,  473. 
Thomas  v.  West  Jersey  Rd.  Co.,  101 

U.  S.  71,  §§  63,  97. 
Thomas    v.    Williamson    (Fla.),    40 

So.  831,  §§  136,  137. 
Thompson  v.  Lambert,  44  Iowa,  239, 

§68. 
Thompson  v.  M'Connell,  107  Fed.  33, 

§272. 
Thompson  v.  People,  23  Wend.  (N. 

Y.)  537,  §  311. 
Thompson   v.   Schenectady   R.    Co., 

124   Fed.    274,    §§12,   14,   26,   34, 

111. 
Thompson  v.  Waters,  25  Mich.  214, 

§51. 
Thompson-Houston  Elect.  Light  Co. 

v.   City  of  Newton,  42  Fed.  723, 

§11. 
Thompson-Houston    Electric   Co.    v. 

Simon,  20  Ore.  60,  §§  74,  111. 
Thomson  v.  Lee  County,  3  Wall.  (70 

U.  S.)  327,  §  259. 
Thorpe  v.  Rutland  &  Burlington  R. 

Co.,  27  Vt.  140,  §§  14,  17,  289. 
Thousand  Islands  Steamboat  Co.  v. 

Visgar,  83  N.  Y.  Supp.  325,  §  119. 
Thurston  v.  Huston,  123  Iowa,  157, 

§  286. 
Thurston  County  v.  Sisters  of  Char- 
ity, 14  Wash.  264,  §§  412,  455. 
Tillamook   Water  Co.   v.   Tillamook 

City,  139  Fed.  405,  §  16. 
Tillis  v.  Liverpool  &  London  &  Globe 

Ins.  Co.  (Fla.,   1903),  35  So.  171, 

§  300. 
Tindall  v.  Wesley,   167  U.   S.   204, 

§416. 
Tin-man  v.  Belvidere  Delaware  Rd. 

Co.,   26    N.  J.  L.   148,   §§  55,    62, 

69. 


CXV1 


TABLE    OF   CASES    CITED 


Tippecanoe  County,  Board  of  Com- 
missioners of,  v.  Lafayette,  Muncie 

&  Bloomington  Rd.  Co.,  50  Ind. 

85,  §  51. 
Tippecanoe      County,       Board      of 

Commrs.  of,  v.  Lucas,  93  U.  S.  108, 

§56. 
Titusville   Iron   Works   v.   Keystone 

Oil  Co.,  122  Pa.  627,  §  234. 
Tod  v.  Kentucky  Union  Land  Co.,  57 

Fed.  47,  §  481. 
Toledo  v.  Northwestern  Ohio  Natu- 
ral   Gas  Co.,   5   Ohio   C.   C.    557, 

§83. 
Toledo  Bank  v.  Bond,  1  Ohio  St.  622, 

§§4,22,60,236,311. 
Toledo,  Bank  of,  v.  City  of  Toledo,  1 

Ohio  St.  622,   §§  22,   23,   60,   236, 

254. 
Toledo,  City  of,  v.  Northwestern  Ohio 

Natural  Gas  Co.,  6  Ohio  N.  P.  351, 

§311. 
Toledo  Electric  St.  Ry.  Co.  v.  West- 
ern  Light   &   Power   Co.,    4   Ohio 

C.  D.  43,  §  76. 
Toledo,  St.   L.   &  K.  C.  R.  Co.   v. 

Continental  Trust  Co.,  95  Fed.  497, 

§477. 
Toledo,  W.  &  W.  Ry.  Co.  v.  City  of 

Jacksonville,  67  111.  37,  §  366. 
Tollepson   v.   Ottawa,    228   111.    134, 

§56. 
Tomlinson  v.  Branch,   15  Wall.   (82 

U.  S.)  460,  §§  453,  481,  482. 
Tomlinson  v.   Jessup,    15   Wall.    (82 

U.  S.)  454,  §  458. 
Toncray  v.  Budge  (Idaho),  92  Pac. 

26,  §  216. 
Topeka   v.    Topeka    Water   Co.,    58 

Kan.  349,  §  487. 
Topeka,  City  of,  v.  Raynor,  61  Kan. 

10,  §  245. 
Topping  Avenue,  In  re,  187  Mo.  146, 

§349. 
Towanda  Bridge  Co.,  In  re,  91   Pa. 

216,  §  19. 
Tower  v.  Tower  &  S.  Street  Ry.  Co., 

68  Minn.  500,  §  488. 


Towle  v.  American  Bldg.,  Loan  &  In- 
vestment Soc,  61  Fed.  446,  §  71. 
Town.     See  name  of. 
Townsend  Gas  &  Elec.  Co.  v.  Hill,  24 

Wash.  469,  §  231. 
Township.     See  name  of. 
Township  of  Pine  Grove  v.  Talcott, 

19  Wall.  (86  U.  S.)  666,  §§  15,  272. 
Tracy  v.  Tuffy,  134  U.  S.  206,  §§  282, 

283. 
Trade.     See  Board  of. 
Traders'  National  Bank  v.  Lawrence 

Mfg.  Co.,  96  N.  Car.  298,  §  250. 
Tradesman  Publishing  Co.  v.  Knox- 

ville  Car  Wheel  Co.,  11  Pick.  (95 

Tenn.)  634,  §  425. 
Transportation  Company  v.  Parkers- 
burg,  107  U.  S.  691,  §  17. 
Trask  v.  Mahuire,  18  Wall.  (85  U.  S.) 

391,  §  479. 
Travelers'  Ins.  Co.  v.  Fricke,  94  Wis. 

258,  §  262. 
Trezza  v.  Bush,  142  U.  S.  160,  §  289. 
Tripp  v.  Frank,  4  Term.  666,  §  15. 
Tripp  v.  Pontiac  &  L.  Plank  Road 

Co.,  66  Mich.  1,  §  324. 
Trott  v.  Warren,  2  Fairf.   (11  Me.) 

227,  §  350. 
Truckee   &   Tahoe  Turnpike  Co.   v. 

Campbell,  44  Cal.  80,  89,  §§  1,  3, 

17,  148,  199. 
Trunk  R.  Co.  v.  Richardson,  91  U.  S. 

454,  §  472. 
Trustees     of    Davidson     College    v. 

Chambers,  56  N.  Car.  253,  §  311. 
Trustees  of  Exempt  Firemen's  Ben. 

Fund  v.  Roome,  93  N.  Y.  313,  §  24. 
Trustees     of     Freeholders,     etc.,     of 

Southport  v.  Jessup,  162  N.  Y.  122, 

§  311. 
Trustees  of  Schools  v.  Tatman,  13  ill. 

27,  §  56. 
Trustees  of  Southampton  v.  Jessup, 

162  N.  Y.  122,  §§  2,  3,  15,  23,  36, 

48,  198. 
Tuckahoe  Canal  Co.  v.  Tuckahoe 

Ry.  Co.,  11  Leigh  (Va.),  42,  §§  3,  8, 

11,  15,  17,  22. 


TABLE    OF   CASES   CITED 


CXV11 


Tucker   v.   Constable,    16   Ore.    407, 

§264. 
Tucker  v.   Ferguson,    22   Wall.    (89 

U.  S.)  527,  §§  455,  460. 
Tugwell  &  Madison  v.  Eagle  Pass. 

Ferry   Co.,    74   Tex.    450,    §§  144, 

17S. 
Tullis  v.  Lake  Erie  &  Western  R.  Co., 

175  U.  S.  348,  §§  298,  300. 
Turlock  Irrig.  Dist.  v.   Williams,   76 

Cal.  360,  §  88. 
Turner  v.   Interstate  Bldg.   &  Loan 

Assoc,  51  S.  Car.  33,  §  287. 
Turner   v.    Revere    Water   Co.,    171 

Mass.  329,  §  390. 
Turnpike  Co.  v.  Parks,  50  Ohio  St. 

568,  §  26. 
Turnpike  Co.  v.  State,  3  Wall.   (70 

U.  S.)  210,  §§  23,  254. 
Turnpike  Co.   v.   Wallace,   8   Watts 

(Pa.),  316,  §§  56,  116. 
Tuscaloosa  County  v.  Foster,  134  Ala. 

392,  §  15. 
Tuttle  v.  Brush  Elec.  Ilium.  Co.,  50 

X.  Y.  Super.  Ct.  464,  §§  11,  76. 
Twelfth  St.  Market  Co.  v.  Philadel- 
phia &  Reading  Term.  Co.,  142  Pa. 

580,  §§  1,  3,  4,  24,  92,  113,  122. 
Twin  Village  Water  Co.  v.  Damaris- 

cotta  Gas  Light  Co.,  98  Me.  325, 

§  47. 
Tyson  v.  Washington  County  (Nev., 

1907),  110  N.  W.  634,  §§  135,  136, 

171. 

U. 

Ulbrecht    v.    City    of    Keokuk,    124 

Iowa,  1,  §  215. 
Ulmer  v.  Lime  Rock  R.  Co.,  98  Me. 

579,  §§  11,  103,  464,  486,  488,  490. 
Underwood   Lumber  Co.   v.    Pelican 

Boom  Co.,  76  Wis.  76,  §  90. 
Underground  Railroad  of  the  City  of 

New  York  v.  City  of  New  York,  193 

U.S.  416,  §§  177,  332. 
Underground  Railroad  of  the  City  of 

New  York  v.  New  York  City,  116 

Fed.  952,  §  190. 


Union   Bank   v.   Richmond,    94   Ya. 

316,  §  440. 
Union  Bank  v.  State,  9  Yrerg.  (Tenn.) 

4S9,  §  425. 
Union  Bridge  Co.  v.  United  States, 

204  U.  S.  365,  §§  151,  152. 
Union  College,  In  re,  129  N.  Y.  308, 

§  287. 
Union  County  Board  v.  Short,  77  111. 

App.  448,  §  238. 
Union  Elevator  Co.  v.  Kansas  City 

Suburban  B.  R.  Co.  (Mo.),  33  S.  W. 

929.  §  89. 
Union  Ferry  Co.,  Matter  of  Applica- 
tion of,  98  N.  Y.  139,  §  24. 
Union  Mutual  Bldg.  Assoc,  v.  Aichele, 

28  Ind.  App.  69,  §  71. 
Union  Pacific  Ry.  Co.  v.  Cheyenne, 

113  U.  S.  516,  §§  285,  448. 
Union  Pacific  Ry.  Co.  v.  Chicago,  R. 

I.   &    P.    R.  Co.,   164  U.  S.   564, 

§  467. 
Union   Pacific   Ry.   Co.   v.   Commis- 
sioners of  Colfax  County,  4  Neb. 

450,  §  15. 
Union  Pacific  Ry.  Co.  v.  Mason  City 

&  Fort  Dodge  Rd.  Co.,  199  U.  S. 

160,  §§  416,  478. 
Union  Pacific  Ry.  Co.  v.  Mason  City 

&  Fort  Dodge  R.  Co.,  128  Fed.  230, 

§  319. 
Union  Pacific  Ry.  Co.  v.  Sprague,  69 

Neb.  48,  §§  245,  246. 
Union    Pacific    Ry.    Co.    v.    United 

States,  99  U.  S.  700,  §§319,  321, 

391,  400. 
Union    Pacific    Ry.    Co.    v.    United 

States.    See  Sinking  Fund  Cases. 
Union    Refrigerator   Transit    Co.    v. 

Lynch,  18  Utah,  378,  §440. 
Union  St.  Rd.  Co.  v.  Snow,  113  Mich. 

694,  *  337. 
Qniontown,    City    of,    v.   State,    145 

\h.   171,  §  21. 
Uniontown,  City  of,  v.  State  (Ala., 

1905),  ■■','^».  81  I,  §  132 
Union  Traction   Co.  v.  Chicago,  199 

111.484,  §41. 


CXV111 


TABLE    OF   CASES    CITED 


Union  Traction  Co.  v.  City  of  Water- 

vliet,  71  N.  Y.  Supp.  977,  §  387. 
Union  Trust  Co.  v.  Atchison,  Topeka 

&  S    F.    R.    Co.,    8    N.    M.    327, 

§469. 
Union  Water  Co.  v.  Kean,  52  N.  J. 

Eq.  Ill,  §§  11,21. 
Union  Water  Power  Co.  v.  Auburn, 

90  Me.  71,  §  440. 
United  Electric  Co.   v.  City  of  Ba- 

yonne  (N.  J.),  63  Atl.  996,  §  485. 
United  Mines  Co.  v.  Hatcher  (C.  C), 

79  Fed.  517,  §  287. 
United  New  Jersey  R.  &  Canal  Co.  v. 

Parker,  (Err.    &    App.,    1908),  69 

Atl.  239,  §  421. 
United    States    v.    Alabama    Great 

Southern  R.   Co.,   142  U.   S.   615, 

§  262. 
United  States  v.  Amedy,  11  Wheat. 

(24  U.  S.)  392,  §  65. 
United    States    v.    American    Sugar 

Ref.  Co.,  202  U.  S.  563,  §  287. 
United  States  v.  Arredondo,  6  Pet. 

(31  U.S.)  691,  §  254. 
United  States  v.  Atchison,  Topeka  & 

Santa  Fe  Ry.  Co.,   142  Fed.   176, 

§287. 
United  States  v.  Averill,   130  U.  S. 

335,  §  270. 
United  States  v.  Babbit,  1  Black  (66 

U.  S.),  55,  §  265. 
United  States  v.  Bale,  156  Fed.  687, 

§  152. 
United  States  v.  Benson,  31  Fed.  896, 

§265. 
United  States  v.  Binns,  1  Alaska,  553, 

§130. 
United  States  v.  Bliss,  12  App.  D.  C. 

485,  §  262. 
United  States  v.  Bowen,   100  U.  S. 

508,  §  270. 
United  States  v.  Carbery,  2  Cranch 

(C.  C),  358,  §  221. 
United  States  v.  Cassidy,  67  Fed.  698, 

§  367. 
United  States  v.  Chicago  &  A.  Ry, 

Co.,  148  Fed  646,  §  17. 


United  States  v.  Chicago,  P.  &  St.  L. 

Ry.  Co.,  143  Fed.  353,  §  385. 
United  States  (Search)  v.  Choctaw, 

O.  &  G.  R.  Co.,  3  Okla.  404,  §§  96, 

341. 
United  States  v.  Cincinnati  &  Mus- 
kingum Valley  Ry.  Co.,  134  Fed. 

353,  §  127. 
United  States  v.  Claflin,  97  U.  S.  546, 

§§  282,  283. 
United  States  v.  Colorado  &  N.  W.  R. 

Co.,  157  Fed.  321,  §§  237,  238,  262, 

267,  402. 
United  States  v.  Coombs,  12  Pet.  (37 

U.  S.)  72,  §  233. 
United    States    v.    Cruikshanks,    92 

U.  S.  542,  §  289. 
United  States  v.  Dastervignes,   118 

Fed.  190,  §  151. 
United     States    v.   Denver    &     Rio 

Grande  R.  Co.,  150  U.  S.  1,  §§  241, 

256. 
United  States  v.  Finnell,  185  U.  S. 

236,  §  262. 
United  States  v.  Fisher,  2  Cranch  (6 

U.S.),  358,  §§  236,244. 
United  States  v.  Freeman,  3  How.  (44 

U.  S.)  556,  §§  251,  265. 
United    States    v.    Goldenberg,    168 

U.  S.  95,  §§  236,  239. 
United    States    v.    Great    Northern 

Ry.    Co.,    145    Fed.   438,    §§  385, 

402. 
United  States  v.  Heth,  3  Cranch  (7 

U.  S.),  399,  §§  254,  287. 
United    States    v.    Insurance    Com- 
panies,   22  Wall.    (89   U.    S.)    99, 

§  142. 
United  States  v.  Jackson,  143  Fed. 

783,  §  249. 
United  States  v.  Johnston,  124  U.  S. 

236,  §  262. 
United  States  v.  Joint  Traffic  Assoc, 

171  U.  S.  505,  §  106. 
United  States  v.  Jones,  109  U.  S.  513, 

§155. 
United  States  v.  Keitel  (D.  C),  157 

Fed.  396,  §  152. 


TABLE    OF   CASES    CITED 


CX1X 


United  States  v.  Keokuk  &  Hamilton 

Bridge  Co.  (Dist.  Ct.),  45  Fed.  178, 

§§  127,  152. 
United  States,  Koechlin,  v.  Marble,  2 

Mackey  (D.  C),  12,  §  265. 
United  States  v.  Lacher,  134  U.  S. 

624,  §  270. 
United  States  v.  Lee,  106  U.  S.  196, 

§416. 
United  States  v.  Lee  Yen  Tai,  185 

U.  S.  213,  §  283. 
United  States  v.  Lewis,  200  U.  S.  1, 

§416. 
United  States  v.  Louisville  &  Port- 
land Canal  Co.,  1  Flipp.  (U.  S.)  260, 

§340. 
United  States  v.  Maid,  116  Fed.  650, 

§151. 
United  States  v.  Matthews  (D.  C), 

146  Fed.  306,  §  152. 
United  States  v.  Milwaukee  Refrig- 
erator Co.,  142  Fed.  247,  §  11. 
United  States  v.  Moline  (D.  C),  82 

Fed.  592,  §  152. 
United  States  v.  Northern  Pacific  Rd. 

Co.,  193  U.  S.  1,  §  129. 
United  States  v.  Northern  Pac.  R. 

Co.,  177  U.S.  435,  §341. 
United   States   v.    Northern    Pacific 

Terminal  Co.,  144  Fed.  861,  §  385. 
United  States  v.  Northern  Securities 

Co.,  120  Fed.  721,  §  136. 
United  States  v.  Oregon  &  California 

Rd.  Co.,  176  U.  S.  28,  §  129. 
United  States  v.  Oregon  &  C.  R.  Co., 

57  Fed.  426,  §  262. 
United  States  v.  Ormsbee  (D.  C),  74 

Fed.  207,  §  152. 
United  States  v.   Palmer,  3  Wheat. 

(16  U.S.)  610,  §§221,211. 
United  States  v.  Pugh,  99  U.  S.  265, 

§  262. 
United  States  v.  Rickert,  1S8  U.  S. 

438,  §  120. 
United  States  v.  Rider  (D.  O),  50 

Fed.  400,  §  152. 
United  States  v.  St.  Anthony  Rd.  Co., 

192  U.S.  521,  §  251. 


United  States  v.  Saunders,  22  Wall. 

(89  U.  S.)  492,  §  239. 
United  States  v.  Shannon  (C.  O),  151 

Fed.  863,  §  152. 
United  States  v.  Southern  Pacific  Rd. 

Co.,  184  U.  S.  49,  §  129. 
United  States  v.  Stanford,  161  U.  S. 

412,  §  124. 
United  States  v.  Stanford,  70  Fed. 

346,  §  123. 
United  States  v.  Tenn.  &  C.  R.  Co., 

176  U.  S.  242,  §§  129,  341. 
United     States     v.     Trans-Missouri 

Freight  Assoc,  166  U.  S.  290,  §§  97, 

216,  245,  262,  287,  403. 
United     States     v.     Trans-Missouri 

Freight  Assoc,  58  Fed.  58,  §  265. 
United     States     v.     Trans-Missouri 

Freight  Assoc,  53  Fed.  440,  §  22. 
United  States  v.  Union  Bridge  Co., 

143  Fed.  377,  §§  147,  152. 
United  States  v.  Union  Pacific  Ry. 

Co.  &  Western  Union  Teleg.  Co., 

100  U.  S.  1,  §§  321,  469. 
United  States  v.  Union  Pacific  Ry. 

Co.,  98  U.  S.  569,  §§  230,  486. 
United  States  v.  Union  Pacific  Ry. 

Co.,  91  U.  S.  72,  §§  216,  220,  244, 

262. 
United  States  v.  Union  Pacific  Ry. 

Co.,  37  Fed.  551,  §  244. 
United  States  v.   Walker,   22   How. 

(63  U.  S.)  299,  §  265. 
United    States    v.    Western    Union 

Teleg.  Co.,  70  Fed.  28,  §§  321,  469. 
United    States   v.    Wong   Kim,    169 

U.S.  649,  §  212. 
United  States  Bank  v.  Dandridge,  12 

Wheat.    (25  U.  S.)   64,    §§  11,   18, 

350. 
United  States  Capsule  Co.  v.  Isaacs, 

23  In.!.  Anp.  533,  §464. 
United  States  Electric  L.  Co.  v.  Ross, 

9App.  D.C.  558,  §  257. 
United    States    Illuminating    Co.    v. 

3  V  Y.  Supp.  777,  §  19. 
United  States  Life  Ins.  Co.  v.  Cable, 

98  Fed.  707,  §  355. 


>'\\ 


TABLE    OF    CASKS    CITED 


Unity   v.    Burrage,    103    U.   S.    447, 

§§  247,  284. 
University  v.  People,  99  U.  S.  309, 

§460. 
Urquhart  v.  Brown,  205  U.  S.  179, 

§416. 
Utah,  N.  &  C.  R.  Co.  v.  Utah  &  C. 

Ry.  Co.,  110  Fed.  879,  §  486. 
Utica,  City  of,  v.  Utica  Teleph.  Co., 

24  N.  Y.  App.  Div.  361,  §  140. 
Utley  v.  Clark-Guardian  Lode  Min. 

Co.,  4  Colo.  369,  §  51. 
Utsy  v.  Hiott,  30  S.  Car.  360,  §  234. 


Van  Allen  v.  Assessors,  3  Wall.   (70 

U.  S.)  573,  §  425. 
Vance  v.  W.  A.  Vandercook  Co.,  170 

U.  S.  438,  §  370. 
Vanceburg  &  S.   L.  Turnpike  Road 

Co.  v.  Maysville  &  B.  S.  R.  Co.,  25 

Ky.  L.  Rep.  1404,  §  421. 
Vandyke    v.    City    of    Cincinnati,    1 

Disn.  532,  §  387. 
Van  Epps  v.  Same,  84  App.  Div.  91, 

§33. 
Van  Hook  v.  City  of  Selma,  70  Ala. 

361,  §  366. 
Vanhorne   v.   Dorrance,    2    Dall.    (2 

U.  S.)  304,  §§  204,  252. 
Van  Matre  v.  Sankey,   148  111.  536, 

§271. 
Van  Pelt  v.  Gardner,   54  Neb.  701, 

§  282. 
Van  Slyke  v.  Wisconsin,   154  U.  S. 

581,  §  439. 
Van  Steuben  v.  Central  R.  Co.,  178 

Pa.  367,  §  472. 
Veazie  Bank  v.  Fenno,  8  Wall.   (75 

U.  S.)  533,  §§  26,  126. 
Vega  Steamship  Co.  v.  Consolidated 

Elevator  Co.,  75  Minn.  308,  §  299. 
Veginan   v.    Morse,    160   Mass.    143, 

§  173. 
Venner   v.   Farmers'    Loan   &   Trust 

Co.,  90  Fed.  348,  §  478. 
Vermont  Loan  &  Trust  Co.  v.  Whit- 
bed,  2  N.  Dak.  82,  §  239. 


Vicksburg  v.  Vicksburg  Water  Works 

Co.,  202  U.  S.  453,  §  477. 
Victoria  County  v.  Victoria  Bridge, 

68  Tex.  62,  §  257. 
Victoria   Lumber  Co.   v.   Rives,   115 

La.  996,  §  218. 
Viemeister  v.  White,  84  N.  Y.  Supp. 

712,  §  261. 
Village  of  Champlain  v.  McCrea,  165 

N. Y.  264,  §  282. 
Village  of  London  Mills  v.  Fairview- 

London   Teleph.    Circuit,    105   111. 

App.  146,  §  314. 
Village  of  London  Mills  v.  White,  208 

111.  289,  §§  33,  314. 
Village  of   Phoenix  v.   Gannon,    108 

N.  Y.  Supp.  255,  §  344. 
Village  of  Portchester,  In  re  Locust 

Ave.,  97  N.  Y.  Supp.  508,  §  283. 
Village  of  Saratoga  Springs  v.  Sara- 
toga Gas,  Electric  Light  &  Power 

Co.,  191  N.  Y.  123,  §  160. 
Vilter  Mfg.  Co.  v.  Milwaukee,  Burling- 
'    ton  &  Lake  Geneva  Rd.  Co.,  116 

Wis.  142,  §  16. 
Vincennes  v.  Citizens'  Gas  Light  Co., 

132  Ind.  114,  §  257. 
Vindicator  Consol.  Gold  Mining  Co.  v. 

Firstbrook,  36  Colo.  498,  §  300. 
Vink  v.  Work,  158  Ind.  638,  §  86. 
Virginia  Canon  Toll  Road  Co.  v.  Peo- 
ple, 22  Colo.  429,  §§  8,  17. 
Virginia   Coupon   Cases    (Poindexter 

v.    Greenhow),     114    U.    S.    270, 

§416. 
Virginia   Passenger  &  Power  Co.   v. 

Commonwealth,  103  Va.  644,  §  398. 
Visalia  Gas  &  E.  L.  Co.  v.  Sims,  104 

Cal.  326,  §§  472,  473. 
Voigt  v.  Kersten,  164  111.  314,  §  287. 
Von  Hoffman  v.  City  of  Quincy,  4 

Wall.  (71  U.  S.)  535,  §  334. 

W. 
Wabash  Electric  Co.  v.  City  of  Wy- 

more,  60  Neb.  199,  §  390. 
Wabash  R,.  Co.  v.  Defiance,  167  U.  S. 

ss,  §  381. 


TABLE    OF    CASES    CITED 


CXX1 


Wabash,  St.  L.  P.  Ry.  Co.  v.  Illinois. 

118  U.S.  557,  §§  391,400. 
Wabash,  St.  Louis  &  Pacific  Ry.  Co. 

v.  Binkert,  106  111.  208,  §§  238,  239, 

266. 
Wade  v.  Atlantic  Lumber  Co.  (Fla.), 

41  So.  72,  §§  245,  247. 
Wadsworth    v.    Eau    Claire    County 

Supervisors,  102  U.  S.  534,  §  316. 
Wadsworth  v.  Smith,  11  Me.  278,  §17. 
Waggoner  v.   Flack.  188  U.  S.   595, 

§279. 
Walker  v.   New  Mexico  &  Southern 

Pac.  Ry.  Co.,  165  U.  S.  593,  §  139. 
Walker  v.  Vicksburg,  S.  &  P.  Ry.  Co., 

110  La.  718,  §  237. 
Wallace  v.  Ann  Arbor  D.  Y.  Electric 

Ry.  Co.,  121  Mich.  528,  §  464. 
Wallace    v.    Board    of    Equalization 

(Ore.),  86  Pac.  356,  §§262,  453,  455. 
Wallace  v.  City  of  Reno.  27  Nev.  71, 

§120. 
Walla  Walla  v.  Walla  Walla  Water 

Co.,  172  U.  S.  1,  §§  16,  313. 
Walling  v.  Michigan,  116  U.  S.  446, 

§  131. 
Walsh   v.    New   York   Floating   Dry 

Dock  Co.,  77  N.  Y.  448,  §  17. 
Walston  v.   Xevins.    128   U.  S.   578, 

§  300. 
Ward   v.    Gentry   County    Board    of 

Equalization,  135  Mo.  309,  §§  245, 

421. 
Ward  v.  Sea  Ins.  Co.,  7  Paige  (N.  Y.), 

294,  §  489. 
Warfield  v.  Marshall  County  Canning 

Co.,  72  Iowa,  666,  §  463. 
Waring  v.  Clarke,  5  How.  (46  I".  S.) 

441,  §  212. 
Warner  v.  Beers.  23  Wend.  (N.  Y.) 

L03,  §  51. 
Warner  v.  lord  Lumber  &  Mfg.  Co., 

29  Ky.  L.  Rep.  527,  §  so. 
Warren  v.  Board  of  Registration,  72 

Mich.  398,  §  262. 
Warsaw  Water  Works  Co.  v.  Village 

of  Warsaw,   41    X.    Y.   Supp.   876, 

§  391. 


Washburn,    Town    of,   v.   Washburn 

Water  Works  Co.  (Wis.),  98  N.  W. 

539,  §  434. 
Washburn  Wrater  Works  Co.  v.  City 

of  Washburn,  129  Wis.  73,  §§  118, 

148,  195. 
Washington    Investment    Assoc,    v. 

Stanley,  38  Oreg.  319,  §  71. 
Wastl  v.  Montana  Union  Ry.  Co.,  24 

Mont.  159,  §  139. 
Watauga    Water   Co.    v.    Wolfe,    99 

Tenn.  429,  §  63. 
Watensblen    v.    Haithcock,    80    Ala. 

565,  §  250. 
Waterbury  &  Co.  v.  City  of  Laredo, 

60  Tex.  519,  §  51. 
Water  Commissioners.    See  Board  of. 
Water,  Light  &  Gas  Co.  of  Hutchin- 
son  v.    City   of   Hutchinson,    207 

U.S.  385,  §§4,  23. 
Water  Pipe  Co.,  Lim.,  v.  State  Board 

of  Assessors,  57  N.  J.  L.  516,  §  52. 
Waters-Pierce    Oil    Co.    v.    McElroy 

(Tex.  Civ.  App.),  47  S.  W.  272, 

§  343. 
Waters- Pierce  Oil  Co.  v.  Texas,  177 

U.  S.  28,  §§  51,  352,  354. 
Watson  v.  Fairmont  &  Suburban  Ry. 

Co.,  49  W.  Va.  528,  §§  3,  188. 
Watson   v.   Lane,   52   N.   J.   L.   550, 

§  271. 
Watson  v.  Mercer,  8  Pet.  (33  U.  S.) 

88,  §  287. 
Watson  v.  Orr,  14  N.  Car.  161,  §  271. 
Watson,  In  re,  17  S.  Dak.  886,  §  137. 
Watson   Seminary   v.    Pike   County, 

149  Mo.  57,  §  312. 
Weaver    v.    Lapsley,    43    Ala.    224, 

§  245. 
Webb    v.    Ritter,    60    W.    Va.    193, 

§§  236,  239,  263,  266. 
Webber  v.  Clarke,  74  Cal.  11,  §  287 
Weber  v.  Rogan,  188  U.  S.  10,  §§  305, 

306. 
Weddell  v.  Commonwealth,   84    Ky. 

276,  §  283. 
Weed  v.  City  of  Binghamton,    71   N. 

YSupp.  282,  g  387. 


CXX11 


TABLE    OF   CASES    CITED 


Weeks  v.  Smith,  81  Me.  538,  §§  229, 

231. 
Weems   Steamboat   Co.    v.    People's 

Steamboat    Co.,     141    Fed.    454, 

§§  119,  391. 
Wehrenberg    v.     New    York,     New 

Haven  &  Hartford  Rd.  Co.,    108 

N.  Y.  Supp.  704,  §§  236,  238. 
Weil   v.    State,    46    Ohio    St.    450, 

§245. 
Weir  v.  Metropolitan  St.  Ry.  Co.,  126 

Mo.  App.  471,  §  53. 
Weir  v.  Norman  (Adams  Express  Co. 

V   Kentucky),  166  U.  S.  171,  §§  9, 

420,  421,  423. 
Weir  v.  State,  161  Ind.  435,  §  229. 
Welch  v.  Cook,  97  U.  S.  541,  §  460. 
Wellmaker    v.    Terrell     (Ga.     App., 

1908),  60  S.  E.  464,  §  233. 
Wellman  v.  Chicago  &  G.  T.  R.  Co., 

83  Mich.  592,  §  412. 
Wells  v.  Burbank,  17  N.  H.  393,  §  56. 
Wells  v.  Missouri  Pac.  R.  Co.,   110 

Mo.  286,  §  231. 
Welsh  v.  Plumas  County,  94  Cal.  368, 

§350. 
Welton   v.   Missouri,    91    U.   S.   275, 

§404. 
Wenger    v.    Taylor,    39    Kan.    754, 

§  236. 
West  v.  Louisiana,   194  U.  S.  258, 

§272. 
West  Branch  Boom  Co.  v.  Pennsyl- 
vania Joint  Lumber  &  Land  Co., 

121  Pa.  143,  §  250. 
West  Chester  Borough  v.  West  Ches- 
ter St.  Ry.  Co,  203  Pa.  201,  §  337. 
West  Chicago  St.  Ry.  Co.  v.  Chicago, 

201  U.  S.  506,  §§  298,  340. 
West  Chicago  St.  Ry.  Co.  v.  Illinois, 

207  U.  S.  506,  §  298. 
West    Coast    Naval    Stores    Co.    v. 

Louisville  &  N.  R.  Co.  (C.  C.  A.), 

121  Fed.  645,  §  391. 
Western  &  A.  R.  Co.  v.  State  (Ga.), 

14  L.  A.  R.  438,  §  262. 
Western  Invest.  Bkg.  Co.  v.  Murray 

(Ariz.),  56  Pac  728,  §  249. 


Western  Plank  Road  Co.  v.  Central 
Union  Tel.  Co.,  116  Ind.  227,  §  95. 

Western  Turf.  Assn.  v.  Greenburg, 
204  U.  S.  359,  §§  66,  296. 

Western  Union  Teleg.  Co.  v.  Ala- 
bama, 132  U.  S.  472,  §§  358,  432. 

Western  Union  Teleg.  Co.  v.  Ameri- 
can Union  Teleg.  Co.,  65  Ga.  160, 
§§  82,  469. 

Western  Union  Teleg.  Co.  v.  Ameri- 
can Union  Teleg.  Co.,  9  Biss. 
(C.  C.)  72,  §  469. 

Western  Union  Teleg.  Co.  v.  An- 
drews, 154  Fed.  95,  §  147. 

Western  Union  Teleg.  Co.  v.  Atlantic 
&  Pacific  Teleg.  Co,  7  Biss.  (C.  C.) 
10S,  §  469. 

Western  Union  Teleg.  Co.  v.  Attorney 
General  of  Massachusetts,  125  U.  S. 
530,  §§  131,  425. 

Western  Union  Teleg.  Co.  v.  Austin, 
67  Kan.  208,  §§  232,  234,  265. 

Western  Union  Teleg.  Co.  v.  Borough 
of  New  Hope,  187  U.  S.  419,  §  356. 

Western  Union  Teleg.  Co.  v.  Call,  181 
U.  S.  92,  §  413. 

Western  Union  Teleg.  Co.  v.  City  of 
Fremont,  43  Neb.  499,  §  360. 

Western  Union  Teleg.  Co.  v.  City  of 
New  York,  38  Fed.  552,  §  298. 

Western  Union  Teleg.  Co.  v.  City  of 
Omaha  (Neb.),  103  N.  W.  84,  §§  9, 
12,  20,  33,  39,  47,  424. 

Western  Union  Teleg.  Co.  v.  City  of 
Visalia,  149  Cal.  744,  §§  16,  48,  379. 

Western  Union  Teleg.  Co.  v.  Harris 
(Term.),  52  S.  W.  748,  §  360. 

Western  Union  Teleg.  Co.  v.  Indiana, 
165  U.  S.  304,  §421. 

Western  Union  Teleg.  Co.  v.  James, 
162  U.  S.  650,  §§  120,  131,  366,  376. 

Western  Union  Teleg.  Co.  v.  Lark,  95 
Ga.  806,  §  376. 

Western  Union  Teleg.  Co.  v.  Lowrey, 
32  Neb.  732,  §  245. 

Western  Union  Teleg.  Co.  v.  Massa- 
chusetts, 125  U.  S.  530,  §§  131, 
432. 


TABLE    OF   CASES    CITED 


CXX1U 


Western  Union  Teleg.  Co    v.  Mayor, 

24  Ohio  St.  521,  §  67. 
Western  Union  Teleg.  Co.  v.  Mayor  of 

New  York,   38  Fed.    552,    §§  131, 

314. 
Western  Union  Teleg.  Co.  v.  Mellon, 

100  Tenn.  429,  §  376. 
Western  Union  Teleg.  Co.  v.  Missouri 

ex   rel.    Gottlieb,    190   U.   S.    412, 

§§182,  432,  448. 
Western  Union  Teleg.  Co.  v.  Missis- 
sippi R.  Commission,  74  Miss.  80, 

§131. 
Western  Union  Teleg.  Co.  v.  Myatt, 

98  Fed.  335,  §§  135,  147,  180,  365. 
Western  Union  Teleg.  Co.  v.  Norman, 

77  Fed.  13,  §§  2    8,  34,  132,  419, 

420,  421,  425,  432. 
Western  Union  Teleg.  Co.  v.  Pendle- 
ton, 122  U.  S.  347,  §§  366,  376. 
Western  Union  Teleg.  Co.  v.  Railroad 

Commission     (La.),    45    So.     598, 

§§  205,  213. 
Western  Union  Teleg.  Co.  v.  Rich- 
mond, 26  Gratt.  (Va.)  1,  §  64. 
WTestern   Union  Teleg.  Co.  v.  State 

Board   of  Assessors,   80  Ala.   273, 

§  238. 
Western  Union  Teleg.  Co.  v.  Taggart, 

163  U.S.  1,  §§426,  432. 
Western  Union  Teleg.  Co.  v.  Tyler,  94 

Va.  268,  §  376. 
Western  Union  Teleg.  Co.  v.  Tyler,  90 

Va.  297,  §§  131,  376. 
Western  Union  Teleg.  Co.  v.  Western 

&  Atlantic  Teleg.  Co.,  91  U.  S.  283, 

§469. 
Westfield  Borough  v.  Tioga  County, 

150  Pa.  152,  §  15. 
West   Hartford   v.    Hartford    Water 

Commrs.,  68  Conn.  323,  §  269. 
West  Manayunk   Gas  Light  Co.   v. 

New  Gas  Light  Co.,  21  Pa.  Co.  Ct. 

Rep.  378,  §§  3,  16,  23,  257,  486. 
West  Point  Water  Power*  L.  I   <'<•. 
v.  State,  1U  Neb.  223,  §§  138,  245. 
Westport,  City  of,  v.  Mulholl.ind,  159 
Mo.  86,  §§  335,  344. 


West  River  Bridge  v.  Dix,  6  How.  (47 

U.  S.)  507,  §§  26,  332,  412. 
West  Side  Electric  Co.  v.  Consolidated 

Teleph.  Co.,  96  N.  Y.  Supp.  609, 

§§  191,  379. 
West  Virginia  &  P.  R.  Co.  v.  Harrison 

County  Court  (W.  Va.),  34  S.  E. 

786,  §  349. 
West  Virginia  Transportation  Co.  v. 

Ohio  River  Pipe  Line  Co.,  22  W. 

Va.  600,  §§  82,  88. 
West  Wisconsin  Ry.  Co.  v.  Trempea- 
leau County,  93  U.  S.  595,  §  460. 
Wetumpka  v.  Winter,  29  Ala.  651, 

§  238. 
Weyeth  Hardware  &  M.  Co.  v.  James- 

Spencer-Bateman    Co.,     15    Utah, 

110,  §§  42,  51. 
Wheat  v.  Smith,  50  Ark.  266,  §  236. 
Wheeler  v.  County  Commissioners,  88 

Me.  174,  §  423. 
Wheeling  &  Belmont  Bridge  Co.  v. 

Wheeling  Bridge  Co.,  13S  U.  S.  287, 

§§  340,  412,  455. 
Wheeling  Bridge  &  Terminal  Ry.  Co. 

v.  Gilmore,  8  Ohio  Cir.  Ct.  R.  655, 

§66. 
Whitbeck  v.  Mercantile  Nat.  Bank, 

127  U.  S.  193,  §  182. 
White  v.  Brownell,  4  Abb.  Pr.  (N.  S.) 

(N.  Y.)  162,  §  11. 
White  v.  Chicago,  M.  &  St.  Paul  R. 

Co.,  5  Dak.  508,  §  269. 
White  v.  Chowan,  Commrs.  of,  90  N. 

Car.  437,  §  56. 
White    v.    Meadville,    177    Pa.    643, 

§  265. 
White  v.  State,  69  Ind.  273,  §  64. 
White  v.  State,  134  Ala.  197,  §  270. 
White  v.  United  States,  191  U.S.  545, 

§287. 
Whitfield   v.  ^Etna  Life  Ins.   ('<>.   of 

Hartford,   205  U.  S.   489,    §£  352, 

365. 
Whit  lock  v.  Hawkins,   105  Va.  242, 

|§137,  287. 
Whitman  v.  Mast,  Buford  &  Burwell 

Co.,  11  Wash.  318,  §271. 


CXX1V 


TABLE    OF   CASES    CITED 


Whitmyre  v.  Mast,  Buford  &  Burwell 

Co.,  84  App.  Div.  91,  §  33. 
Wichita,  City  of,  v.  Missouri  &  K. 

Teleph.  Co.,  70  Kan.  441,  §  379. 
Wiggins  Ferry  Co.  v.  Ohio  D.  M.  R. 

Co.,  142  U.  S.  396,  §  478. 
Wight  v.  Davidson,  181  U.  S.  371, 

§399. 
Wight  v.  United  States,   167  U.  S. 

512,  §  403. 
Wilcox  v.  McClellan,    185  N.  Y.  9, 

§§  148,  192. 
Wild  v.  Boston  &  M.  R.  Co.,    171 

Mass.  245,  §  287. 
Wilkes-Barre  Bank  v.  Wilkes-Barre, 

148  Pa.  601,  §  425.* 
Wilkes-Barre  Elec.  L.  Co.  v.  Wilkes- 
Barre  L.,  H.  &  M.  Co.  (C.  P.  Penn., 
1886),  4  Kulp,  47,  §  23. 
Wilkes  County  v.  Call,  123  N.  Car. 

308,  §  316. 
Wilkes  County  v.  Coler,  180  U.  S.  506, 

§§  273,  275^. 
Wilkins     v.    State,     113    Ind.    514, 

§  234. 
Wilkins  County  v.  City  of  Baltimore, 

103  Md.  293,  §§  453,  454. 
Wilkinson  v.   Evans,   34  Pa.  Super. 

Ct.  472,  §  53. 
Wilkinson  v.  Leland,  2  Pet.  (27  U.  S.) 

627,  §  239. 
Willcox  v.  Consolidated  Gas  Co.    See 

"Appendix  C,"  herein. 
Williamette  Iron  Bridge  Co.  v.  Hatch, 

125  U.S.  1,  §§  127,  152. 
Williamette  Mfg.  Co.  v.  Bank  of  Brit- 
ish Columbia,  119  U.  S.  191,  §§  3, 
10,  465,  471. 
Williams  v.  Bank,  7  Wend.  (N.  Y.) 

540,  §  350. 
Williams  v.  Brousard,   51   La.  Ann. 

335,  §  423. 
Williams  v.  City  Electric  Ry.  Co.,  41 

Fed.  556,  §  111. 
Williams  v.  Cresswell,  51  Miss.  817, 

§130. 
Williams  v.  Gold  Hill  Min.  Co.,  96 
Fed.  454,  §  272. 


Williams    v.    Mayor,    etc.,    of    New 

York,  HON.  Y.  569,  §  33. 
Williams  v.  Miles,  62  Neb.  566,  §  264. 
Williams  v.  Parker,  188  U.  S.  491, 

§  399. 
Williams  v.  Supervisors  of  Albany, 

122  U.  S.  154,  §  182. 
Williams  v.   Western   Union  Teleg. 
Co.,    48    N.    Y.    Super.    Ct.    349, 
§§  425,  446. 
Williamson  v.  Carlton,   51   Me.  449, 

§231. 
Williamson  v.  Liverpool  &  London  & 
Globe  Ins.  Co.,  141  Fed.  54,  §  300. 
Williamsport  Passenger  R.  Co.'s  Ap- 
peal, 120  Pa.  1,  §  317. 
Willis  v.  Eastern  Trust  &  Banking 

Co.,  169 'U.  S.  295,  §  269. 
Willoughby  v.  Horridge,  16  Eng.  L.  & 

Eq.437,  §§  14,97. 
Wilmington    v.    Addicks    (Del.),    47 

Atl.  366,  §  307. 
Wilmington   &  Reading  Ry.  Co.   v. 
Downward  (Del.),  14  Atl.  720,  §§1, 
11,  26. 
Wilmington  &  W.  R.  Co.  v.  Alsbrook, 
146  U.  S.  279,  §§  412,  452,  455,  459, 
479. 
Wilmington  City  R.  Co.  v.  Wilming- 
ton &  Brandywine  Springs  R.  Co. 
(Del.  Ch.),  46  Atl.   12,   §§  12,  26, 
307,  317. 
Wilmington  Ry.  v.  Reid,  13  Wall.  (.80 
U.  S.)   264,    §§  26,    34,    454,    459, 
460. 
Wilmington  Star  Mining  Co.  v.  Ful- 
ton, 205  U.  S.  60,  §  295. 
Wilmington    Water    Power    Co.    v. 
Evans,  166  111.  548,  §§  3,  122,  132, 
133,  463. 
Wilson  v.  Blackbird  Creek  Marsh  Co., 

2  Pet.  (27  U.  S.)  245,  §  152. 
Wilson  v.  Briscoe,  6  Eng.  (11  Ark. 

44,  §  239. 
Wilson  v.   Gabler,    11   S.   Dak.   570, 

§  194. 
Wilson  v.  Gaines,  9  Baxt.  (68  Tenn.) 
546,  §§  12,  20,  480. 


TABLE    OF   CASES    CITED 


CXXV 


Wilson  v.  Kansas  City,  St.  J.  &  C.  B. 

R.  Co.,  60  Mo.  184,  §  372. 
Wilson  v.  Spaulding  (C.  C),  19  Fed. 

304,  §  221. 
Winchester  &  L.  Turnpike  Road  Co. 

v.  Croxton,  98  Ky.  739,  §  397. 
Winchester    &    Strasburg    Rd.    Co. 

v.   Commonwealth,    106    Va.   264, 

§§170,  464. 
Winn  v.  Wabash  R.  Co.,  118  Fed.  55, 

§§  67,  481. 
Winnebago  (Iroquois  Transp.  Co.  v. 

De  Laney  Forge  &  Iron  Co.),  205 

U.  S.  354,  §  229. 
Winona  &  St.  Peter  Rd.  Co.  v.  Blake, 

94  U.  S.  180,  §§  167,  381,  391,  400. 
Winspear    v.    District    Township    of 

Halman,  37  Iowa,  542,  §  56. 
Winston,  City  of,  v.  Town  of  Salem, 

131  N.  Car.  404,  §  440. 
Winters  v.  City  of  Duluth,  82  Minn. 

127,  §§  56,  118. 
Wisconsin  &  M.  R.  Co.  v.  Powers,  191 

U.  S.  379,  §§  458,  460. 
Wisconsin   Central    R.    Co.    v.    For- 

sythe,  159  U.  S.  46,  §  256. 
Wisconsin  Central  R.  Co.  v.  Taylor, 

52  Wis.  57,  §§  216,  223. 
Wisconsin  Central  R.  Co.  v.  United 

States,  164  U.  S.  190,  §§  254,  263. 
Wisconsin    Keeley    Institute   Co.    v. 

Milwaukee  County,   95   Wis.    153, 

§62. 
Wisconsin,  M.  &  P.  R.  Co.  v.  Jacob- 
son,  379  U. S. 287, §§  167,  381,  386. 
Wiswall  v.  Hall,  3  Paige  (N.  Y.),  313, 

§17. 
Witbreck  v.   Holland,  45  N.  Y.    13, 

§79. 
Withers    v.    Buckley,    20    How.    (61 

U.  S.)  84,  §  275. 
Wolf  v.  Bauereis,  72  Md.  481,  §  213. 
Wood  v.  Brady,  150  U.  S.  18,  §  259. 
Wood  v.  City  of  Seattle,  23  Wash.  1, 

§  347. 
Wood  v.  Common  Council  of  City  of 

Pinghamton,  56  N.  Y.  Supp.   105, 

§24. 


Wood  v.  Fitzgerald,  3  Ore.  568,  §  224. 
Wood  v.  Truckee  Turnpike  Co.,  24 

Cal.  474,  §  17. 
Woodall  v.  Boston  Elevated  Ry.  Co. 

(Mass.,  1906),  78,  §  283. 
Woodfork  v.  Union  Bank,  3  Coldw. 

(43Tenn.)  488,  §  311. 
Woodruff  v.  New  York  &  N.  E.  R. 

Co.,  59  Conn.  63,  §  366. 
WToods  v.  Colfax  County,  10  Neb.  552, 

§56. 
Woods  v.  Lawrence  County,  1  Black 

(66  U.  S.),  386,  §§  3,  236,  256. 
W'oodson  v.  Murdock,  22  Wall.  (89 

U.  S.)  351,  §  247. 
Woodward  v.  Commonwealth,  9  Ky. 

L.  Rep.  670,  §  67. 
Woodworth  v.  Bowles,  61  Kan.  569, 

§227. 
Woolsey  v.  Cade,  54  Ala.  378,  §  270. 
Worcester  v.   Worcester  Consol.   St. 

Ry.  Co.,  182  Mass.  49,  §  337. 
Worcester,  City  of,  v.  Worcester  Con. 

St.  Ry.  Co.,  196  U.  S.  539,  §§  337, 

343. 
Workman  v.  Southern  Pacific  R.  Co., 

129  Cal.  536,  §§  47,  241. 
Worth  v.  Wilmington  &  Weldon  Rd. 

Co.,  89  N.  Car.  291,  §  26. 
Wortham  v.  Basket,  99  N.  Car.  70, 

§  265. 
Wright  v.  Adams,  45  Tex.  134,  §  233. 
Wright  v.  Baltimore  &  Ohio  Rd.  Co., 

32  Pa.  Super.  Ct.  5,  §  63. 
Wright    v.   Cunningham,    115   Tenn. 

445,  §  137. 
Wright  v.  Milwaukee  Electric  R.  &  L. 

Co.,  95  Wis.  29,  §§  465,  488. 
Wright   v.   Minnesota  Life  Ins.  Co., 

193  U.  S.  657,  §  339. 
Wright  v.  Nagle,  101  U.  S.  791,  §§  17, 

•_>:',,  171,  145,  Ms,  254,  257,  313. 
Wright  v.  Sill,  2  Black  (67  U.  S.),  544, 

§  334. 
Wright  v.  Southern  R.  Co.  (C.  O),  80 

Fed.  260,  §  287. 
Wrought  Iron  Range  Co.  v.  Carver, 

118  N.  Car.  328,  §288. 


CXXV1 


TABLE    OF    CASES    CITED 


Wulff  v.  Aldrich,  124  111.  591,  §  216. 

Wyandotte  Elec.  L.  Co.  v.  City  of 
Wyandotte,  124  Mich.  43,  §  33. 

Wynn  Johnson,  In  re,  1  Alaska,  630, 
§233. 

Wyoming  Agricultural  College  v.  Ir- 
vine, 206  U.  S.  278,  §  69. 


Yankton  Sav.  Bank  v.  Gutterson,  15 

S.  Dak.  486,  §  269. 
Yarbrough,  Ex  parte,  110  U.  S.  651, 

§416. 
Yard  v.  Ford,  2  Saund.  172,  §  15. 
Yarmouth   v.    North   Yarmouth,   34 

Me.  411,  §§61,  115,  132,311. 
Yazoo  v.  Adams,  ISO  U.  S.  1,  §§  479, 

481,  483. 
Yazoo  &  M.  V.  R.  Co.  v.  Board  of 

Levee  Commrs.,  37  Fed.  24,  §§  61, 

412,  453,  459. 
Yazoo  &  M.  V.  R.  Co.  v.  Thomas,  132 

U.  S.  174,  §  455. 
Yick  Wo  v.  Hopkins,  118  U.  S.  356, 

§§  136,  298. 
Yonkers,  City  of,  v.  Yonkers  R.  Co., 

64  N.  Y.  Supp.  955,  §  387. 
York   v.   Washburn,    129   Fed.    564, 

§272. 
Youghiogheny  &   Ohio  Coal  Co.   v. 

Erie  Ry.  Co.,  24  Ohio  Cir.  Ct.  Rep. 

289,  §  103. 
Young  v.  City  of  Kansas  City,   152 

Mo.  661,  §  136. 


Young  v.   Commonwealth,    101   Va. 

853,  §  231. 
Young  v.  Harrison,  6  Ga.  130,  §§  17, 

145. 
Young  v.  Webster  City  &  So.  West. 

Ry.  Co.,  75  Iowa,  140,  §§  1,  5,  11. 
Younger  v.  Webster  City  &  So.  West. 

R.  Co.,  75  Iowa,  140,  §491. 
Youngerman  v.  Murphy,   107  Iowa, 

686,  §  245. 
Young,  Ex  parte,  209  U.  S.  123  (see 

"Appendix  C,"  herein),  §  416. 
Young    Men's    Christian    Assoc,    of 

Omaha    v.    Douglass    County,    60 

Neb.  642,  §  455. 
Young's  Case,  101  Va.  853,  §  231. 
Youree  v.  Home  Town  Mut.  Ins.  Co., 

180  Mo.  153,  §  491. 


Zabriskie  v.  Hackensack  &  N.  Y.  R. 

Co.,  18  N.  J.  Eq.  178,  §311. 
Zanesville,    City    of,    v.     Zanesville 

Teleg.  &  Teleph.  Co.,  64   Ohio  St. 

67,  §§  135,  179. 
Zeiger  v.  Pennsylvania  R.  Co.,   158 

Fed.  809,  §  272. 
Zeigler  v.  South  &  N.  A.  R.  Co.,  58 

Ala.  594,  §  231. 
Zeigler  v.   Thompson,   43   La.   Ann. 

1013,  §  89. 
Zimmer  v.  State,  30  Ark.  677,  §  20. 
Zirele  v.  Southern  Ry.  Co.  (Va.),  45 

S.  E.  802,  §§  63,  136. 


JOYCE   ON   FRANCHISES, 

ESPECIALLY  THOSE  OF 

PUBLIC  SERVICE  CORPORATIONS. 
CHAPTER  I. 


DEFINITIONS. 


1.  Definition     of     Franchise     by 

Finch,     Blackstone,     Chitty, 
Cruise  and  Kent. 

2.  Chief    Justice    Taney's    Defini- 

tion of  a  Franchise. 

3.  Other  Definitions  and  Expres- 

sions Classified  —  Franchises. 

4.  "Franchise"   as   a   Contract  — 

As  an  Exclusive  Right. 

5.  "Corporate    Franchise"  —  Cor- 

porate Franchises. 


§  6.  General  Franchise  of  Corpora- 
tion. 

7.  Special    Franchise   of   Corpora- 

tion. 

8.  Primary  Franchise  and  Secon- 

dary Franchises  of  Corpora- 
tion. 

9.  "Franchise"    Under    Constitu- 

tions and  Statutes. 


Section  1.  Definition  of  Franchise  by  Finch,  Blackstone, 
Chitty,  Cruise  and  Kent.— Finch  says  "a  franchise  is  a  royal 
privilege  in  the  hands  of  a  subject."  '  This  definition  is  one  of 
those  quoted  by  Kent,2  and  has  not  only  been  adopted  and 
followed  substantially  by  Blackstone,3  Chitty,4  and  Cruise,5 
but  it  has  also  been  accepted,  either  in  the  words  of  Finch  or 
in  those  of  Blackstone,  as  an  authority  and  quoted  by  subse- 


1  Finch's  Laws  of  Eng.  126  [38.] 

2  Kent's  Comm.  (14  ed.),  bottom  p. 
723,  *p.  458. 

3  "  A  royal  privilege  or  branch  of  the 
king's  prerogative,  subsisting  in  the 
hands  of  a  subject,"  2  Blackstone's 
Comm.  (Lewis's  ed.),  bottom  p.  506, 


*37;  (Hammond's  ed.)  67  [37];  (Wen- 
dell's ed.)  37,  side  p.  [38];  (Shars- 
wood's  ed.)  37;  (Chase's  ed.)  234,  *37. 

4  Chitty  on  Prerogatives,  p.  119. 

5  3  Greenleaf's  Cruise  on  Real  Prop- 
erty (ed.  1850),  55,  *2('>(),  giving  same 
definition  as  Blackstone. 

1 


§1 


DEFINITIONS 


quent  writers  and  likewise  by  the  courts  in  numerous  opinions 
and  cases.6 


6  United  States:  California  v.  Cen- 
tral Pacific  Rd.  Co.,  127  U.  S.  1,  40, 
32  L.  ed.  346,  9  Sup.  Ct.  6  (taxation 
of  franchises  of  railroad  company 
amongst  which  were  franchises  con- 
ferred by  the  United  States);  Talcott 
v.  Township  of  Pine  Grove,  1  Flipp 
(U.  S.  C.  C),  120,  142,  Fed.  Cases 
No.  13,735,  per  Emmons,  Cir.  J. 

Alabama:  Horst,  Mayor,  etc.,  v. 
Moses,  48  Ala.  146,  per  Peters,  J.,  in 
dissenting  opinion;  State  v.  Moore  & 
Ligon,  19  Ala.  520,  per  Parsons,  J. 

California:  Spring  Valley  Water 
Works  v.  Schottler,  62  Cal.  69,  106, 
per  Thornton,  J. 

Connecticut:  Norwich  Gas  Light 
Co.  v.  The  Norwich  City  Gas  Co., 
25  Conn.  19,  36,  per  Hinman,  J.  (a 
case  of  right  to  lay  gas-pipes  in 
streets) . 

Illinois:  Lasher  v.  People,  183  111. 
226,  232,  per  Cartwright,  C.  J.;  Belle- 
ville v.  Citizens'  Horse  Ry.  Co.,  152 
111.  171,  185,  38  N.  E.  584,  26  L.  R.  A. 
681,  per  Baker,  J.  (a  case  holding 
that  corporate  property  cannot  be 
forfeited  by  ordinance);  Fietsam  v. 
Hay,  122  111.  293,  295,  13  N.  E.  501, 
11  West.  Rep.  582,  3  Am.  St.  Rep. 
492,  per  Mulkey,  J.  (a  case  of  right 
to  sell  or  transfer);  Chicago  &  West- 
ern Indiana  Rd.  Co.  v.  Dunbar,  95 
111.  571,  575,  per  Dickey,  J.  (a  case 
of  what  is  a  franchise  under  a  state 
constitution  and  also  as  to  appellate 
jurisdiction);  People  v.  Holtz,  92  111. 
426,  428  (holding  that  an  office  is 
not  a  franchise);  Board  of  Trade  of 
Chicago  v.  The  People,  91  111.  80,  83 
(a  question  of  appeal  and  the  right 
of  a  member  of  a  Board  of  Trade  to 
be  restored  to  membership);  Chicago 
City  Ry.  v.  People,  73  111.  541,  547 


(a  case  of  quo  warranto  against  a 
street  railway  company);  People  ex 
rel.  Koerner  v.  Ridgley,  21  111.  65,  69, 
per  Breese,  J.;  Cain  v.  City  of  Wyo- 
ming, 104  111.  App.  538,  540,  per 
Brown,  J.  (a  case  of  a  grant  for  the 
use  of  streets  made  by  city  ordinance 
for  a  water  works  system,  also  of  mu- 
nicipal indebtedness  and  powers) . 

Iowa:  Prosser  v.  Wapello  County, 
18  Iowa,  327,  333,  per  Dillon,  J. 

Kansas:  State  v.  City  of  Topeka, 
30  Kan.  653,  657,  2  Pac.  587,  per  Hor- 
ton,  C.  J.  (holding  that  the  right  of 
licensing  the  sale  of  intoxicating  liq- 
uors as  a  beverage  and  the  exaction 
of  tax  or  charge  therefor  was  a  fran- 
chise or  privilege  which  no  city  in  the 
State  had  the  power  to  exercise  and 
that  quo  warranto  was  the  proper 
remedy  in  case  of  an  unlawful  as- 
sumption of  such  power.) 

Kentucky:  Louisville  Tobacco 
Warehouse  Co.  v.  Commonwealth,  20 
Ky.  L.  Rep.  1047,  1050,  48  S.  W.  420 
("  a  branch  of  the  king's  prerogative 
subsisting  in  the  hands  of  a  subject," 
A  case  of  corporation  failing  to  report 
for  franchise  tax);  Commonwealth  v. 
City  of  Frankfort,  13  Bush  (76  Ky.), 
185,  189,  per  Lindsey,  C.  J.  (a  lottery 
case). 

Louisiana:  Maestri  v.  Board  of  As- 
sessors, 110  La.  517,  526,  34  So.  658, 
per  Blanchard,  J. 

Michigan:  Mayor  v.  Park  Commis- 
sioners, 44  Mich.  602,  604,  7  N.  W. 
180,  per  Cooley,  J.  (a  case  of  a  pub- 
lic park  as  a  public  franchise). 

Minnesota:  State  v.  Minnesota 
Thresher  Mfg.  Co.,  40  Minn.  213,  225, 
3  L.  R.  A.  510,  41  N.  W.  1020,  per 
Mitchell,  J.  ("The  definition  of  a 
'franchise'  given  by  Finch,  adopted 


DEFINITIONS 


§1 


Another  definition,  given  by  Kent,  is  that  franchises 
are  "certain  privileges  conferred  by  a  grant  from  govern- 
ment, and  vested  in  individuals,"  7  and  this  definition  has 


by  Blackstone,  and  accepted  by  every 
authority  since,  is  '  a  royal  privilege 
or  branch  of  the  King's  prerogative, 
subsisting  in  the  hands  of  a  subject.' ' 
A  case  involving  the  Constitution; 
quo  warranto;  corporations  under  Act 
1873;  Ultra  Vires  acts;  forfeiture). 

New  York :  People  v.  Utica  Ins.  Co. , 
15  Johns.  (N.  Y.)  357,  386,  387,  8 
Am.  Dec.  243,  per  Spencer,  J.  ("All 
the  elementary  writers  agree  in 
adopting  Finch's  definition."  A  case 
of  usurpation  of  franchise  by  insur- 
ance company  to  carry  on  banking 
business  as  a  corporation). 

Ohio.  State  v.  Pittsburgh,  Youngs- 
town  &  Ashtabula  Rd.,  50  Ohio  St. 
239,  251,  33  N.  E.  1051,  per  Mar- 
shall, J.  (a  case  of  quo  warranto); 
Knoup  v.  Piqua  Bank,  1  Ohio  St. 
603,  613,  per  Corwin,  J.  ("A  fran- 
chise is  a  royal  privilege  subsisting  in 
a  subject  by  a  grant  from  the 
crown.") 

Pennsylvania:  Douglass's  Appeal, 
118  Pa.  65,  68,  per  Master's  Re- 
port; Commonwealth  v.  Arrison,  15 
Serg.  &  R.  (Pa.)  127,  130,  16  Am. 
Dec.  531,  per  Tilghman,  C.  J.  ("A 
franchise  is  a  word  of  extensive  sig- 
nification. It  is  defined  by  Finch, 
whom  all  subsequent  writers  have 
followed,  to  be  a  'royal  privilege  in 
the  hands  of  a  subject.'  "  A  case  of 
information  in  nature  of  quo  war- 
ranto against  persons  acting  as 
trustees  of  incorporated  church.) 
See  Twelfth  St.  Market  Co.  v.  Phila- 
delphia &  Reading  Term.  Co.,  142 
Pa.  580,  590,  21  Atl.  989,  per 
Thayer,  P.  J.;  Shamokin  Valley  Rd. 
Co.  v.  Livermore,  47  Pa.  465,  468, 
86  Am.  Dec.  552,  per  Agnew,  J. 


South  Dakota:  State  v.  Scougal,  3 
S.  Dak.  55,  62,  15  L.  R.  A.  477,  44 
Am.  St.  Rep.  756,  per  Corson,  J.  (a 
case  of  banking  business). 

West  Virginia :  State  v.  Peel  Splint 
Coal  Co.,  36  W.  Va.  802,  813,  17 
L.  R.  A.  385,  15  S.  E.  1000,  per 
Lucas,  Pres.  (a  case  of  constitutional 
law;  "  Scrip  "  act;  laborers'  wages; 
Screening  act;  weighing  and  measur- 
ing coal;  construction  of  statutes  and 
indictment). 

England:  Attorney  General  v. 
Trustees  of  British  Museum,  Law 
Rep.  (1903),  2  Chan.  Div.  598,  612, 
per  Farwell,  J.  ("A  franchise  is  a 
royal  privilege  or  a  branch  of  the 
king's  prerogative  subsisting  in  a 
subject  by  a  grant  from  the  king. 
Chitty  on  Prerogatives,  119.  So  long 
as  it  is  attached  to  the  Crown  it  is 
called  a  prerogative,  but  when  it  is 
granted  to  a  subject  it  is  called  a 
franchise.  Chitty  on  Prerogatives, 
118."  A  case  of  treasure-trove  held 
not  to  pass  under  a  general  grant  of 
franchises,  but  must  be  expressly 
granted  when  it  becomes  a  franchise 
in  the  grantee.) 

See  also  Viner's  Abridg.,  "Fran- 
chises," 508;  Angell  &  Ames  on 
Corp.  (9th  ed.),  §§  4,  737;  Bouvier's 
L.  Diet.;  Brown's  L.  Diet.;  Burn's  L. 
Diet.;  Burrill's  L.  Diet.;  3  Jacob's  L. 
Diet.,  122,  title  "Franchises;"  Kin- 
ney's L.  Diet.  &  Gloss.;  Rapalje  & 
Lawrence's  L.  Diet.;  Shumaker  & 
Longsdorf's  Cyc.  Diet.;  Stroud's 
Judic.  Diet.;  Mozley  &  Whiteley's  L. 
Diet. 

7  Kent's  Comm.  (14  ed.),  bottom 
p.  723,  *p.  458. 


§1 


DEFINITIONS 


also  been  adopted  and  relied  upon  by  the  courts  to  a  great 
extent.8  And  with  the  exception  that  the  words  "particular 
privilege"  are  used  instead  of  the  words  "certain  privileges" 
this  last  definition  by  Kent  has  also  been  given  in  a  number 
of  opinions.9     Other  forms  of  this  definition  are  as  follows: 

8  Alabama:  Horst,  Mayor,  etc.,  v. 
Moses,  48  Ala.  129,  146,  per  Saf- 
fold,  J. 

Arkansas:  State  v.  Real  Estate 
Bank,  5  Ark.  (5  Pike)  595,  599,  41 
Am.  Dec.  109,  per  Lacy,  J. 

California:  Henshaw  ex  parte,  73 
Cal.  486,  493,  15  Pac.  110,  per  Mc- 
Kinstry,  J.;  Spring  Valley  Water 
Works  v.  Schottler,  62  Cal.  69,  106, 
per  Thornton,  J. 

Colorado:  Londoner  v.  People,  15 
Colo.  246,  247,  25  Pac.  183,  per 
Hayt,  J.;  Arapahoe  County  v.  Rocky 
Mountain  News  Printing  Co.,  15 
Colo.  App.  189,  202,  61  Pac.  494,  per 
Wilson,  J. 

Delaware:  Wilmington  &  Reading 
Ry.  Co.  v.  Downward  (Del.  Ct.  Err. 
&  App.,  1888),  14  Atl.  720,  721,  per 
Saulsbury,  Ch.  J. 

Georgia:  State  ex  rel.  Waring  v. 
Georgia  Medical  Society,  38  Ga.  608, 
626,  95  Am.  Dec.  408,  citing  Bou- 
vier's  L.  Diet.,  but  definition  same  as 
Kent's. 

Illinois:  Fietsam  v.  Hay,  122  Rl. 
293,  295,  13  N.  E.  501,  11  West.  Rep. 
582,  3  Am.  St.  Rep.  492,  per  Mul- 
key,  J.  (a  case  of  right  to  sell  or 
transfer),  citing  Bouvier's  L.  Diet., 
but  definition  same  as  Kent's. 

Kentucky:-  Commonwealth  v. 
Frankfort,  13  Bush  (76  Ky.),  185, 
189,  per  Lindsay,  C.  J. 

Louisiana:  Maestri  v.  Board  of 
Assessors,  110  La.  517,  526,  34  So. 
658,  per  Blanchard,  J.;  State  v. 
Morgan,  28  La.  Ann.  482,  493,  per 
Ludeling,  C.  J.,  in  dissenting  opinion 
(a  case  of  exemption  from  taxation, 


right  of  transfer  and  construction  of 
charter),  quoting  Bouvier's  L.  Diet., 
but  definition  same  as  Kent's. 

Maine:  Kennebec  &  Portland  Rd. 
Co.  v.  Portland  &  Kennebec  Rd.  Co., 
59  Me.  9,  66,  dissenting  opinion  of 
Tapley,  J.  (mortgage  and  foreclosure 
of  railroad  franchise  and  other  prop- 
erty), citing  Bouvier's  L.  Diet.,  but 
definition  same  as  Kent's. 

Minnesota:  McRoberts  v.  Wash- 
burne,  10  Minn.  23,  27. 

New  York:  Milhau  v.  Sharp,  27 
N.  Y.  611,  619,  84  Am.  Dec.  314,  per 
Selden,  J.,  quoting  Bouvier's  L. 
Diet.,  but  definition  same  as  Kent's. 

Ohio :  State  v.  Pittsburgh,  Youngs- 
town  &  Ashtabula  Rd.  Co.,  50  Ohio 
St.  239,  251,  33  N.  E.  1051,  per 
Minshall,  J. 

Oregon:  Montgomery  v.  Multno- 
mah Rd.  Co.,  11  Oreg.  344,  354, 
per  Lord,  J. 

Wisconsin:  Sellers  v.  Union  Lum- 
bering Co.,  39  Wis.  525,  527,  per 
Ryan,  C.  J. 

9  California:  Ex  parte  Henshaw,  73 
Cal.  486,  492,  15  Pac.  110,  per  Mc- 
Kinstry,  J. 

Colorado:  Londoner  v.  People,  15 
Colo.  247,  per  Hayt,  J.;  Arapahoe 
County  v.  Rocky  Mountain  News 
Printing  Co.,  15  Colo.  App.  189,  202, 
61  Pac.  494,  per  Wilson,  J. 

Connecticut:  Crum  v.  Bliss,  47 
Conn.  592,  602,  per  Park,  C.  J.  (case 
of  transfer  of  corporate  franchise). 

Iowa:  Young  v.  Webster  City  & 
So.  West  Ry.  Co.,  75  Iowa,  140, 
143,  39  N.  W.  234,  per  Rothrock,  J. 
(case  of  forfeiture  of  railroad  fran- 


DEFINITIONS  §   2 

"A  particular  privilege  conferred  by  grant  from  a  sovereign 
or  government  and  vested  in  individuals;"10  "a  particular 
privilege  or  right  granted  by  a  prince  or  sovereign  to  an  in- 
dividual, or  to  a  number  of  persons;"  n  a  certain  privilege  of 
a  public  nature,  conferred  by  grant  from  the  government, 
and  vested  in  individuals.12 

§  2.  Chief  Justice  Taney's  Definition  of  a  Franchise. — 

Under  a  definition  which  is  generally  accredited  to  Chief  Jus- 
tice Taney  of  the  United  States  Supreme  Court,  franchises 
are  special  privileges  conferred  by  the  government  on  in- 
dividuals, and  which  do  not  belong  to  the  citizens  of  the 
country  generally  of  common  right.13  This  definition  has  been 
extensively  quoted  or  adopted  and  relied  upon  as  an  authority 
by  the  courts  in  their  opinions  and  decisions.14 

chise   and   taxation),    quoting   from  130  111.  42,  53,  22  N.  E.  616,  per 

Bromin.  Baker,  J.  (a  case  of  charter  powers  to, 

Kentucky:  Miller  v.  Common-  and  use  of  streets  by,  a  gas  company, 
wealth,  112  Ky.  404,65  S.  W.  828,  per  its  rights  under  grant  as  a  contract 
Guffy,  J.  (Bouvier's  L.  Diet,  is  cited,  and  specific  performance);  Louisville 
however);  Louisville  Tobacco  Ware-  Tobacco  Warehouse  Co.  v.  Common- 
house  Co.  v.  Commonwealth,  20  Ky.  wealth,  20  Ky.  L.  Rep.  1047,  1050, 
L.  Rep.  1047,  1050,  48  S.  W.  420  (a  48  S.  W.  420,  per  Paynter,  J.  (a  case 
case  of  corporation  failing  to  report  of  corporation  failing  to  report  for 
for  franchise  tax);  Commonwealth  v.  franchise  tax)  quoting  Webster's 
City  of  Frankfort,  13  Bush  (76  Ky.),  Diet. 

185,  189,  per  Lindsay,  C.  J.  (a  lottery  "  Central  Railroad  &  Banking  Co. 

case).  v.  State  of  Georgia,  54  Ga.  401,  409, 

Ohio:  State  v.  Pittsburgh,  Youngs-  per  Warner,  C.  J.  (a  case  of  duration 

town  &  Ashtabula  Rd.  Co.,  50  Ohio  of  charter  and  right  of  State  to  with- 

St.    239,    251,   33   N.    E.   J051,    per  draw  franchise),   quoting  Webster's 

Marshall,  J.  (a  case  of  quo  warranto  Diet, 

to  determine  right  to  franchise).  12  Truckee  &  Tahoe  Turnpike  Road 

Wisconsin:  Sellers  v.  Union  Lum-  Co.  v.  Campbell,  44  Cal.  89,  91,  ap- 
bering  Co.,   39   Wis.   525,   527,   per  plied  by  Rhodes,  J.,  to  a  right  to  col- 
Ryan,  C.  J.  (a  case  of  right  to  take  lect  tolls  on  bridges,  roads,  etc. 
tolls).  is  Bank  of  Augusta  v.   Earle,    13 

See  also  Kinney's  L.  Diet.  &  Gloss.  Pet.  (38  U.  S.)  519,  595,  10  L.  ed.  274. 

10  Crum  v.  Bliss,  47  Conn.  592,  602,  "  United  States:  People's  Rd.  v. 

per  Park,  C.  J.  (a  case  of  transfer  of  Memphis  Rd.,  10  Wall.  (77  U.  S.)  38, 

corporate  franchise),   quoting  Web-  51,  20  L.  ed.   844;  Western  Union 

ster's  Diet.;  Chicago  Municipal  Gas  Teleg.  Co.  v.  Norman,  77  Fed.  13,  22, 

Light  &  Fuel  Co.  v.  Town  of  Lake,  per  Barr,  Dist.  J.  (taxation  of  fran- 

5 


§   3  DEFINITIONS 

§  3.  Other  Definitions  and  Expressions  Classified — Fran- 
chises.— The  word  " franchise"   is   frequently  used  to  denote 

chises);  Jersey  City  Gas-Light  Co.  v.  Minnesota:  Green  v.  Knife  Falls 
United  Gas  Improvement  Co.,  46  Boom  Corp.,  35  Minn.  155,  157,  per 
Fed.  264,  265,  per  Greene,  J.,  case  Vanderburgh,  J. 
aff'd  58  Fed.  323.  Nebraska:  Abbott  v.  Omaha 
Illinois:  Chicago  &  Western  Indi-  Smelting  Co.,  4  Neb.  416,  420  (citing 
ana  Rd.  Co.  v.  Dunbar,  95  111.  571,  also  Angell  &  Ames  on  Corp.  §  4). 
576,  579,  per  Dickey,  J.  New  York:  Smith  v.  Mayor,  etc., 
Iowa:  Cedar  Rapids  Water  Co.  v.  of  New  York,  68  N.  Y.  552,  555,  per 
Cedar  Rapids,  118  Iowa,  234,  238,  Earl,  J.  (taxation;  pier  as  land); 
91  N.  W.  1081,  per  Weaver,  J.  (the  Curtiss  v.  Leavitt,  15  N.  Y.  9,  170, 
court  also  says:  "The  term  'fran-  per  Shankland,  J.  (in  connection  with 
chise '  is  defined  in  various  ways  and  bank's  capacity  or  liability  to  incur 
the  meaning  depends  more  or  less  obligations).  See  Trustees  of  South- 
upon  the  connection  in  which  the  ampton  v.  Jessup,  162  N.  Y.  122,  56 
word  is  employed").  N.  E.  538,  per  Vann,  J.  (case  re- 
Kentucky:  Miller  v.  Common-  verses  42  N.  Y.  Supp.  4,  10  App. 
wealth,  112  Ky.  404,65  S.  W.  828,  per  Div.  456),  who  applies  the  substance 
Guffy,  J.  (gives  same  definition,  but  of  the  definition  in  the  above  text  in 
cites  Bouvier's  L.  Diet.);  Louisville  determining  that  a  right  to  make  a 
Tobacco  Warehouse  Co.  v.  Common-  roadway  and  to  erect  a  bridge  is  a 
wealth,  20  Ky.  L.  Rep.  1047,  1050,  franchise  and  not  a  license. 
48  S.  W.  420,  per  Payntor,  J.  (a  case  South  Dakota:  State  v.  Scougal,  3 
of  corporation  failing  to  report  for  S.  Dak.  55,  62,  15  L.  R.  A.  477,  11 
franchise  tax.  Gives  same  definition,  Ry.  &  Corp.  L.  J.  254,  6  Bkg.  L.  J. 
but  cites  Angell  &  Ames  on  Corp.  §  4).  432,  51  N.  W.  858,  44  Am.  St.  Rep. 

Louisiana:  Maestri  v.  Board  of  As-  756,  per  Corson,  J. 
sessors,  110  La.  517,  526,  34  So.  658,  Texas:  State  v.  Austen  &  North- 
per  Blanchard,  J.  (gives  same  defini-  western  Rd.  Co.,  94  Tex.  530,  532, 
tion,  but  cites  Angell  &  Ames  on  62  S.  W.  1050,  per  Gaines,  C.  J.  [a 
Corp.  §  4,  and  Bouvier's,  also  Blacks,  case  of  taxation  franchises  of  rail- 
L.  Diets.).  road.  Citing  People's  Rd.  v.  Mem- 
Maryland:  Consolidated  Gas  Co.  phis  Rd.,  10  Wall.  (77  U.  S.)  38,  51, 
v.  Baltimore  City,  101  Md.  541,  545-  19  L.  ed.  844]. 

548,  per  McSherry,  C.  J.;  Purnell  v.  Wisconsin:  Sellers  v.  Union  Lum- 

McLane,  98  Md.  589,  592,  56  Atl.  830,  bering  Co.,   39   Wis.   525,   527,   per 

per   Pearce,    J.;    Baltimore   City   v.  Ryan,  C.  J. 

Johnson,  96  Md.  737,  747,  61  L.  R.  A.  Which  do  not  belong  to  the  citizens  of 
568,  54  Atl.  646,  per  Boyd,  J.  (a  case  the  country  generally  by  common  right: 
where  seat  in  stock  exchange  was  The  qualification  [by  Chief  Jus- 
held  not  liable  to  taxation);  State  v.  tice  Taney,  in  Bank  of  Augusta  v. 
Philadelphia,  Wilmington  &  Bait.  Earle,  13  Pet.  (38  U.  S.)  519,  595, 
Rd.  Co.,  45  Md.  361,  379,  24  Am.  10  L.  ed.  274]  '"  which  do  not  belong 
Rep.  511,  per  Robinson,  J.  (a  case  of  to  citizens  of  the  country  generally 
franchise  tax  and  exemption  from  by  common  right'  is  an  important 
taxation.)  one  and  constitutes  the  distinguishing 

6 


DEFINITIONS 


§  3 


a  right  or  privilege,  and  in  a  legal  sense,  franchise  and  liberty- 
are  said  to  be  synonymous  terms.  ''Franchise"  is  also  said 
to  be  synonymous  with  rights,  privileges  and  immunities. 
One  of  the  legal  meanings  of  the  word,  approaching  very 
closely  to  its  primary  signification,  is  freedom,  and  exemption 
or  immunity  from  a  burden  or  duty  to  which  others  are  sub- 
ject. In  its  broad  sense  the  word  "franchise"  is  sometimes 
used  to  denote  all  the  rights,  powers  and  privileges  of  a  cor- 


feature  of  a  franchise.  What  is 
meant  by  this  qualification  is  made 
clear  by  Mr.  Justice  Bradley,  in  a 
recent  case  decided  by  the  Supreme 
Court  of  the  United  States.  *  *  * 
He  says  '  no  private  person  can  estab- 
lish a  public  highway,  public  ferry  or 
railroad,  or  charge  tolls  for  the  use  of 
the  same,  without  authority  from  the 
legislature,  direct  or  derived.  These 
are  franchises.  No  persons  can  make 
themselves  a  body  politic  without 
legislative  authority.  Corporate  ca- 
pacity is  a  franchise.'  California  v. 
Central  Pacific  Rd.  Co.,  127  U.  S.  1, 
40,  41,  32  L.  ed.  346,  9  Sup.  Ct.  6.  Of 
course,  as  the  learned  judge  says, 
this  list  might  be  continued  indefi- 
nitely. But  this  quotation  clearly 
illustrates  the  nature  of  a  franchise. 
Over  all  public  property,  highways, 
navigable  rivers  and  seas,  over  every- 
thing that  belongs  to  the  sovereign, 
the  power  of  the  government  is  abso- 
lute, whether  that  power  is  derived 
from  the  common  law  or  from  the 
State,  or  the  National  Constitution. 
When,  therefore,  the  State  grants  the 
right  thus  belonging  to  the  govern- 
ment, and  not  to  the  citizens  gener- 
ally, as  a  matter  of  right,  it  is  the 
grant  of  a  franchise."  State  v. 
Scougal,  3  S.  Dak.  55,  62,  15  L.  R.  V 
477,  44  Am.  St.  Rep.  756,  per  Cor- 
son, J. 

"In   this   country   it    is   a   special 


privilege  granted  by  the  State,  which 
does  not  belong  to  citizens  of  the 
country  generally  by  common  right. 
This  is  the  distinguishing  feature  of  a 
franchise.  A  right  which  belongs  to 
the  government  when  conferred  upon 
a  citizen  is  a  franchise."  Lasher  v. 
People,  183  111.  226,  233,  per  Cart- 
wright,  C.  J. 

"  This  ordinance  then  undertook  to 
confer  an  especial  privilege  not  en- 
joyed by  the  people  of  the  Territory 
in  common,  and  conferred  such  privi- 
lege in  perpetuity,  for  there  is  no 
limitation  to  it  in  point  of  time,  and 
no  power  of  revocation  reserved  to 
the  city  council  therein.  Such  a 
privilege  is  a  franchise.  In  England 
the  granting  of  a  franchise  was  a 
royal  prerogative,  and  could  only  be 
granted  by  the  Crown,  and  in  the 
Bank  of  Augusta  v.  Earle,  13  Pet. 
(38  U.  S.)  519,  595,  10  L.  ed.  274, 
Chief  Justice  Taney  says:  'Fran- 
chises are  special  privileges,  con- 
ferred by  the  government  upon  in- 
dividuals, which  do  not  belong  to  the 
citizens  of  the  country  generally  of 
common  right.'  It  is  essential  that  a 
franchise  should  be  created  by  a 
grant  from  the  sovereign  authority. 
It  is  doubtful  whether  the  legislature 
cm  delegate  the  power  to  grant  such 
a  franchise  at  all."  Denver  &  S.  Ely. 
Co.  v.  Denver  City  By.  Co.,  2  Colo. 
()7:i,  682,  per  Brazce,  J. 

7 


§    3  DEFINITIONS 

poration,  especially  those  which  are  essential  to  its  operations 
and  management  and  to  make  the  grant  of  value.15  Other 
definitions  given  or  expressions  used  by  the  courts,  in  opinions 
or  decisions,  may  be  briefly  stated  as  follows:  Privileges  or  a 
privilege; 16  a  privilege  with  conditions; 17  a  privilege  vested— 


15  Central  Rd.  &  Banking  Co.  v. 
State  of  Georgia,  54  Ga.  401,  409,  per 
Warner,  C.  J.  (a  case  of  duration  of 
charter  and  right  of  State  to  with- 
draw franchise);  Buchanan  v.  Knox- 
ville  &  Ohio  Rd.  Co.,  71  Fed.  324, 
334,  18  C.  C.  A.  122,  per  Severens, 
Dist.  J.;  Morgan  v.  Louisiana,  93 
U.  S.  217,  23  L.  ed.  860;  State  v. 
Morgan,  28  La.  Ann.  482,  493,  per 
Ludeling,  C.  J.,  in  dissenting  opinion; 
Board  of  Trade  v.  People,  91  111.  82, 
per  Scott,  C.  J.;  Board  of  Water 
Commissioners  of  White  Plains,  Mat- 
ter of,  76  N.  Y.  Supp.  11,  16,  71  App. 
Div.  541,  rev'd  176  N.  Y.  239,  68 
N.  E.  348,  per  Jenks,  J.;  Kinney's 
Law  Diet.  &  Gloss.;  Stroud's  Judic. 
Diet.;  Taylor's  Law  Gloss,  (ed., 
1858),  210.  See  Finch's  Laws  of 
Eng.,  126  (38);  2  Black.  Coram.,  *37. 

16  "  If  there  is  anything  peculiar  in 
the  word  franchise  it  must  include, 
in  any  definition  that  can  be  given  it, 
this  word  'privilege,'  especially 
where  "  a  statute  gives  to  a  corpora- 
tion "the  exclusive  right  to  the  hy- 
draulic powers  and  privileges."  Wil- 
liamette  Mfg.  Co.  v.  Bank  of  British 
Columbia,  119  U.  S.  191,  198,  30  L. 
ed.  384,  7  Sup.  Ct.  187,  per  Miller,  J. 
(a  case  of  foreclosure  of  mortgage, 
and  right  to  sell  or  mortgage  fran- 
chises). 

"Franchises  are  privileges  derived 
from  the  government,  vested  either  in 
individuals  or  private  or  public  cor- 
porations." California  State  Teleg. 
Co.  v.  Alta  Teleg.  Co.,  22  Cal.  398, 
422,  per  Crocker,  J. 

8 


The  term  ("franchise")  "may 
sometimes  be  used  in  a  popular  sense 
as  a  privilege."  Lawrence  v.  Times 
Printing  Co.,  22  Wash.  482,  490,  61 
Pac.  166,  per  Reavis,  J. 

"  A  privilege  in  the  hands  of  a  sub- 
ject which  the  king  alone  can  grant 
will  be  a  franchise."  State  v.  Real 
Estate  Bank,  5  Pike  (5  Ark.),  595, 
599,  41  Am.  Dec.  509,  per  Lacy,  J. 

A  privilege  emanating  from  the 
sovereign  power  of  the  State,  owing 
its  existence  to  a  grant  on  a  prescrip- 
tion presupposing  a  grant.  Hazelton 
Boiler  Co.  v.  Hazelton  Tripod  Boiler 
Co.,  137  111.  231,  28  N.  E.  248,  per 
Scholfield,  J. 

"It  is  a  privilege  which  the  sover- 
eign power  alone  can  grant,  whether 
it  be  the  king  or  the  people  assembled 
in  legislative  bodies."  Kennebec  & 
Portland  Rd.  Co.  v.  Portland  & 
Kennebec  Rd.  Co.,  59  Me.  9,  66,  dis- 
senting opinion  of  Tapley,  J. 

17  "  A  franchise  is  a  privilege  con- 
ferred in  the  United  States  by  the 
immediate  or  antecedent  legislation, 
with  conditions  expressed,  or  neces- 
sarily inferential  from  its  language, 
as  to  the  manner  of  its  exercise  and 
for  its  enjoyment.  To  ascertain  how 
it  is  to  be  brought  into  existence  the 
whole  charter  must  be  consulted  and 
compared."  Woods  v.  Lawrence 
County,  1  Black  (66  U.  S.),  386,  409, 
17  L.  ed.  122,  per  Wayne,  J.  (a  case 
of  charter  of  railroad  company,  with 
authority  in  charter  to  subscribe  to 
stock;  question  whether  to  be  made 
in  prcesenti  or  held  in  abeyance.) 


DEFINITIONS 


§3 


a  privilege  or  authority  vested; 18  a  liberty  or  privilege — 
powers  and  privileges;  19  a  right  or  privilege; 20  a  right,  privilege 
or  power  of  public  concern  which  should  be  reserved  for  pub- 
lic control;21  a  special  privilege;22  a  privilege  granted,  not  a 


18  In  this  country  a  franchise 
"may  be  defined  as  a  privilege 
vested,"  or  "a  privilege  or  authority 
vested  in  certain  persons  by  grant 
from  the  sovereign  authority  in  the 
State,  to  exercise  powers  or  perform 
acts,  which  without  such  grant  they 
could  not  do  or  perform.  A  franchise 
is  jus  publicum  and  necessarily  ex- 
clusive in  its  nature."  Twelfth  St. 
Market  Co.  v.  Philadelphia  &  Read- 
ing Term.  R.  Co.,  142  Pa.  580,  590,  21 
Atl.  989,  per  Thayer,  P.  J.  (a  case  of 
public  market  house,  and  right  of 
eminent  domain  over,  or  right  of  an- 
other corporation  to  appropriate); 
West  Manayunk  Gas  Light  Co.  v. 
New  Gas  Light  Co.,  21  Pa.  Co.  Ct. 
Rep.  378;  Watson  v.  Fairmont  & 
Suburban  Ry.  Co.,  49  W.  Va.  528, 
539,  39  S.  E.  193,  per  Poffenbarger,  J. 

A  franchise  is  "a  privilege  or  au- 
thority vested  in  certain  persons  by 
grant  of  the  sovereign  (with  us  by 
special  statute)  to  exercise  powers  or 
to  do  and  perform  acts  which  without 
such  grant  they  could  not  do  or  per- 
form." Consolidated  Gas  Co.  v. 
Baltimore  City,  101  Md.  541,  545- 
548,  per  McShcrry,  C.  J.;  Tuckahoe 
Canal  Co.  v.  Tuckahoe  Ry.  Co.,  11 
Leigh  (Va.),  42. 

""Franchise  is  a  word  of  exten- 
sive  signification;  it  is  a  liberty  or 
privilege.  In  England,  it  was  the 
powers  and  privileges  inherent  in  the 
Crown  which  subsisted  in  the  hands 
of  a  subject  by  grant  from  the  Crown. 


It  was  therefore  defined  to  be  'a 
royal  privilege  in  the  hands  of  a  sub- 
ject.' In  this  country  the  people 
have  not  only  the  rights  and  privi- 
leges of  English  subjects,  but  they 
have  succeeded  to  all  the  rights  and 
privileges  of  the  Crown."  State  v. 
City  of  Topeka,  30  Kan.  G53,  657,  2 
Pac.  587,  per  Horton,  C.  J.,  (a  case  of 
liquor  license,  and  exaction  of  a 
charge  or  tax  therefor.  See  §  21, 
herein,  as  to  liquor  license). 

"  Franchise  in  its  general  sense  is  a 
liberty  or  privilege."  Rapalej  & 
Lawrence's  L.  Diet. 

20  "The  word  'franchise'  is  gener- 
ally used  to  designate  a  right,  or 
privilege,  conferred  by  law."  State 
v.  Western  Irrigating  Canal  Co.,  40 
Kan.  96,  99,  19  Pac.  349,  per  Hor- 
ton, C.  J. 

"  A  franchise  is  nothing  more  than 
the  right  or  privilege  of  being  a  cor- 
poration, and  of  doing  such  things 
and  such  things  only  as  are  author- 
ized by  the  corporation's  charter." 
Fietsam  v.  Hay,  122  111.  293,  295, 
13  N.  E.  501,  11  West,  Rep.  582,  3 
Am.  St.  Rep.  492,  per  Mulkey,  J.  (a 
case  of  right  to  sell  or  transfer). 
See  also  Morgan  v.  State  of  Louisi- 
ana, 93  U.  S.  217,  23  L.  ed.  860,  per 
Field,  J.;  Chesapeake  &  Ohio  Ry. 
Co.  v.  Miller,  114  U.  S.  176,  185,  29 
L.ed.  121,  5  Sup.  Ct.  813. 

21  "Generalized,  and  divested  of 
the  special  form  which  it  assumes  un- 
der a  monarchical  government  based 


22  "A  franchise  is  generally  under-  of  the  State,  owing  its  existence  to  a 
stood  to  be  a  special  privilege  grant  or  to  prescription  presupposing 
emanating  from  the  sovereign  power    a  grant."    Wilmington  Water  Power 

9 


§3 


DEFINITIONS 


right  taken  away; 23  certain  immunities  and  privileges  in 
which  the  public  have  an  interest — a  privilege  or  immunity  of  a 
public  nature;  24  a  certain  privilege  or  exemption — immu- 


on  feudal  traditions,  a  franchise  is  a 
right,  privilege  or  power  of  public 
concern,  which  ought  not  to  be  exer- 
cised by  private  individuals  at  their 
mere  will  and  pleasure,  but  should  be 
reserved  for  public  control  and  ad- 
ministration, either  by  the  govern- 
ment directly  or  by  public  agents, 
acting  under  such  conditions  and 
regulations  as  the  government  may 
impose  in  the  public  interest,  and 
for  the  public  security.  Such  rights 
and  powers  must  exist  under  every 


form  of  society.  They  are  always 
educed  by  the  laws  and  customs  of 
the  community.  Under  our  system, 
their  existence  and  disposal  are  under 
the  control  of  the  legislative  depart- 
ment of  the  government,  and  they 
cannot  be  assumed  or  exercised 
without  legislative  authority."  Cali- 
fornia v.  Central  Pacific  Rd.  Co.,  127 
U.  S.  1,  40,  32  L.  ed.  150,  8  Sup.  Ct. 
1073,  per  Bradley,  J.;  Ashley  v. 
Ryan,  153  U.  S.  436,  441,  38  L.  ed. 
773,  14  Sup.  Ct.  865. 


Co.  v.  Evans,  166  111.  548,  556,  46 
N.  E.  1083,  per  Magruder,  C.  J. 

In  this  country  "  a  special  privilege 
existing  in  an  individual  by  grant  of 
the  sovereignty  and  not  otherwise 
exercisable."  Mayor  v.  Park  Com- 
missioners, 44  Mich.  602,  604,  7 
N.  W.  180,  per  Cooley,  J.  (a  public 
park  as  public  franchise). 

A  special  privilege  granted  by 
sovereign  authority,  either  to  an 
individual  or  a  corporation,  is  a 
franchise.  State  v.  Portage  City 
Water  Co.,  107  Wis.  441,  83  N.  W. 
697. 

A  special  privilege  emanating  from 
the  government  by  a  legislative  or 
royal  grant  and  vested  in  an  indi- 


vidual person  or  in  a  body  politic  and 
corporate.     Standard  Diet. 

As  all  persons  have  the  right  of 
forming  corporations  upon  complying 
with  the  formalities  required  by  law 
(State  v.  Western  Irrigating  Canal 
Co.,  40  Kan.  96,  99,  19  Pac.  349,  per 
Horton,  J.,  in  case  sustaining  right  of 
irrigation  company  to  sell  property) 
the  above  words  "special  privilege" 
might,  perhaps,  be  open  to  construc- 
tion. See  subsequent  sections  herein 
covering  exclusive  franchises;  see 
Chief  Justice  Taney's  definition,  §  2, 
herein,  see  also  §  3,  herein.  Examine 
Bank  of  California  v.  San  Francisco, 
142  Cal.  276,  280,  75  Pac.  832,  per 
Angellotti,  J. 


23  "  The  real  meaning  of  '  fran- 
chise' is  a  privilege  granted,  not  a 
right  taken  away."  Fresno  Canal, 
etc.,  Co.  v.  Park,  129  Cal.  437,  442, 
62  Pac.  87,  per  McFarland,  J.  (where 
"franchise"  is  held  an  affirmative 
word  denoting  a  grant,  and  that  the 
right  to  collect  certain  rates  is  not 
taken  away  by  the  use  of  the  word. 
See  §  9  herein). 

10 


24  "  If  there  are  certain  immunities 
and  privileges  in  which  the  public 
have  an  interest,  as  contradistin- 
guished from  private  rights,  and 
which  cannot  be  exercised  without 
authority  derived  from  the  sovereign 
power,  it  would  seem  to  me  that  such 
immunities  and  privileges  must  be 
franchises.  *  *  *  If,  in  England, 
a  privilege  in  the  hands  of  a  subject, 


DEFINITIONS 


§  3 


nity; 25  an  exemption  from  a  burden  or  duty  to  which  others  are 
subject; 26  an  exemption  or  immunity  from  ordinary  jurisdic- 
tion; a  constitutional  or  statutory  right  or  privilege; 27  a  right 
reserved  to  the  people  by  the  constitution ; 28  a  right  belonging 
to  the   government ; 29  a  grant  under  authority  of  govern- 


whicb  the  king  alone  can  grant, 
would  be  a  franchise,  with  us,  a 
privilege,  or  immunity  of  a  public 
nature,  which  cannot  legally  be  exer- 
cised without  legislative  grant,  would 
be  a  franchise."  People  v.  Utica  Ins. 
Co.,  15  Johns.  (N.  Y.)  357,  387,  8 
Am.  Dec.  243  (a  case  of  usurpation  of 
franchise  to  carry  on  banking  busi- 
ness as  a  corporation);  State  v.  Real 
Estate  Bank,  5  Pike  (5  Ark.),  595, 
599,  41  Am.  Dec.  509,  per  Lacy,  J.; 
Crura  v.  Bliss,  47  Conn.  592,  602, 
per  Park,  C.  J.;  Chicago  &  Western 
Indiana  Rd.  Co.  v.  Dunbar,  95  111. 
571,  576;  People  ex  rel.  Koerner  v. 
Ridgley,  21  111.  65,  69,  per  Breese,  J. 
(a  case  of  an  information  in  the  na- 
ture of  quo  warranto  in  a  criminal 
proceeding;  held,  not  to  be  allowed 
against  persons  for  assuming  a  fran- 
chise of  a  merely  private  nature,  and 
that  persons  appointed  by  statute  to 
close  up  affairs  of  a  bank  are  not 
officers,  but  mere  trustees,  and  do  not 
exercise  or  enjoy  a  franchise);  Com- 
monwealth v.  City  of  Frankfort,  13 
Bush  (76  Ky.),  185,  189  (a  lottery 
case);  Cumberland  River  Lumber  Co. 
v.  Commonwealth,  6  Ky.  L.  Rep.  295 
(in  abstract  only,  no  opinion); 
Maestri  v.  Board  of  Assessors,  110 
La.  517,  526,  34  So.  658,  per  Blanch- 
ard,  J.;  State,  Clapp,  v.  Minnesota 
Thresher  Mfg.  Co.,  40  Minn.  213,  41 
N.  W.  1020,  3  L.  R.  A.  510;  State  v. 
Mayor,  etc.,  of  New  York,  3  Duer 
(N.  Y.),  119,  144. 

Privileges  and  immunities  of  a  pub- 
lic nature  which  cannot  legally  be 


exercised  without  a  legislative  grant, 
are  franchises,  although  they  never 
existed  in  the  people,  or  could  be 
exercised  by  them  in  their  political 
capacity.  People  v.  Utica  Ins.  Co., 
15  Johns.  (N.  Y.)  357,  8  Am.  Dec. 
243. 

25  State  v.  Morgan,  28  La.  Ann. 
482,  493,  per  Ludeling,  C.  J.,  in  dis- 
senting opinion,  in  case  of  exemption 
from  taxation  and  right  of  trans- 
fer. 

The  term  "franchises"  in  a  "legal 
sense,  contains  the  element  of  a  grant 
or  immunity,  privilege  or  exemption" 
by  public  or  quasi-public  authority. 
Lawrence  v.  Times  Printing  Co.,  22 
Wash.  482,  490,  61  Pac.  166,  per 
Reavis,  J. 

"Central  Rd.  &  Banking  Co.  v. 
State  of  Georgia,  54  Ga.  401,  409, 
per  Warner,  C.  J.  (a  case  of  duration 
of  charter  and  right  of  State  to  with- 
draw franchise). 

27  Louisville  Tobacco  Warehouse 
Co.  v.  Commonwealth,  20  Ky.  L. 
Rep.  1047,  1050,  48  S.  W.  420,  per 
Paynter,  J.  (citing  Webster's  Diet.), 
(a  case  of  corporation  failing  to  re- 
port for  franchise  tax). 

28  People  ex  rel.  Koerner  v.  Ridge- 
ley,  21  111.  65,  69,  per  Breese,  J.  (as  in 
case  of  the  elective  franchise). 

29  "A  franchise  is  a  right  belonging 
to  the  government,  as  a  sovereign, 
yet  committed  in  trust  to  some  offi- 
cer, corporation  or  individual." 
Knoup  v.  Piqua  Bank,  1  Ohio  St. 
603,  613,  per  Corwin,  J. 

11 


§   4  DEFINITIONS 

ment;30  a  grant  of  sovereign  power;31  a  sovereign  power;32 
a  sovereign  prerogative  emanating  from  the  sovereign  authority 
of  the  State,  either  directly  or  through  a  delegated  body.33 

§  4.  "  Franchise  " — As  a  Contract — As  an  Exclusive 
Right.34 — The  definition  given  by  Finch  and  substantially 
adopted  and  followed  by  Blackstone  and  other  authorities,35  has 
been  criticised  as  not  being  strictly  correct  under  our  government 
and  laws,  since  franchises  are  based  in  this  country  upon 
contracts  between  the  sovereign  power  and  a  private  citizen, 
made  upon  a  valuable  consideration  for  purposes  of  public 
benefit  as  well  as  for  individual  advantage;  and  it  is  said  by 
Chancellor  Kent  that  franchises  "contain  an  implied  covenant 
on  the  part  of  the  government  not  to  invade  the  rights  vested, 
and  on  the  part  of  the  grantees  to  execute  the  conditions  and 
duties  prescribed  in  the  grant.  Some  of  these  franchises  are 
presumed  to  be  founded  on  a  valuable  consideration,  and  to 
involve  public  duties,  and  to  be  made  for  public  accommoda- 
tion, and  to  be  affected  with  jus  publicum,  and  they  are  neces- 
sarily exclusive  in  their  nature.  The  government  cannot 
resume  them  at  pleasure,  or  do  any  act  to  impair  the  grant, 
without   a    breach    of   contract."36      Again,  "Franchise"    is 

30  "A  franchise  is  a  grant  under  Augusta  v.  Earle,  13  Pet.  (38  U.  S.) 
authority  of  government,  conferring  519,  595,  10  L.  ed.  274,  per  Taney, 
a  special  and  usually  a  permanent  C.  J.;  State  v.  Scougal,  3  S.  Dak.  55, 
right  to  do  an  act,  or  a  series  of  acts,  62,  44  Am.  St.  Rep.  756,  15  L.  R.  A. 
of    public    concern."       Trustees    of  477. 

Southampton  v.  Jessup,   162  N.  Y.  33  Truckee  &  Tahoe  Turnpike  Road 

122,  126,  56  N.  E.  538,  per  Vann,  J.;  Co.  v.  Campbell,  44  Cal.  89,  91,  per 

case  reverses   10  App.   Div.   456   (a  Rhodes,  J. 

case  of  a  right  "to  make  a  roadway  34  See  §§  22,  23  herein. 

and  erect  a  bridge").  35  See  §  1  herein. 

31  Pennsylvania  Rd.  Co.  v.  Phila-  3e  Kent's  Comm.  (14  ed.),  bottom 
delphia  Belt  Line  Rd.  Co.,  10  Pa.  Co.  p.  723,  *p.  458;  Horst,  Mayor,  etc.,  v. 
Ct.  Rep.  625,  629.  Moses,  48  Ala.   146,  per  Peters,  J., 

32  "It  must  needs  be  a  sovereign  dissenting  in  part;  Maestri  v.  Board 
power  or  something  which  no  sub-  of  Assessors,  110  La.  517,  526,  34  So. 
ject  or  citizen  can  of  right  use."  658,  per  Blanchard,  J.;  State  v.  Real 
Knoup  v.  Piqua  Bank,  1  Ohio  St.  Estate  Bank,  5  Pike  (5  Ark.),  595, 
603,  613,  per  Corwin,  J.    See  Bank  of  599,  41  Am.  Dec.  509,  per  Lacy,  J. 

12 


DEFINITIONS  §   4 

sometimes  used  to  mean  an  exclusive  right  held  by  grant 
from  the  sovereign  power,  such  in  its  nature  that  the  same 
right  or  privilege  cannot  be  subsequently  granted  to  another 
without  the  grant  operating  as  an  invasion  of  the  franchise 
of  the  first  grantee  and  of  his  property  rights.  The  strictly 
legal  signification  of  the  term  is  not,  however,  always  con- 
fined to  exclusive  right  and  the  word  is  used  in  law  to  designate 
powers  and  privileges  which  are  not  exclusive  in  their  nature.37 
It  is  also  declared  that  every  grant  of  a  franchise  is,  so  far  as 
that  grant  extends,  necessarily  exclusive,  and  cannot  be  re- 
sumed or  interf erred  with;  it  is  a  contract  whose  obligation 
cannot  be  constitutionally  impaired.38  In  a  recent  case  in  the 
United  States  Supreme  Court  it  is  held  that  there  are  privileges 
which  may  exist  in  their  full  entirety  in  more  than  one  person, 
and  the  privilege  or  franchise  or  right  to  supply  the  inhabitants 
of  a  city  with  light  or  water  is  of  this  kind;  and  that  a  grant 
of  power  conferring  such  a  privilege  is  not  necessarily  a  grant 
making  that  privilege  exclusive.39  So  a  franchise  may  consist 
solely  in  being  a  corporation  and  carrying  on  business  solely 
in  a  corporate  capacity  and  still  be  also  a  right  which  any 
person  or  persons  may  exercise  without  any  grant  from  the 
State,  and,  therefore,  such  a  right  would  not  be  an  exclusive 
one,  and  the  corporation  would  be  a  private  one  as  distin- 

37  Chicago  &  Western  Indiana  Rd.    Co.,  54  N.  Y.  Supp.  598,  34  App.  Div. 
Co.  v.  Dunbar,  95  111.  571,  576,  per    181. 

Dickey,  J.  North  Dakota:  Patterson  v.  Woll- 

38  Charles  River  Bridge  v.  Warren    man,  5  N.  Dak.  608,  33  L.  R.  A.  536, 
Bridge,  11  Pet.  (36  U.  S.)  420,  604,    67  N.  W.  1040. 

618,  637,  638,  643,  645,  9  L.  ed.  773,  Ohio:  Bank  of  Toledo  v.  City  of 

per  Story,  J.,  in  dissenting  opinion.  Toledo  (Toledo  Bank  v.  Bond),  1 
Examine  the  following  cases:  Ohio  St.  622,  635,  636,  per  Bart- 
Illinois:    Mills    v.    County  of   St.  ley,  C.  J. 

Clair,  7  111.  197.  Pennsylvania:     Rayburn     Water 

New  Jersey:  Millville  Gas  Light  Co.  v.  Armstrong  Water  Co.,  9  Pa. 

Co.  v.  Vineland  Light  &  Power  Co.  Dist.  R.  24,  30  Pittsb.  Leg.  J.  (N.  S.) 

(N.  J.),  65  Atl.  504;  State  v.  Free-  239. 

holders  of  Hudson,  23  N.  J.  L.  206,  M  Water,    Light   and   Gas   Co.   of 

209,  per  Carpenter,  J.  Hutchinson   v.   City  of  Hutchinson, 

New  York:  Staten  Island  Midland  207  U.  S.  385,  28  Sup.  Ct.  135,  case 

R.  Co.  v.  Staten  Island  Electric  R.  affirms  144  Fed.  256. 

13 


§   5  DEFINITIONS 

guished  from  a  public  one  with  no  public  functions  which  it 
would  be  under  obligation  to  perform.40  We  shall,  however, 
consider  this  entire  matter  exhaustively  under  other  sections 
in  this  work. 

§  5.  "  Corporate  Franchise  "  —  Corporate   Franchises. — 

Whenever  a  corporation  is  legally  formed,  the  right  to  be  and 
exist  as  such  and  as  a  corporation  to  do  the  business  specified 
and  authorized  in  the  articles,  constitutes  a  valuable  right 
which  has  been  called  the  "corporate  franchise,"  as  it  is  a 
grant  from  the  sovereign  power.  And  this  applies,  whether  a 
banking  or  a  grocery  business,  or  the  operation  of  a  railroad, 
or  in  fact  any  other  business,  in  which  individuals  may  engage 
without  a  grant  from  the  State,  is  specified  and  in  which  the 
right  to  engage  in  a  corporate  capacity  is  granted.41  But  it  is 
decided  that  a  franchise  granted  to  an  organized  corporation, 
or  to  an  individual  or  individuals,  and  thereafter  transferred  to 
a  corporation,  is  not  a  corporate  franchise  strictly  so  called,  or 
in  any  sense,  except  that  of  being  the  property  of  the  corpora- 
tion.42 As  to  the  term  corporate  franchises,  it  is  declared  that 
it  covers  all  rights  granted  to  a  corporation.43  The  above 
statements,  however,  involve  certain  questions  which  have  been 

40  Twelfth  St.  Market  Co.  v.  Phila-  90  Wis.  550,  63  N.  W.  746;  2  Mora- 
delphia  &  Reading  Term.  R.  Co.,  142  wetz  on  Corp.  §922);  Jersey  City- 
Pa.  580,  590,  21  Atl.  989.  Gas-Light  Co.  v.  Gas  Improvement 

41  Bank  of  California  v.  San  Fran-  Co.,  46  Fed.  264,  265,  per  Greene,  J., 
cisco,  142  Cal.  276,  279,  64  L.  R.  A.  case  aff'd  58  Fed.  323. 

918,  75  Pac.  832,  per  Angellotti,  J.  See  State  v.  Western  Irrig.  Canal 

(citing  Central  Pacific  R.  Co.  v.  Cal-  Co.,  40  Kan.  96,  99,  19  Pac.  349,  per 

ifornia,  162  U.  S.  91,  17  Sup.  Ct.  35,  Horton,  C.  J. 

41  L.  ed.  362;  Horn  Silver  Mining  Co.  Compare  Meyer  v.  Johnson,  53  Ala. 

v.  New  York,  143  U.  S.  305,  36  L.  ed.  237,  324,  per  Manning,  J.;  Young  v. 

164, 12  Sup.  Ct.  403;  Home  Ins.  Co.  v.  Webster  City  &  So.  West.  Ry.  Co., 

New  York,  134  U.  S.  594,  599,  33  L.  75  Iowa,  140,  143,  39  N.  W.  234,  per 

ed.  1025,  10  Sup.  Ct.  593;  State  Rd.  Rothrock,  J.;  Knoup  v.  Piqua  Bank, 

Tax  Cases,  92  U.  S.  575,  23  L.  ed.  1  Ohio  St.  603,  613,  per  Corwin,  J. 

663,  Spring  Valley  Water  Works  v.  42  State  v.  Portage  City  Water  Co., 

Schottler,  62  Cal.  69,  106;  Southern  107  Wis.  441,  83  N.  W.  697. 

Gun  Co.  v.  Laylin,  66  Ohio  St.  578,  43  Atlantic  &  Gulf  R.  Co.  v.  Geor- 

64  N.  E.  564,  566;  State  v.  Anderson,  gia,  98  U.  S.  359,  365,  per  Strong,  J. 

14 


DEFINITIONS  §§  6,  7 

the  subject  of  considerable  discussion  by  the  courts,  and  which 
relate  principally  to  the  power  of  alienation,  taxation  and  the 
nature  of  franchises,  based  upon  such  distinctions  as  exist  be- 
tween the  franchise  to  be  a  corporation  and  other  franchises  or 
rights  and  privileges;  but  these  questions  will  be  fully  con- 
sidered elsewhere  herein  under  their  proper  headings.44 

§  6.  General  Franchise  of  Corporation. —  The  general  fran- 
chise of  a  corporation  is  its  right  to  live  and  do  business  by 
the  exercise  of  the  corporate  powers  granted  by  the  State. 
Such  a  franchise,  however,  gives  the  corporation  no  right  to 
do  anything  in  the  public  highways  without  special  authority 
from  the  State,  or  from  some  municipal  officer  or  body  act- 
ing under  its  authority.  Thus  the  general  franchise  of  a  street 
railroad  is  the  special  privilege  conferred  by  the  State  upon  a 
certain  number  of  persons  known  as  the  corporators  to  become 
a  street  railroad  corporation  and  to  construct  and  operate  a 
street  railroad  upon  certain  conditions,  but  its  privileges  are 
within  the  above  rule  as  to  occupation  of  streets.45 

§  7.  Special  Franchise  of  Corporation. — A  right  granted  to 
a  corporation  to  construct,  maintain  or  operate  in  a  public 
highway  some  structure  intended  for  public  use,  which  except 
for  the  grant  would  be  a  trespass,  is  a  special  franchise,  and 
when  a  right  of  way  over  a  public  street  is  granted  to  a  cor- 
poration with  leave  to  construct  and  operate  a  street  railway 
thereon,  the  privilege  is  known  as  a  special  franchise.46     In  a 

44  See  three  last  preceding  sections  number  of  persons  known  as  the  cor- 
herein,  also  sections  as  to  transfer  or  porators  to  become  a  street  railroad 
alienation;  taxation;  nature  of  fran-  corporation  and  to  construct  and  op- 
chise;  and  distinctions.  erate  a  street  railroad  upon  certain 

45  People  ex  rel.  Metropolitan  St.  conditions,"  but  this  differs  from  a 
Ry.  Co.  v.  Tax  Commissioners,  174  special  franchise);  reargument  de- 
N.  Y.  417,  435,  67  N.  E.  69  (a  case  of  nied,  175  U.  S.  482  (Mem.),  case  af- 
taxation,  etc.  In  this  case  the  court,  firmed,  Metropolitan  St.  Ry.  Co.  v. 
per  Vann,  J.,  says:  "The  general  New  York,  199  U.  S.  1,  50  L.  ed. 
franchise  of  a  street  railroad  company  65,  25  Sup.  Ct.  705.  See  Chap.  IV 
*     *     *     is  the  special  privilege  con-  herein. 

ferred  by  the  State  upon  a  certain        4°  People  ex  rel.  Metropolitan  St. 

15 


§    7  DEFINITIONS 

case  of  taxation  of  a  special  franchise  decided  in  New  York 
the  court,  per  Kenefick,  J.,  says:  "The  plaintiff  insists  that 
the  authority  to  cross  highways  sprang  into  being  with  the 
creation  of  the  corporation,  that  it  is  a  part  of  the  franchise  to 
be  a  corporation,  and  that,  to  constitute  a  special  franchise, 
some  particular  railroad  must  be  grantee  of  the  right,  or 
some  particular  highway  or  highways  must  be  the  subject 
of  the  grant.  As  I  view  it,  this  claim  argues  a  misconception 
of  the  term  'special  franchise.'  As  applied  to  railroads,  this 
species  of  property  is  defined  as  the  'franchise'  right  or  per- 
mission to  construct,  maintain  or  operate  the  same  in,  under, 
above,  on  or  through,  streets,  highways,  or  public  places.47 
A  special  franchise  thus  derives  its  character  from  the  nature 
of  the  grant,  to  wit,  the  right  to  occupy  the  public  ways. 
This  right  does  not  lose  its  character  as  a  special  franchise 
because  it  emanates  directly  from  the  State,  rather  than  in- 
directly through  its  political  subdivisions,  nor  because  it 
comes  into  being  with  the  creation  of  a  corporation,  rather 
than  by  subsequent  action  of  the  legislature  or  its  duly  au- 
thorized municipal  agents.  The  tax  on  its  franchise  to  be  a 
corporation  is  imposed  irrespective  of  whether  it  crosses  any 
highways,  or  of  the  number  of  highways  crossed.  Authority 
to  run  'upon  and  along'  highways  is  conferred  by  the  same 
section  of  the  general  railroad  law  which  confers  the  right  to 
'cross  highways.'  If  the  plaintiff's  argument  is  sound,  then 
a  railroad  might,  under  its  general  powers,  run  for  some  dis- 
tance along  a  highway,  without  possessing  a  special  franchise 
therein  subject  to  taxation."  48 

Ry.  Co.  v.  Tax  Commissioners,  174  Definition  of  special  franchise  and 

N.   Y.   417,   435,   67  N.   E.   69,   per  what  the  term  includes,  under  tax 

Vann,    J.,    reargument    denied,    175  laws  of  New  York,  see  3  Cumming  & 

N.  Y.  482  (Mem.),  case  affirmed,  199  Gilbert's  Annot.  Genl.  Laws  &  Stat- 

U.  S.  1,  50  L.  ed   65,  25  Sup.  Ct.  705.  utes  of  N.  Y.  (ed.  1901),  3876,  3877, 

<7Laws  1899,  c.  712,  §  1.  Laws  1896,  ch.  908,  §  2,  subds.  3,  4, 

48  New  York,  Lackawanna  &  West-  as  amended  by  Laws  1899,  ch.  712 

em  Ry.  Co.  v.  Roll,  66  N.  Y.  Supp.  and  Laws  1901,  ch.  490.    See  chap. 

748,    749,    750,   32   Misc.   321.     See  IV,  herein, 
chapter  herein  on  taxation. 

16 


DEFINITIONS  §    8 

§  8.  Primary  Franchise,  and  Secondary  Franchises  of 
Corporation. — The  right  of  an  incorporated  company  to  be 
a  corporation,  or  the  right  conferred  upon  it  by  the  State, 
to  be  an  artificial  body,  has  been  called  its  primary  franchise, 
and  this  has  been  distinguished  from  what  is  termed  its  second- 
ary franchises,  which  include  the  right  to  carry  on  or  transact 
a  particular  kind  of  business,  as  in  case  of  the  privileges  granted 
to  a  water  company  with  the  right  to  take  tolls,  etc.;  or  the 
right  of  a  railroad  company  to  collect  fares;  or  of  a  toll  road 
company  to  exact  toll  for  services' performed.  This  distinction 
has  been  considered  as  important  in  connection  with  the 
power  of  alienation,  since  in  certain  corporations  other  than 
those  subject  to  public  service  duties  and  obligations,  second- 
ary franchises  may  be  said,  generally,  to  be  those  which  may 
be  alienated,  and  even  in  connection  with  public  utility  cor- 
porations there  are  some  decisions  in  which  the  same  dis- 
tinction is  made  apparent.  So  in  certain  tax  cases  the  dis- 
tinction between  the  franchise  to  be  a  corporation  and  other 
rights,  privileges  and  franchises  of  the  corporation,  has  been 
the   subject   of  much   discussion   and   many  adjudications.49 

*°  Virginia  Canon  Toll  Road  Co.  v.  350,  8  Sup.  Ct.  1385,  restored  to 
People,  22  Colo.  429,  432,  45  Pac.  calendar,  122  U.  S.  636  (Mem.).  (The 
398,  37  L.  R.  A.  711,  per  Camp-  principal  case  is  cited  in  People  v. 
bell,  J.  See  two  last  preceding  sec-  Miller,  83  N.  Y.  Supp.  184,  187,  85 
tions,  and  next  following  section  App.  Div.  211,  which  case  is  re- 
herein.  versed  177  N.  Y.  51,  69  N.  E.  124, 

See  also  the  following  cases:  which  is  cited  in  People  v.  Miller,  86 

United  States:  Adams  Express  Co.  N.  Y.  Supp.  420,  422,  90  App.  Div. 
v.  Ohio  State  Auditor,  166  U.  S.  185,  588.  This  last  case  is  reversed  179 
224,  41  L.  ed.  965,  17  Sup.  Ct.  604,  N.  Y.  49,  71  N.  E.  463);  Memphis  & 
per  Brewer,  J.,  rehearing  denied,  165  Little  Rock  Rd.  Co.  v.  Commis- 
U.  S.  194,  255,  41  L.  ed.  683,  707,  17  sioners,  112  U.  S.  609,  619,  28  L.  ed. 
Sup.  Ct.  305;  Mercantile  Bank  v.  837,  5  Sup.  Ct.  299;  Gordon  v.  Appeal 
Tennessee,  161  U.  S.  160,  171,  40  Tax  Court,  3  How.  (44  U.  S.)  133; 
L.  ed.  656,  16  Sup.  Ct.  466,  per  Western  Union  Teleg.  Co.  v.  Norman, 
Peckham,  J.;  Home  Ins.  Co.  v.  New    77  Fed.  13,  22. 

York,  134  U.  S.  594,  599,  33  L.  ed.        California:  San  Joaquin  &  King's 
1025,  10  Sup.  Ct.  593,  per  Field,  J.,    River  Canal  &  Irrig.  Co.  v.  Merced 
case   affirms    People    v.    Home    Ins.    County,  2  Cal.  App.  593,  595,  597, 
Co.,  92  N.  Y.  328,  also  aff'd  by  di-   599,  84  Pac.  285. 
vided  court  119  U.  S.  129,  30  L.  ed.        Connecticut:  Bridgeport,  City  of, 

2  17 


§  8 


DEFINITIONS 


In  a  Kansas  case,  a  corporation  was   organized  under  state 
laws  for  the  purpose  of  supplying  a  municipality  with  water, 


v.  New  York  &  New  Haven  Rd.  Co., 
36  Conn.  255,  266,  4  Am.  Rep.  63. 

Iowa:  Cedar  Rapids  Water  Co.  v. 
Cedar  Rapids,  118  Iowa,  234,  239,  91 
N.  W.  1081,  per  Weaver,  J.,  citing 
Grand  Rapids  Bridge  Co.  v.  Prange, 
35  Mich.  400,  24  Am.  Rep.  585. 

Kentucky:  Bailey  v.  Southern  Ry. 
Co.,  112  Ky.  424,  430,  61  S.  W.  31, 
per  O'Rear,  J.;  Board  of  Councilmen 
of  City  of  Frankfort  v.  Stone,  108 
Ky.  400,  22  Ky.  L.  Rep.  25,  56  S.  W. 
679. 

Michigan:  Grand  Rapids  Bridge 
Co.  v.  Prange,  35  Mich.  400,  405,  24 
Am.  Rep.  585;  Joy  v.  Jackson  & 
Michigan  Plank  Road  Co.,  11  Mich. 
155,  164,  165,  per  Christiancy,  J. 

New  Jersey:  Lumberville  Bridge 
Co.  v.  Assessors,  55  N.  J.  L.  529,  535, 
537,  25  L.  R.  A.  134,  26  Atl.  711,  per 
Garrison,  J.;  State  Board  of  As- 
sessors v.  Central  Rd.  Co.,  48  N.  J.  L. 
146,  314,  per  Dixon,  J. 

New  York:  People  v.  Knight,  174 
N.  Y.  475,  67  N.  E.  65  (case  reverses 
73  N.  Y.  Supp.  745,  67  App.  Div. 
333);  Smith  v.  New  York,  68  N.  Y. 
552,  555;  Sandham  v.  Nye,  30  N.  Y. 
Supp.  552,  555,  62  N.  Y.  St.  Rep.  198, 
9  Misc.  541,  per  Rumsey,  J. 

Ohio:  Coe  v.  Columbus,  Piqua  & 
Indiana  Rd.  Co.,  10  Ohio  St.  372, 
385,  75  Am.  Dec.  5.18,  per  Gholson,  J. 
[citing  Thomas  v.  Dakin,  22  Wend. 
(N.  Y.)  71];  Pierce  v.  Emery,  32  N. 
H.  484-507. 

Pennsylvania:  Monongahela 

Bridge  Co.  v.  Pittsburg  &  Birming- 
ham Traction  Co.,  196  Pa.  25,  46 
Atl.  99;  Shamokin  Valley  Rd.  Co.  v. 
Livermore,  47  Pa.  465,  468,  86  Am. 
Dec.  552.  Agnew,  J. 

Texas:  State  v.  Austin  &  North- 

18 


western  Rd.  Co.,  94  Tex.  530,  532,  62 
S.  W.  1050,  per  Gaines,  C.  J. 

Vermont:  Miller  v.  Rutland  & 
Washington  Rd.  Co.,  36  Vt.  452,  494, 
per  Barrett,  J.,  quoting  from  Bank  of 
Middlebury  v.  Edgerton,  30  Vt.  182, 
190. 

Virginia:  Tuckahoe  Canal  Co.  v. 
Tuckahoe  Ry.  Co.,  11  Leigh  (Va.),  42. 

Wisconsin:  Linden  Land  Co.  v. 
Milwaukee  Elect.  Ry.  &  Light  Co., 
107  Wis.  493,  513,  83  N.  W.  858; 
Attorney  General  v.  Chicago  &  North- 
western Rd.  Co.,  35  Wis.  425,  560, 
per  Ryan,  C.  J.,  quoted  in  Brady  v. 
Moulton,  61  Minn.  185,  186,  per 
Mitchell,  J. 

Examine  Baldwin's  Amer.  Rd. 
Law  (ed.  1904),  26. 

See  Thompson's  Comm.  on  Corp. 
§  257  (where  the  franchise  to  be  a 
corporation  is  designated  a  primary 
franchise,  and  that  of  the  right  to 
carry  on  a  certain  business,  as  the 
right  to  maintain  and  operate  a 
railway,  a  secondary  franchise);  Id. 
§  694  (where  it  is  said  that  the 
primary  franchise  may  be  exercised 
only  in  State  where  created,  while  the 
secondary  franchise  may  by  comity, 
or  unless  by  prohibited,  be  exercised 
in  any  State.  See  also  Id.  §  7884); 
Id.  §§  5336,  5341-5352,  (where  he 
says:  "The  secondary  franchises  of  a 
corporation,  that  is,  those  peculiar 
and  exclusive  privileges  which  do  not 
consist  in  the  right  of  being  a  corpora- 
tion, are  property,  and  hence  are 
alienable");  Id.  §  5353  (where  under 
the  section  heading  "  Franchise  to  be 
a  corporation  not  alienable,"  the  au- 
thor makes  the  distinction  "between 
what  may  be  regarded  as  primary, 
and    what    as    secondary   franchises. 


DEFINITIONS  §   9 

and  a  municipality  granted  to  it,  by  ordinance,  the  right  to 
erect,  construct  and  maintain  waterworks  in  the  city  and  to 
occupy  its  streets  for  the  laying  of  pipes,  erecting  hydrants, 
and  other  privileges  usually  accorded  to  water  companies, 
including  the  right  to  take  tolls,  etc.,  for  a  certain  period, 
and  it  was  declared  by  the  court,  and  the  decision  was  based 
thereon,  that  such  rights  to  occupy  the  streets,  erect  hydrants, 
supply  water,  etc.,  were  secondary  franchises,  differing  and 
distinct  from  the  franchise  to  be  a  corporation,  received  from 
the  State  which  was  essential  to  the  creation  and  continued 
existence  of  the  corporation,  to  its  right  to  live,  to  exist  as  an 
artificial  being.  The  court,  per  Smith,  J.,  said:  "The  rule  is 
that  the  primary  franchise  of  being  a  corporation  vests  in  the 
individuals  who  compose  it  and  not  in  the  corporation  itself, 
while  the  secondary  franchises,  such  as  the  right  of  a  railway 
to  construct  and  operate  its  road,  or  the  right  to  operate  a 
water  plant  and  collect  water-rents  are  vested  in  the  corpora- 
tion." 50 

§  9.  "  Franchise  "  under  Constitutions  and  Statutes. — As 
appears  elsewhere,  herein,  the  word  "franchise"  has  various 
meanings,  and  it  is  difficult  to  define  the  term  as  used  under 
constitutions  and  statutes,  since,  as  a  rule,  it  is  a  question  of 
construction  in  each  particular  case  precluding  any  definition 
applicable  to  all  cases.  Thus,  although  a  state  constitution 
declares  that  the  right  to  collect  rates  or  compensation  for 
the  use  of  water  is  a  "franchise,"  still  such  word  is  an  affirmative 
one  denoting  a  grant,  instead  of  a  negative  term  signifying 
prohibition,  and  docs  not  take  away  the  right  to  collect  water 

The  franchise  of  being  a  corporation  of  dissolution,"  as  "the  peculiar  priv- 

— of  having  a  corporate  existence —  ileges    or    rights"    of   a   corporation 

is  a  franchise  of  the  former  character;  "which  it  may  have  received  from 

and  the  franchise  of  carrying  on  a  the  legislature  under  its  charter  or 

particular  business  or   holding  par-  incorporating  act,  or  from  a  munici- 

ticular  property  is  of  the  latter  char-  pal  corporation  under  an  ordinance 

acter");    Id.     §§5356,    6140,    6747  by  way  of  a  license"), 
(where  secondary  franchises,  as  con-       50  State  v.  Topeka  Water  Co.,  61 

8idered  in  connection  with  the  "effect  Kan.  547,  558-560,  60  Pac.  337. 

19 


§9 


DEFINITIONS 


rates  or  compensation,  fixed  by  contract  between  the  parties 
for  the  irrigation  of  lands,  where  no  special  statute  regulates 
such  rates.51  So  the  words  "  privileges,  immunities  or  fran- 
chises," used  in  a  constitution  may  be  intended  to  refer  to 
things  of  the  same  or  similar  general  nature.52  But  it  is  de- 
clared that  where  the  term  "franchise"  is  used  in  a  statute 
or  elsewhere  in  the  law,  it  is  generally,  if  it  is  not  always, 
understood  as  a  special  privilege  conferred  by  grant  from 
the  State  or  sovereign  power,  as  being  something  not  belong- 
ing to  the   citizen  of  common  right.53     Again,   " franchise" 


51  Fresno  Canal  &  Irrigation  Co.  v. 
Park,  129  Cal.  437,  62  Pac.  87.  In 
this  case  the  court,  per  McFarland,  J., 
said:  "Section  2,  of  Art.  XIV,  Con- 
stitution of  California,  which  is 
mainly  relied  on,  is  as  follows:  'The 
right  to  collect  rates  or  compensation 
for  the  use  of  water  supplied  to  any 
county,  city  and  county,  or  town,  or 
the  inhabitants  thereof,  is  a  fran- 
chise, and  cannot  be  exercised  except 
by  authority  of  and  in  the  manner 
prescribed  by  law.'  Appellants  seem 
to  lay  great  stress  on  the  fact  that  the 
word  'franchise'  is  used  in  this  sec- 
tion, as  if  '  franchise '  were  a  negative 
word  signifying  prohibition  instead  of 
being,  as  it  is,  an  affirmative  word 
denoting  a  grant.  Whatever  right  a 
ditch  owner  had  to  sell  and  distribute 
water  at  the  time  the  Constitution 
was  adopted,  or  afterward,  was  not 
destroyed  because  it  was  called  in 
the  Constitution  a  franchise.  The 
real  meaning  of '  franchise '  is  a  privi- 
lege granted — not  a  right  taken  away; 
but  the  word  was  evidently  em- 
ployed in  section  2  mainly  for  the 
purpose  of  emphasizing  the  general 
declaration  in  section  1,  that  the  use 
of  water  for  sale,  distribution,  etc.,  is 
a  public  use,  and  with  the  notion  no 
doubt,  that  calling  it  a  franchise 
would  make  more  clear  and  certain 

20 


the  intent  to  subject  it  to  State  regu- 
lation. In  all  other  respects  the 
meaning  and  effectiveness  of  sec- 
tion 2  would  be  the  same  if  the  words 
'is  a  franchise,  and'  were  not  there." 

52  Dike  v.  State,  38  Minn.  366,  38 
N.  W.  95.  The  court,  per  Mitchell,  J., 
says:  "In  construing  the  meaning  of 
the  word  'privilege,'  as  used  in  the 
constitution,  the  maxim  noscitur  a 
sociis,  is  applicable.  The  prohibition 
is  against  granting  special  or  exclu- 
sive 'privileges,  immunities,  or  fran- 
chises.' The  three  terms  are  evi- 
dently all  intended  to  refer  to  things 
of  the  same  or  sim  ilar  general  nature. 
An  '  immunity '  has  been  defined  as 
an  exemption  from  any  charge,  duty, 
office,  tax,  or  imposition;  a  'fran- 
chise' has  been  defined  to  be  a 
particular  privilege  conferred  by  the 
sovereign  power  of  the  State,  and 
vested  in  individuals;  and  while  it  is 
not  necessary,  and  would  be  perhaps 
unwise,  to  attempt  to  give  a  com- 
plete definition  of  any  of  these  terms, 
yet  it  is  evident  that  the  word  '  privi- 
lege,' as  used  in  this  connection, 
means,  generally,  a  right  or  im- 
munity granted  to  a  person  either 
against  or  beyond  the  course  of  the 
common  or  general  law." 

53  City  of  Bridgeport  v.  New  York 
&  New  Haven  Rd.  Co.,  36  Conn.  255, 


DEFINITIONS  §   9 

under  a  statute  is  defined  as  a  privilege  emanating  from  the 
sovereign  power  of  the  State,  owing  its  existence  to  a  grant, 
or,  as  at  common  law,  to  prescription  which  presupposes  a 
grant  and  invested  in  individuals  or  a  body  politic,  something 
not  belonging  to  the  citizen  as  of  common  right.54  So  in  an- 
other case  the  word  "franchise"  in  a  statute  conferring  a 
right  of  appeal  is  held  not  to  include  a  liberty  or  privilege 
merely,  but  that  the  word  is  used  in  a  restricted  sense  of  a 
special  privilege  conferred  by  grant  from  the  State  or  sovereign 
power,  as  being  something  not  belonging  to  the  citizen  of 
common  right.55  The  words  "  public  *  *  *  franchise,"  in 
a  remedial  statute  as  to  usurping,  etc.,  unlawfully  holding  or 
exercising  any  "public  office  or  franchise,"  is  construed  as 
including  the  exercise  of  the  right  to  use  city  streets  for  laying 
gas  pipes.56  And  where  a  statute  57  provided  for  the  bringing 
of  an  action  by  the  attorney  general  in  the  name  of  the  State, 
against  the  parties  offending,  "when  any  person  shall  usurp, 
intrude  into,  or  unlawfully  hold  or  exercise  *  *  *  any 
franchise  within  this  State,"  etc.,  it  was  held,  that  the  section 
contained  no  word  of  limitation  as  in  the  statute  of  Anne,58 
and  was  not  an  adoption  therefrom  with  the  English  construc- 
tion thereof,  but  was  taken  from  the  New  York  statute,59  and 
that  the  word  "franchise"  was  used  in  its  general  sense  so  as  to 
include  franchises,  whether  corporate  or  not.60  Again,  a  street 
railway  franchise  may  be  such  a  "franchise"  under  a  statute 

quoted  in  Chicago   &  Western  Indi-  to  be  a  relator  cannot  exist  in  be- 

ana  Rd.  Co.  v.  Dunbar,  95  111.  571,  half  of  anyone  to  cause  a  prosecu- 

575.  tion  to  be  carried  on  in  an  informa- 

54  Hazelton   Boiler   Co.    v.   Tripod  tion). 

Boiler  Co.,  137  111.  231,  232,  28  N.  E.  56  State  ex  rel.  Attorney  General  v. 

248,  per  Scholfield,  C.  J.  (statute  in  Seattle  Gas  &  Electric  Co.,  28  Wasb. 

this  case  created  appellate  court,  and  488,  68  Pac.  496,  rehearing  denied,  70 

the  quest  ion  of  right  to  appeal  arose,  Pac.  114;  Ballinger's  Annot.  Codes, 

also  holding  thai    a  corporate  name  §  5780,  subd.  1. 

'id   a    trade-mark   was  not,   a  "Wis.  Stat.,  1898,  §3466. 

franchise).     Same  definition  in  Board  58  Stat.  9  Anne,  c.  20,  §  4. 

of  Trade  of  Chicago  v.  The  People,  91  59  2  Rev.  Stat.  (N.  Y.,  1829),  c.  9, 

111.  80,  82.  art.  2,  §  28. 

55  Hesinp;  v.  Attorney  General,  104  60  State  v.  Portage  City  Water  Co., 
111.  292,  296  (holding  that  a  franchise  107  Wis.  441,  83  N.  W.  697. 

21 


§9 


DEFINITIONS 


as  may  be  annulled  by  quo  warranto  upon  sufficient  cause.61 
And  where  the  word  " franchise"  is  used  in  a  statute  pro- 
viding for  taxation  62  such  word  is  held  to  be  a  generic  term 
and  to  include  all  rights  and  privileges  granted  to  or  exer- 
cised by  a  person,  association,  copartnership,  joint-stock 
company,  or  corporation  engaged  in  the  express,  telegraph, 
or  telephone  business  in  the  State.63  So  under  the  Kentucky 
statute64  when  an  assessment  is  made  of  the  "franchise"  of 
a  railroad  company  it  is  decided  that  it  necessarily  embraces 
all  the  intangible  property  of  the  company,  as  the  word  "fran- 
chise" is  not  used  in  its  strict  technical  sense.65  In  New 
York  "the  statute,  which  is  an  amendment  of  the  General 
Tax  Law,  declares  in  substance,  that  the  right,  authority  or 
permission  to  construct,  maintain  or  operate  some  structure 
intended  for  public  use,  'in,  under,  above,  on  or  through  streets, 
highways  or  public  places,'  such  as  railroads,  gas  pipes,  water 
mains,  poles  and  wires  for  electric,  telephone  and  telegraph 
lines,  and  the  like,  is  a  special  franchise." 66 


01  State  ex  rel.  Vilter  Mfg.  Co.  v. 
Milwaukee,  Burlington  &  Lake  Ge- 
neva Rd.  Co.,  116  Wis.  142,  92  N.  W. 
546. 

82  Sec.  78  of  the  new  Revenue  Law, 
§  10,  477,  Cobbey's  Ann.  Stat.,  1903. 

63  Western  Union  Teleg.  Co.  v. 
City  of  Omaha  (Neb.,  1905),  103 
N.  W.  84. 

64  Ky.  Stat.,  1903,  §§4077-4080. 

65  Commonwealth  v.  Chesapeake  & 
Ohio  Ry.  Co.,  28  Ky.  L.  Rep.  1110, 
91  S.  W.  672.  See  also  Adams  Ex- 
press   Co.    v.    Kentucky    (Weir    v. 


Norman),  166  U.  S.  171,  41  L.  ed. 
960,  17  Sup.  Ct.  527,  under  Ky. 
Stat.,  1894,  §§  4077-4081. 

66  People  ex  rel.  Metropolitan 
Street  Ry.  Co.  v.  Tax  Commissioners, 
174  N.  Y.  417,  436,  67  N.  E.  69,  per 
Vann,  J.,  reargument  denied  175 
N.  Y.  482  (Mem.),  case  aff'd  199 
U.  S.  1,  50  L.  ed.  65,  25  Sup.  Ct.  705. 
See  People  v.  Priest,  77  N.  Y.  Supp. 
382,  75  App.  Div.  131,  under  Tax 
Law  §  2,  subd.  3,  as  amended  by 
Laws,  1899,  c.  712.  See  also  chapter 
herein  on  Taxation. 


22 


ENUMERATION    OF    FRANCHISES 


§  10 


CHAPTER  II. 


ENUMERATION   OF   FRANCHISES. 


10.  Enumeration     of      Franchises    §   17 

Generally. 

11.  Corporations  Generally — Mem-        18, 

bers'  Rights — Membership —       19. 
Corporate    Name  —  Munici-       20. 
pal  Corporations  —  "  Public 
Franchise." 

12.  Corporations  Continued — What 

Franchises     are     Embraced 
Generally. 

13.  Corporations  Continued — For- 

eign Corporations  Generally. 

14.  Common     Carriers — Railroads 

— Street  railroads. 

15.  Bridges — Roadways  —  Ferries 

— Canals. 

16.  Right  to  Supply  Water,  Gas  or 

Electricity. 


Right  to  Tolls,  Fares,  Rates  or 
Wharfage. 

18.  Banking — Insurance. 

19.  Eminent  Domain. 

20.  Exemption  or  Immunity  from 
Taxation,  Jury  Duty  and 
Working  on  Public  Roads. 

21.  Political  Rights,  "  Elective  Suf- 
frage," "Elective  Fran- 
chise" or  Freedom — Public 
Office — Attorney  or  Coun- 
sellor— Right  to  Preside — 
Appointment  of  Professors 
— Liquor  License — "  Com- 
modities " — Fishery— Public 
Market  —  Patent  Right  — 
Trade-mark — "  News  Con- 
tract." 


§  10.  Enumeration  of  Franchises  Generally. — Franchise 
is  a  word  of  extensive  signification,  and  various  kinds  of  fran- 
chises exist.1    And  it  is  said  that  whatever  is  of  large  public 


1  "The  kinds  of  franchises  are  vari- 
ous and  almost  infinite."  Spring 
Valley  Water  Works  v.  Schottler,  62 
Cal.  69,  106,  per  Thornton,  J.,  quot- 
ing 2  Black.  Comm.  37;  Central  Rail- 
road &  Banking  Co.  v.  State  of 
Georgia,  54  Ga.  401,  409,  per  War- 
ren, C.  J.;  Louisville  Warehouse  Co. 
v.  Commonwealth,  20  Ky.  L.  Rep. 
1047,  1051,  48  S.  W.  420. 

"Franchises  are  divers,  says  Finch, 
and  almost  infinite."  Common- 
wealth v.  Arrison,  15  Serg.  &  R.  (Pa.) 
127,  130,  per  Tilghman,  C.  J. 


Franchises  are  extremely  numerous 
and  of  various  kinds.  3  Greenleaf's 
Crui.se  on  Real  Prop.,  *260.  See  also 
next  following  note. 

"  The  word  '  franchise  '  is  used  with 
various  meanings.  In  its  broad  and 
popular  sense  it  embraces  the  right 
of  trial  by  jury,  the  right  to  habeas 
corpus,  the  right  to  vote  at  an  elec- 
tion, the  right  to  membership  in 
voluntary  associations  or  corpora- 
tions, the  right  to  hold  an  office,  and 
perhaps  other  rights."  Chicago  & 
Western  Indiana  IM.  Co.  v.  Dunbar, 

23 


§  io 


ENUMERATION    OF    FRANCHISES 


concern,  so  that  a  want  of  regulation  and  control  will  in- 
juriously affect  the  public  in  its  general  interests,  may  be  the 
subject  of  a  franchise.2  There  are,  however,  certain  classes  of 
franchises  which  have  been  enumerated  as  existing  in  England 
but  which  are  unknown  here  and  can  have  no  application 
under  the  laws  of  this  country.3 


95  111.  571,  575,  per  Dickey,  J.     A 

case  of  what  constitutes  a  franchise 
under  a  state  constitution  and  also  of 
appeal. 

2  People  v.  Loew,  44  N.  Y.  Supp. 
43,  26  Civ.  Proc.  132,  19  Misc.  248. 

3  "  Franchises  are  of  various  kinds, 
such  as  the  privilege  of  exercising  the 
powers  of  a  corporation,  of  having 
waifs,  wrecks,  estrays;  the  right  to 
collect  tolls  on  a  road,  bridge,  ferry 
or  wharf;  the  privilege  of  fishing,  or 
taking  game  and  numerous  others 
which  might  be  referred  to.  In  Eng- 
land a  large  class  of  franchises  exist 
which  are  unknown  to  our  law,  but 
some  are  of  more  extensive  use  than 
here,  especially  corporate  franchises." 
California  State  Teleg.  Co.  v.  Alta 
Teleg.  Co.,  22  Cal.  398,  422,  per 
Crocker,  J. 

The  word  is  "frequently  used  to 
denote  the  right  of  voting  for  a  mem- 
ber to  serve  in  Parliament,  which  is 
called  the  parliamentary  franchise  or 
the  right  of  voting  for  an  alderman  or 
town  councillor,  which  is  called  the 
municipal  franchise."  Mozley  & 
Whiteley's  Law  Diet. 

"  The  franchises  of  Forest,  Chase, 
Park,  Free  Warren,  Manor,  Game, 
Court-leet,  Waif,  Wreck,  Estray, 
Treasure-trove,  Royal  Fish,  Goods  of 
Felons,  and  Deodands,  which  form 
the  body  of  this  title  in  Mr.  Cruise's 
work,  have  no  existence  in  the 
United  States,  and  afford  but  few  and 
remote  illustrations  of  any  principles 
of  our  law  of  real  property.     Those 

24 


subjects,  therefore,  are  entirely  omit- 
ted in  this  edition.  The  others  are 
retained,  for  the  sake  of  the  doctrines 
involved  in  them,  which  are  useful 
and  interesting  to  the  American  law- 
yer." Note  to  3  Greenleaf's  Cruise 
on  Real  Prop.,  *  261. 

None  of  the  franchises  enumerated 
by  Blackstone  "except  corporations 
having  the  right  to  take  tolls  at 
bridges,  wharfs,  etc.,  have  any  appli- 
cation, under  our  laws.  If,  then,  his 
enumeration  is  to  be  taken,  the 
number  of  cases  is  small  in  which  a 
franchise  may  be  involved.  If  the 
Constitutional  Convention  and  the 
General  Assembly  used  the  term  ac- 
cording with  its  strict  legal  import, 
and  we  must  presume  they  did,  then 
in  this  country  it  can  only  embrace 
corporations,  ferries,  bridges,  wharfs 
and  the  like,  where  tolls  are  author- 
ized to  be  taken,  and  we  may  add  the 
elective  franchise  as  it  is  granted  by 
the  constitution  to  a  portion  of  the 
people  to  elect  their  officers.  If  others 
exist  they  do  not  occur  to  us  at  this 
time."  People  v.  Holtz,  92  111.  426, 
429,  per  Curiam. 

"  The  right  to  create  a  corporation, 
assuredly,  is  a  franchise;  so  is  the 
right  to  create  an  office,  or  to  coin 
money,  or  to  appropriate  private 
property,  or,  in  England,  to  take 
royal  fish,  to  work  mines  of  gold  and 
silver,  to  take  waifs,  wrecks,  estrays, 
and  treasure-trove,  to  hold  courts 
baron,  or  courts  leet,  to  keep  warrens, 
forests,  parks  and  chases,  and  many 


ENUMERATION    OF    FRANCHISES 


§    11 


§  11.  Corporations  Generally— Members'  Rights — Mem- 
bership— Corporate  Name — Municipal  Corporations — "  Pub- 
lic Franchise." — Under  our  laws  corporations  or  bodies  politic 
are  the  most  usual  franchises ; 4  and  the  privilege  or  right  to 


privileges  of  the  like  description. 
A  franchise  is  a  right  belonging  to  the 
government,  as  a  sovereign,  yet,  com- 
mitted, in  trust,  to  some  officer,  cor- 
poration or  individual.  On  page  279 
of  the  third  volume  of  Cruise's  Di- 
gest, it  is  said:  'A  franchise  is  a  royal 
privilege,  or  branch  of  the  King's 
prerogative,  subsisting  in  a  subject 
by  a  grant  from  the  Crown.'  It  must 
needs  be  a  sovereign  power,  or  some- 
thing which  no  subject  or  citizen  can, 
of  right,  use.  In  England,  as  is  well 
known,  there  were  certain  fish,  as 
whale  or  sturgeon,  to  which,  when 
thrown  ashore  or  caught  near  the 
coast,  the  King  is  entitled.  Mines  of 
gold  and  silver,  also,  were  the  King's 
property  and  part  of  his  revenue. 
All  the  game  in  the  kingdom,  be- 
longed originally  to  him,  as  did  all 
waifs,  wrecks,  estrays,  treasure-trove, 
deodands,  etc.  None  but  the  King, 
at  first,  could  have  a  forest,  a  chase, 
a  warren,  or  a  park.  1  Black.  Comm., 
chap.  8;  3  Cruise's  Digest,  title  28, 
chap.  1.  In  England,  therefore,  all 
such  rights,  when  delegated  to  a  sub- 
ject, are  franchises.  *  *  *  It  is 
plain  that  many  things  are  the  sub- 
jects of  a  franchise,  in  England,  which 
are  not  such  in  this  country."  Knoup 
v.  Piqua  Bank,  1  Ohio  St.  603,  613, 
614,  per  Corwin,  J.  See  also  Arnold 
v.  Mundy,  6  N.  J.  L.  1,  87,  10  Am. 
Dec.  266,  per  Kirkpatrick,  C.  J. 

"Franchises  may  be  divided  into 
two  classes — those  which  the  King 
has  in  his  own  hands  as  parcel  of  the 
flowers  of  his  crown,  and  those  which 
have  no  existence  until  created  by  the 
King.     *     *     *    This   distinction  is 


well  settled  and  was  recognized  in  the 
case  of  Duke  of  Northumberland  v. 
Houghton,  L.  R.  5  Ex.  127.  Fran- 
chises which  belong  to  the  King  by 
right  of  his  prerogative  cannot  pass 
under  the  general  word  '  franchise '  in 
a  grant  from  the  Crown  because  they 
do  not  exist  as  such  until,  created  by 
grant,  they  are  part  of  the  preroga- 
tive; if  created  and  resumed  they 
merge  in  the  prerogative.  But  fran- 
chises which  are  no  part  of  the  flowers 
of  the  Crown  have  no  existence  until 
the  Crown  expressly  creates  them, 
and  these  if  resumed  do  not  merge." 
Attorney  General  v.  Trustee  of  Brit- 
ish Museum,  Law  Rep.  (1903)  2  Ch. 
Div.  598,  612,  613,  per  Farwell,  J. 
(holding  that  treasure-trove  cannot 
be  claimed  under  a  general  grant  of 
franchises,  but  must  itself  be  ex- 
pressly granted  and  when  so  granted 
it  becomes  a  franchise  in  the  grantee). 

4  Spring  Valley  Water  Works  v. 
Schotler,  62  Cal.  69,  106,  per  Thorn- 
ton, J.,  quoting  3  Kent's  Comm.  459; 
State  ex  rel.  Waring  v.  Georgia 
Medical  Society,  38  Ga.  608,  626,  95 
Am.  Dec.  408,  quoting  Bouvier's  L. 
Diet.  593;  People  ex  rel.  Koemer  v. 
Ridgley,  21  111.  65,  69  (an  information 
in  nature  of  quo  warranto  in  a  crimi- 
nal proceeding);  Kennebec  &  Port- 
land Rd.  Co.  v.  Portland  &  Kennebec 
Rd.  Co.,  59  Me.  9,  66,  dissenting 
opinion  of  Taplcy,  J.  (a  mortgage  and 
foreclosure  of  a  railroad  franchise, 
etc.),  quoting  3  Kent's  Comm.  459. 

"  The  word  '  franchise '  is  often  used 
in  the  sense  of  privileges  generally, 
but  in  its  more  appropriate  and  legal 
sense  the  term  is  confined  to  such 

25 


11 


ENUMERATION    OF   FRANCHISES 


be  or  exist  as  a  corporation  is  declared  to  be  of  itself  a  fran- 
chise 5  belonging  to  members  of  the  corporation.6    But  it  is 


rights  and  privileges  as  are  conferred 
upon  corporate  bodies  by  legislative 
grant."  Fietsam  v.  Hay,  122  111.  293, 
294,  13  N.  E.  501,  11  West.  Rep.  582, 
3  Am.  St.  Rep.  492,  per  Mulkey,  J. 
(a  case  of  right  to  sell  or  transfer). 

5  People  v.  O'Hair,  128  111.  20,  21 
N.  E.  211,  per  Schofield,  J.  (a  case  of 
quo  warranto  and  whether  franchise 
involved  on  appeal);  Louisville  To- 
bacco Warehouse  Co.  v.  Common- 
wealth, 20  Ky.  L.  Rep.  1047,  1050, 
48  S.  W.  420,  quoting  from  People  v. 
Utica  Ins.  Co.,  15  Johns.  (N.  Y.)  357, 
387;  Pierce  v.  Emery,  32  N.  H.  484, 
507;  State  v.  Austin  &  Northwestern 
Rd.  Co.,  94  Tex.  530,  532,  62  S.  W. 
1050,  per  Gaines,  C.  J.  (a  case  of  rail- 
way taxation.) 

See  also  the  following  cases: 

United  States:  Central  Pacific  Rd. 
Co.  v.  California,  162  U.  S.  91,  125, 
40  L.  ed.  903,  16  Sup.  Ct.  766,  where 
it  is  said  that  "  corporate  capacity  is 
a  franchise"  (a  case  of  taxation); 
Mercantile  Bank  v.  Tennessee,  161 
U.  S.  171,  40  L.  ed.  656,  16  Sup.  Ct. 
466,  per  Peckham,  J.;  Memphis  & 
Little  Rock  Ry.  Co.  v.  Railroad 
Commissioners,  112  U.  S.  609,  610, 
5  Sup.   Ct.   299,   28  L.   ed.   837. 

California:  Spring  Valley  Water 
Works  v.  Schottler,  62  Cal.  69  (under 
state  constitution). 

Colorado:  Iron  Silver  Mining  Co. 
v.  Cowie,  31  Colo.  450,  72  Pac.  1067 
(upon  the  question  of  mandamus  and 
the  jurisdiction  of  the  Supreme  Court 
to  review  judgment,  a  franchise  was 
held  to  be  involved,  where  the  legal  ex- 
istence of  the  corporation  was  treated 
by  both  parties  as  the  sole  issue). 


Illinois:  People  ex  rel.  v.  Cooper 
139  111.  461,  29  N.  E.  872  (franchise 
involved  and  appeal  lies  where  legal 
existence  of  drainage  district  and  of 
commissioner's  powers  the  question 
in  issue);  Porter  v.  Rockford,  Rock 
Island  &  St.  Louis  Rd.  Co.,  76  111. 
561,  573,  per  Scholfield,  J. 

Iowa:  Cedar  Rapids  Water  Co.  v. 
Cedar  Rapids,  118  Iowa,  234,  239, 
91  N.  W.  1081,  per  Weaver,  J. 

Kentucky:  Board  of  Councilmen 
of  City  of  Frankfort  v.  Stone,  108 
Ky.  400,  22  Ky.  L.  Rep.  25,  56 
S.  W.  679  (a  case  of  taxation 
and  apportionment  of  tax.  In  this 
case  a  distinction  was  made  be- 
tween the  franchise  itself  and  the 
means  of  exercising  the  franchise, 
Id.,  407). 

Michigan:  See  Grand  Rapids 
Bridge  Co.  v.  Prange,  35  Mich.  400, 
405,  24  Am.  Rep.  585. 

Minnesota:  State  v.  Minnesota 
Thresher  Mfg.  Co.,  40  Minn.  213, 
225,  226,  41  N.  W.  1020,  3  L.  R.  A. 
510,  per  Mitchell,  J. 

New  York:  People  ex  rel.  Metro- 
politan Street  Ry.  Co.  v.  Tax  Com- 
missioners, 174  N.  Y.  417,  435,  67 
N.  E.  69;  State  v.  Mayor,  etc.,  of 
New  York,  3  Duer  (N.  Y.),  119,  144, 
per  Bosworth,  J. 

Virginia:  Tuckahoe  Canal  Co.  v. 
Tuckahoe  Rd.  Co.,  11  Leigh  (Va.), 
42,  76,  36  Am.  Dec.  374  ("thus  it  is  a 
franchise  to  be  a  corporation,  with 
power  to  sue  and  be  sued  and  to  hold 
property  as  a  corporate  body,"  per 
Tucker,  P.). 

See  State  ex  rel.  Vilter  Mfg.  Co.  v. 
Milwaukee,  Burlington  &  Lake  Ge- 


•  Memphis  &  Little  Rock  Rd.  Co.  v.    28  L.  ed.  837,  5  Sup.  Ct.  299,  per 
Commissioners,  112  U.  S.  609,  619,    Matthews,  J.;  Fietsam  v.  Hay,  122 

26 


ENUMERATION   OF   FRANCHISES 


§    11 


said  that  the  franchise  to  be  a  corporation  belongs  to  the 
corporators  in  so  far  that  it  does  not  pass  by  mortgage  and 


neva  Rd.  Co.,  116  Wis.  142,  92  N.  W. 
146,  per  Winslow,  J. 

"Corporations  or  bodies  politic  are 
the  most  usual  franchise  known  to 
our  law."  Wilmington  &  Reading 
Ry.  Co.  v.  Downward  (Del.  Ct.  Err. 
&  App.,  1888),  14  Atl.  720,  721,  per 
Salisbury,  Ch. 

"The  creation  of  a  corporation,  the 
grant  of  power  to  exist  and  act  as 
such  is,  in  itself,  a  franchise."  San 
Joaquin  &  King's  River  Canal  Irrig. 
Co.  v.  Merced  County,  2  Cal.  App. 
593,  84  Pac.  285. 

Where  the  creation  of  a  corpora- 
tion was  sought  to  be  enjoined  and 
the  question  was  one  of  appeal  and 
whether  a  franchise  was  involved,  the 
court  declared  that  to  be  a  corpora- 
tion was  itself  a  franchise.     Drum- 


mond  Tobacco  Co.  v.  Randle,  114  111. 
412,  434,  2  N.  E.  536,  per  Schol- 
field,  J. 

Franchises  "are  very  generally 
granted  to  corporations.  Indeed,  the 
right  of  incorporation  is  said  to  be 
itself  a  franchise."  Sellers  v.  Union 
Lumbering  Co.,  39  Wis.  525,  527,  per 
Ryan,  C.  J.,  citing  2  Bl.  Comm.  37; 
Angell  &  Ames  on  Corp.  §  4. 

"It  is  true,  the  right  to  be  a  cor- 
poration is  itself  a  franchise,  but  all 
franchises  granted  to  a  corporation 
do  not  become  corporate  fran- 
chises." Green  v.  Knife  Falls  Boom 
Corp.,  35  Minn.  155,  157,  158,  per 
Vanderbergh,  J. 

"When  the  legislature  grants  a 
charter  of  incorporation,  it  confers 
upon  the  grantees  of  the  charter  the 


111.  293,  295,  3  Am.  St.  Rep.  492,  13 
N.  E.  501,  per  Mulkey;  J.  See  criti- 
cism of  this  case  by  Judge  Thompson 
in  next  following  note.  Driscoll  v. 
Norwich  &  Worcester  Rd.  Co.,  65 
Conn.  230,  256,  32  Atl.  354,  per  Tor- 
rence,  J.,  in  dissenting  opinion.  See 
Medical  &  Surgical  Soc.  of  Mont- 
gomery v.  Weatherly,  75  Ala.  248, 
253;  Coe  v.  Columbus,  Piqua  &  In- 
diana Rd.  Co.  10  Ohio  St.  372,  385, 
75  Am.  Dec.  518,  per  Gholson,  J. 

"A  corporation  is  itself  a  franchise 
belonging  to  the  members  of  the  cor- 
poration." Spring  Valley  Water 
Works  v.  Schottler,  62  Cal.  69,  106, 
per  Thornton,  J.;  Louisville  Tobacco 
Warehouse  Co.  v.  Commonwealth,  20 
Ky.  L.  Rep.  1047,  1051,  48  S.  W.  420. 
Both  cases  quoting  from  Pierce  v. 
Emery,  32  N.  H.  484,  507,  per 
Perley,  J. 

"Franchise  is  the  privilege  held  by 
the  individual  members  to  be  a  cor- 


poration and  exercise  corporate 
powers."  Cedar  Rapids  Water  Co.  v. 
Cedar  Rapids,  118  Iowa,  234,  239, 
91  N.  W.  1081,  per  Weaver,  J. 

"The  rule  is  that  the  primary  fran- 
chise of  being  a  corporation  vests  in 
the  individuals  who  compose  it,  and 
not  in  the  corporation  itself."  State 
v.  Water  Co.,  61  Kan.  547,  560,  60 
Pac.  337,  per  Smith,  J. 

"  'The  franchise  to  exist  as  a  cor- 
poration' *  *  *  is  a  franchise  of 
the  individual  corporators,  of  the 
natural  persons  who  are  shareholders 
of  the  capital  stock,  and  pertains  to 
them  as  such  corporators;  whereby 
they  are  endowed  with  the  privilege 
and  capacity  of  being  constituted 
into,  and  co-operating  together  as  a 
body  politic,  with  power  of  succes- 
sion, and  without  individual  liabil- 
ity." Meyer  v.  Johnson,  53  Ala.  237, 
32  I,  per  Manning,  J.,  case  decided  in 
1875. 

27 


§  11 


ENUMERATION   OF   FRANCHISES 


sale   thereunder.7     And   considered   in   connection   with  the 
right  to  assess  for  taxation,  the  assessment  should  not  be 


right  or  privilege  of  forming  a  corpo- 
rate association,  and  of  acting,  within 
certain  limits,  in  a  corporate  capacity, 
and  this  right  or  privilege  is  called 
the  'corporate  franchise.'  "  Jersey 
City  Gas-Light  Co.  v.  Gas  Improve- 
ment Co.,  46  Fed.  264,  265,  per 
Greene,  J.,  case  aff'd  58  Fed.  323. 

"A  corporation  is  defined  by  Mr. 
Justice  Blackstone  (2  Black.  Coram. 
37)  to  be  a  franchise.  It  is,  says  he, 
'  A  franchise  for  a  number  of  persons 
to  be  incorporated  and  exist  as  a 
body  politic,  with  a  power  to  main- 
tain perpetual  succession,  and  to  do 
corporate  acts.'  "  Dartmouth  Col- 
lege v.  Woodward,  4  Wheat.  (17 
U.  S.)  518,  657,  4  L.  ed.  629,  per 
Washington,  J.,  See  also  id.,  700 
per  Story,  J. 

A  corporation  franchise  to  be  and 
act  as  a  corporation  merely  gives  the 
corporation  life  as  a  person,  bear- 
ing the  same  relation  to  the  taxing 
powers  borne  by  the  natural  person. 
San  Joaquin  &  King's  River  Canal 
Irrig.  Co.  v.  Merced  County,  2  Cal. 
App.  593,  84  Pac.  285. 

"A  corporation  is  a  franchise 
possessed  by  one  or  more  individuals, 
who  subsist  as  a  body  politic,  under 


a  special  denomination,  and  are 
vested,  by  the  policy  of  the  law,  with 
the  capacity  of  perpetual  succession, 
and  of  acting  in  several  respects, 
however  numerous  the  association 
may  be,  as  a  single  individual.  The 
ordinary  incidents  to  a  corporation 
are  to  have  perpetual  succession,  and 
the  power  of  electing  or  otherwise 
providing  members  in  the  place  of 
those  removed  by  death  or  other- 
wise ;  to  sue  and  be  sued ;  to  grant  and 
receive  and  to  purchase  and  hold 
lands  and  chattels  by  their  corporate 
name;  to  have  a  common  seal;  to 
make  by-laws  for  the  government  of 
the  corporation;  and  sometimes  the 
power  of  a  motion  or  removal  of 
members.  *  *  *  The  right  to  be 
a  corporation  is  itself  a  separate,  dis- 
tinct and  independent  franchise." 
Southern  Pacific  Rd.  Co.  v.  Orton,  32 
Fed.  457,  473,  per  Sawyer,  J.,  citing 
2  Kent's  Comm.  (9  ed.),  306,  325; 
Memphis  &  Little  Rock  Rd.  Co.  v. 
Commissioners,  112  U.  S.  609,  5  Sup. 
Ct.  299.  Above  quotation  is  given  in 
part  in  Porter  v.  Rockford,  Rock  Is- 
land &  St.  Louis  Rd.  Co.,  76  111.  561, 
573,  per  Scholfield,  J. 

"What   is   called   'the  franchise  of 


7  See  New  Orleans  Debenture  Re- 
demption Co.  v.  Louisiana,  180  U.  S. 
320,  329,  45  L.  ed.  551,  21  Sup.  Ct, 
378,  per  Peckham,  J.  (a  case  of  ac- 
tion to  enjoin  use  of  charter;  neces- 
sary parties,  and  power  of  States 
over  corporations);  Julian  v.  Central 
Trust  Co.,  193  U.  S.  93,  106,  48  L.  ed. 
629,  24  Sup.  Ct.  399,  per  Day,  J.  (a 
case  of  state  laws  as  rules  of  decision ; 
railroads,  foreclosure  of  mortgages; 
purchase  by  foreign  corporation, 
validity  of;  indebtedness;  liability  of 

28 


purchaser;  and  conflicting  jurisdic- 
tion); New  Orleans,  Spanish  Fort  & 
Lake  Rd.  Co.  v.  Delamore,  114  U.  S. 
501,  510,  5  Sup.  Ct.  1009,  29  L.  ed. 
244  (a  case  of  federal  jurisdiction  over 
state  judgment  as  to  sale;  jurisdic- 
tion in  bankruptcy;  railroad  franchise 
of  right  of  way,  title  by  foreclosure; 
right  to  mortgage;  and  of  transfer  to 
assignee  in  bankruptcy  of  franchises 
mortgaged).  See  subsequent  sec- 
tions herein  as  to  this  power  to  trans- 
fer or  alienate. 


ENUMERATION   OF   FRANCHISES  §   11 

made  against  the  stockholders  or  members  as  such,  but  against 
the  corporation,  for  this  franchise  of  a  right  to  exist,  while  in 
a  certain  sense  belonging  to  the  members  of  the  corporation, 
must  be  availed  of  through  the  corporation  itself.8  Again,  it 
is  declared  that  corporate  rights  are  granted  to  the  corporation 
and  not  to  the  individuals  interested  therein,  as  is  instanced 
by  a  case  where  the  stockholders  may  separately  assign  and 
transfer  their  stock,  and,  independently  of  their  rights,  the 
corporation  itself  may  alienate  its  property  and  franchises, 
where  the  law  permits  such  transfer,  mortgage  or  conveyance.9 

forming  a  corporation,'  is  really  but  an  the  corporation  which  comprise  the 

exemption  from  the  general  rule  of  the  franchises  thereof, — its  special  powers 

common  law  prohibiting  the  forma-  and  rights,'  1  Wood,  Ry.  Law,  §  14, 

tion  of  corporations.     All  persons  in  p.  27;  now,  it  is  perfectly  apparent 

this   State    have   now   the   right   of  that  any  acts  done  to  further  the  ob- 

forming  corporate  associations  upon  jects  of  the  corporation  are  the  exer- 

complying  with  the  simple  formalities  cise   of    its    franchises."      Young   v. 

prescribed  by  the  statute.    The  right  Webster  City  &  So.  West.  Ry.  Co.,  75 

of  forming  a  corporation  and  of  acting  Iowa,   140,   143,  39  N.  W.  234,  per 

in   a   corporate   capacity   under  the  Rothrock,  J. 

general  incorporation  laws,  can  be  "  Strictly  '  the  franchise  to  exist  as 
called  a  franchise  only  in  the  sense  in  a  corporation '  is  not  a  corporate 
which  the  right  of  forming  a  limited  franchise  '  or  franchise  of  the  corpora- 
partnership,  or  of  executing  a  con-  tion'  at  all."  Meyer  v.  Johnson,  53 
veyance  of  land  by  deed,  is  a  Ala.  237,  324,  per  Manning,  J. 
franchise  (2  Morawitz,  Priv.  Corp.  "  The  right  to  be  a  corporation  has 
§  923)."  State  v.  Western  Irrigating  sometimes  been  called  a  franchise, 
Canal  Co.,  40  Kan.  96,  99,  19  Pac.  but  that  is  a  misapplication  of 
349,  per  Horton,  C.  J.  terms."     Knoup  v.   Piqua  Bank,   1 

"  '  The   corporation  itself  is   not  a  Ohio  St.  603,  613,  per  Corwin,  J. 
franchise,  but  it  is  the  attributes  of 

8  Bank  of  California  v.  San  Fran-  293,  3  Am.  St.  Rep.  492,  494,  says: 

cisco,  142  Cal.  276,  75  Pac.  832,  64  "But  this  is  an  imperfect  statement 

L.  R.  A.  918.  of    the    true    conclusion, — which    is, 

8  Detroit,  City  of,  v.  Mutual  Gas  that  a  primary  franchise,  that  is  to 

Co.    &    Mutual    Gas    Light   Co.,    43  say,  the  franchise  of  being  a  corpora- 

Mich.  594,  5  N.  W.  1039.  tion,    vests   in    the    individuals   who 

Judge    Thompson    after    quoting  compose  the  corporation;  while  those 

from   an   Illinois  case  to   the    point,  secondary    franchises    which,    as    we 

"  '  that  a  franchise  or  right  to  be  and  shall  hereafter  see,  are  iwidiblc  by  the 

act  as  an  artificial  body,  is  vested  in  corporation,  necessarily  and  for  that 

the  individuals  who  compose  the  cor-  reason  alone  must  vest  in  the  corpora- 

poration,  and  not  in  the  corporation  tion."      4    Thompson's    Comm.    on 

itself,'"    Fietsam    v.    Hay,    122  111.  Corp.  §  5336.     The  author' also  adds 

29 


§   11  ENUMERATION   OF   FRANCHISES 

It  is  also  held  that  a  corporation  is  an  entity,  irrespective  of 
the  persons  who  own  all  of  its  stock;  that  the  fact  that  one 
person  owns  all  the  stock  does  not  make  such  owner  and  the 
corporation  one  and  the  same  person;  and  that  there  is  not 
any  identity  between  the  individual  or  the  corporation  which 
owns  such  stock  in  another  corporation,  and  that  latter  cor- 
poration.10    And  whenever  a  corporation  makes  a  contract, 

the  following:   "We  shall,  however,  fers  to  entity  and  not  to  individual 

see  hereafter  that  judicial  theory  is  stockholder's    right    of    removal    to 

so  confused  on  the  subject,  that  pro-  Federal  court,  cannot  be  defeated  on 

ceedings  in  the  nature  of  quo  war-  ground  that  corporation  not  a  legal 

ranto,   to   vacate   the   franchises   of  entity). 

corporations,  are  sometimes  brought  Maryland:  Folsom  v.  DetrickFer- 

against    the    individuals    who    com-  tilizer  &  Chemical  Co.,  85  Md.  52,  69, 

pose  the  corporation  and  sometimes  36  Atl.  446  (corporation  is  person  dis- 

against  the  corporation  itself."  tinct  from  stockholders,  per  Bryan, 

10  Ulmer  v.  Lime  Rock  R.  Co.,  98  J.). 

Me.  579,  594,  57  Atl.  1001.  Nebraska:  Home  Fire  Insurance 

Whether   corporation  is   person   or  Co.  v.  Barber,  67  Neb.  644,  666,  93 

entity  distinct  from  stockholders,   see  N.  W.  1024  (stating  when  separate 

the  following  cases:  and  distinct  in  law  and  when  not  in 

United  States:  Central  Trust  Co.  equity,  per  Pound,  C). 

of  N.  Y.  v.  Western  North  Carolina  New  York;  Buffalo  Loan,  Trust  & 

Rd.  Co.,  89  Fed.  31,  per  Simonton,  Safe  Deposit  Co.  v.  Medina  Gas  & 

Cir.  J.  ("this  sovereign  power  made  Elec.  Light  Co.,  42  N.  Y.  Supp.  781, 

of  several  persons  a  single  entity");  788,  12  App.  Div.  199  (word  "entity" 

M'Cabe  v.  Illinois  Central   Rd.  Co.,  is  merely  descriptive;  but  cannot  act 

13  Fed.  827,  828  (is    a  legal  entity,  independently  of  persons  composing 

per  Love,  D.  J.).  it,  per  Green,  J.);  People  v.  North 

Alabama:    State    v.    Stebbins,    1  River  Sugar  Refining  Co.,  3  N.  Y. 

Stew.  (Ala.)  299,  306-308  [per  Saf-  Supp.  401,  408,  16  Civ.  Proc.  R.  1,  2 

fold,  J.,  citing  Bank  of  United  States  L.  R.  A.  33  (is  not  in  reality  distinct, 

v.  Dandridge,  12   Wheat.  (25  U.  S.)  although   in  one  point  of  view  an 

91,  per  Marshall,  C.  J.,  to  point  that  entity,  per  Barrett,  J.);  Supervisors 

it  is  one  entire  impersonal  entity].  of  Niagara  v.  People,  7  Hill  (N.  Y.), 

Illinois:    Ford    v.    Chicago    Milk  504,    507    (individuality   of   natural 

Shippers'    Assoc,    155    111.    166,    39  persons    is    merged    in    entity,  per 

N.  E.  651,  27  L.  R.  A.  298  (while  Bockee,  Senator), 

legal  entity  and  distinct  from  persons  Pennsylvania:    Rhawn    v.    Edge 

composing    it,    it    cannot    act    inde-  Hill  Furnace  Co.,  201  Pa.  637,  51  Atl. 

pendently   of   natural    persons    con-  360  (is  an  entity  irrespective  of  per- 

stituting  it,  per  Phillips,  J.).  sons     owning    stock);    Monongahela 

Kentucky:    Lewis  v.  Maysville  &  Bridge  Co.  v.  Pittsburg  &  Birming- 

Big  Sandy  Rd.  Co.,  25  Ky.  L.  Rep.  ham  Traction  Co.,  196  Pa.  25,  46  AtL 

948,  76  S.  W.  526  (when  statute  re-  99  (same  statement  as  last  case). 

30 


ENUMERATION   OF   FRANCHISES 


§    11 


it  is  the  contract  of  the  legal  entity,  of  the  artificial  being 
created  by  the  charter — and  not  the  contract  of  the  individual 


South  Carolina:  State  v.  Hood,  15 
Rich.  L.  (S.  C.)  177,  188  (corporation 
is  wholly  distinct  from  natural  per- 
sons composing  it,  per  Inglis,  J.). 

Tennessee:  City  of  Nashville  v. 
Ward,  16  Lea  (84  Tenn.),  27,  30  (is 
not  distinct,  per  Deaderick,  C.  J.). 

Corporation  is  an  entity  irrespective 
of,  and  entirely  distinct  from,  the  per- 
sons who  own  its  stock,  and  it  is  well 
settled  that  all  the  shares  in  a  cor- 
poration may  be  held  by  a  single  per- 
son and  yet  the  corporation  continue 
to  exist;  nor  does  the  fact  that  one 
person  owns  all  of  the  stock,  make 
him  and  the  corporation  one  and  the 
same  person.  The  corporation  does 
not  lose  its  legally  distinct  and  sepa- 
rate personality  by  reason  of  the 
ownership  of  the  bulk  or  whole  of  its 
stock  by  another;  nor  does  the  fact 
that  all  the  shares  of  a  corporation 
pass  into  the  ownership  of  one 
person,  operate  to  dissolve  the  cor- 
poration. It  is  also  immaterial 
whether  the  sole  owner  of  stock  is  a 
man  or  another  corporation,  and  the 
corporation  owning  such  stock  is  as 
distinct  from  the  corporation  whose 
stock  is  owned  as  the  man  is  from  the 
corporation  of  which  he  is  the  sole 
member.  Commonwealth  v.  Monon- 
gahela  Bridge  Co.,  216  Pa.  108,  114, 
115,  64  Atl.  909,  per  Potter,  J.,  citing 
or  quoting  Exchange  Bank  of  Macon 
v.  Macon  Construction  Co.,  97  Ga.  1, 
6,  25  S.  E.  326;  Kendall  v.  Klapper- 
thal  Co.,  202  Pa.  596,  607,  52  Atl.  92; 
Rhawn  v.  Edge  Hill  Furnace  Co., 
201  Pa.  637,  644,  51  Atl.  360;  Mo- 
Dongahela  Bridge  Co.  v.  Pittsburg  \- 
Birmingham  Traction  Co.,  196  Pa. 
25,  46  Atl.  99;  10  Cyc.  1277. 

"Franchises  are  usually  conferred 


upon  corporations  for  the  purpose  of 
enabling  them  to  do  certain  things. 
The  franchises  are  vested  in  the  cor- 
porate entity  rather  than  in  the  offi- 
cers."    Londoner  v.  People,  15  Colo. 
246,  247,  25  Pac.   183,  per  Hayt,  J. 
"  The  doctrine  of  corporate  entity  is 
not  so  sacred  that  a  court  of  equity, 
looking  through  forms  to  the  substance 
of  things,  may  not,  in  a  proper  case, 
ignore  it  to  preserve  the  rights  of  in- 
nocent    parties    or    to     circumvent 
fraud."    Rieger,  Kapner  &  Altmark, 
In  re,  157  Fed.  609,  19  Am.  B.  Rep. 
622,  628.    The  court,  per  Sater,  Dist. 
J.  (p.  629),  cites  First  National  Bank 
of  Chicago  v.  Trebein  Co.,  59  Ohio  St. 
316,  52  N.  E.  834,  and  the  following 
is  a  part  of  the  quotation  in  the  said 
case,  given  by  the  court:  "In  con- 
templation of  law,  a  corporation  is  a 
legal  entity,  an  ideal  person,  separate 
from  the  real  persons  who  compose 
it.     This  fiction,  however,  is  limited 
to  the  uses  and  purposes  for  which  it 
was    adopted — convenience    in    the 
transaction  of  business,  and  in  suing 
and  being  sued  in  its  corporate  name, 
and  the  continuance  of  its  rights  and 
liabilities,  unaffected  by  changes  in 
its  corporate  members.    But  the  fic- 
tion cannot  be  abused.     A  corpora- 
tion cannot  be  formed  for  the  purpose 
of   accomplishing   a   fraud   or  other 
illegal  act  under  the  disguise  of  the 
fiction."     The  court  in  the  principal 
case  cites  also  the  following  authori- 
ties:   Cincinnati,    Volksblatt    Co.    v. 
Hoffmeister,   62  Ohio  St.   189,  200, 
50  N.  E.  1033,  48  L.  R.  A.  732,  78 
Am.  St.  Rep.  707;  State  v.  Standard 
Oil  Co.,  49  Ohio  St.  137,  177-179,  30 
N.  E.  279,  15  L.  R.  A.  145,  34  Am. 
St.  Rep.  541;  Brundred  v.  Rice,  49 

31 


§    11  ENUMERATION   OF   FRANCHISES 

members;  the  only  rights  it  can  claim  are  given  to  it  in  that 
character,  and  not  the  rights  which  belong  to  its  members 
as  citizens  of  a  State.11  Even  though  the  word  "franchise"  is 
sometimes  used  as  synonymous  with  privileges  and  immunities 
of  a  personal  character,  it  is  nevertheless  something  which 
cannot  be  enjoyed  by  a  citizen  without  a  legislative  grant; 
so  that  a  membership  in  a  religious,  benevolent,  literary  and 
scientific  corporation  or  association,  incorporated  under  gen- 
eral or  special  laws,  is  not  a  franchise,  and  a  member  of  a  cor- 
poration or  association  without  legislative  grant,  organized 
to  transact  commercial  business,  has  not  a  franchise  but  a 
mere  privilege.  Therefore,  the  right  of  membership  in  a  private 
corporation,  such  as  a  Board  of  Trade,  is  not  a  franchise.12 
So,  in  New  York,  a  distinction  is  made  between  membership 
in  a  municipal,  eleemosynary,  or  private  corporation,  where 
the  member  is  declared  to  be  in  the  enjoyment  of  a  franchise, 
the  right  to  which  is  not  derived  from  the  body,  but  is  created 
by  statute  or  exists  by  prescription,  and  membership  in  an 
unincorporated  voluntary  association,  such  as  an  association 
or  exchange  called  an  "Open  Board  of  Brokers,"  where  the 
privilege  of  membership  is  not  given  by  statute  or  derived 
through  prescription,  as  in  a  corporation,  but  is  created  and 
conferred  by  the  organization  itself  and  may  be  conferred  or 
withheld  at  pleasure  and  therefore  is  not  a  franchise  arising 
from  a  grant  from  a  sovereign  or  government.13     Again,  it 

Ohio  St.  640,  32  N.  E.  169,  34  Am.  right  of  a  member  of  a  board  of  trade 
St.  Rep.  589;  Thompson  on  Corp.  to  be  restored  to  membership  and 
§  1077;  Cook  on  Corp.  (4th  ed.),  23;  whether  such  membership  was  a 
7  Ency.  Am.  &  Eng.  Law,  633,  634.  franchise  within  the  meaning  of  a 
See  also  United  States  v.  Milwaukee  law  giving  the  right  to  prosecute  ap- 
Refrigerator  Co.,  142  Fed.  247  (hold-  peals  and  writs  of  error  to  the  Su- 
ing corporation  a  legal  entity  as  a  preme  Court).  See  Chicago  &  West- 
general  rule,  but  will  be  regarded  in  ern  Indiana  Ry.  Co.  v.  Dunbar,  95 
law  as  an  association  of  persons  under  111.  571,  575,  per  Dickey,  J. 
certain  circumstances.  Disfranchisement  of  member  of  cor- 

11  Bank  of  Augusta  v.   Earle,    13  poration,  what  is.     See  Richards  v. 
Pet.  (38  U.  S.)  519,  10  L.  ed.  274.  Clarksburg,  30  W.  Va.  491,  4  S.  E. 

12  Board  of  Trade  of  Chicago   v.  774;  White  v.  Brownell,  4  Abb.  Pr. 
People  ex  rel.  Sturgis,  91  111.  80,  83  (N.  S.)  (N.  Y.)  162,  192. 

(the  question  here  was  one  of  the        13  White  v.  Brownell,  4  Abb.  Pr. 

32 


ENUMERATION   OF   FRANCHISES  §    11 

is  declared  that  the  right  to  be  a  corporation  by  a  particular 
name  is  a  franchise,  but  that  this  is  an  entirely  distinct  and 
different  right  from  the  right  to  use  a  franchise  in  transacting 
business  which  can  only  exist  by  specific  grant  or  prescrip- 
tion.14 And  it  is  further  decided  that  where,  under  the  law, 
a  corporation  may  acquire  a  right  to  the  exclusive  use  of 
another  than  its  corporate  name  as  a  trade  name,  but  not  as 
a  corporate  name,  and  the  object  of  the  statute  is  not  to  pre- 
vent the  fraudulent  use  of  trade  names  but  to  prevent  the 
identity  of  corporate  names,  the  commissioner  of  corporations 
may  properly  approve  a  name  as  that  of  a  corporation,  not- 
withstanding that  name  is  then  in  use  as  a  trade  name  by  a 
corporation  with  a  different  corporate  name ;  and  the  corporate 
name  inserted  in  the  certificate  of  incorporation  from  the 
Secretary  of  State  under  authority  of  the  statute  is  conclusive 
of  the  right  to  the  corporate  name  and  gives  a  franchise  to 
bear  the  name  which  can  no  more  be  impeached  by  private 
persons  than  can  the  franchise  to  be  a  corporation,  and  in 
bearing  such  a  name  a  franchise  conferred  by  law  is  exercised 
precluding  any  right  of  the  older  corporation  to  have  a  petition 
granted  for  leave  to  file  an  information  in  the  nature  of  a 
quo  warranto  to  restrain  the  exercise  of  a  franchise  and  the 
use  of  the  corporate  name.15  As  to  municipal  corporations, 
special  franchises  may  be  conferred  upon  a  city  in  respect  to 
its  waterworks,  sewers  and  public  parks,  to  enable  it  to  ac- 
complish the  purpose  for  which  it  was  created.  So  the  right 
of  a  city  to  take  possession  of,  and  improve  as  a  public  park, 
lands  lying  outside  its  limits,  is  derived  only  from  a  sovereign 

N.  S.   (N.  Y.  Ct.  Com.  Pleas)   162,  See  Union  Water  Co.  v.   Kean,  52 

191-193,  2  Daly  (N.  Y.),  329,  358,  N.  J.  Eq.  Ill,  129-132,  27  All.  1015, 

per  Daly,  F.  J.  citing  numerous  cases. 

14  Hazelton  Boiler  Co.  v.  Tripod  15  Boston  Rubber  Shoe  Co.  v.  Bos- 
Boiler  Co.,  137  111.  231,  233,  28  N.  E.  ton  Rubber  Co.,  149  Mass.  436,  21 
248,  per  Schofield,  C.  J.  N.  E.  875,  cited  in  American  Order 

That  equitable  relief  may  be  had  Scottish  Clans  v.  Merrill,  151  Mass. 

to  prevent  use  of  corporate  name,  558,  561,  8  L.  R.  A.  320,  24  N.  E.  918. 

given  by  special  charter,  and  exer-  Compare     Hazlcton     Boiler    Co.     v. 

cise  of  a  franchise  and  that  complain-  Hazlcton  Tripod  Boiler  Co.,  137  111. 

ant  not  restricted  to  quo  warranto.  231,  28  N.  E.  248. 

3  33 


§    11  ENUMERATION   OF   FRANCHISES 

grant,  and  so  far  as  concerns  the  city  is  a  "  public  franchise."  1<J 
And,  by  way  of  further  illustration,  the  franchise  right  to 
erect  and  maintain  electric  light  and  power  plants  may  be 
conferred  upon  cities  of  a  certain  class.17  And,  generally, 
municipalities  may,  within  constitutional  limitations,  be  em- 
powered, or  granted  the  franchise,  to  own  and  operate  electric 
lighting  plants  not  only  for  use  of  the  city  but  also  for  private 
use.18  Again,  where  a  city  acts  in  the  capacity  of  a  private 
corporation,  in  exercising  its  powers  or  franchise,  it  is  placed 
by  the  law  upon  the  same  plane,  in  the  matter  of  its  liability 
for  damages,  as  would  any  person  or  collection  of  persons 
which  is  the  grantee  of  a  like  special  franchise.19 

16  Mayor  of  Detroit  v.  Park  Com-   Newton,   42  Fed.  723,  3  Am.  Elec. 
missioners,  44  Mich.  602,  7  N.  W.  180.    Cas.  507. 

An  information  in  nature  of  quo  Florida:  Jacksonville  Elec.  Light 
warranto  to  inquire  by  what  author-  Co.  v.  Jacksonville,  36  Fla.  229,  18 
ity  the  city  usurped  certain  fran-  So.  677,  30  L.  R.  A.  540,  12  Am.  R.  & 
chises.  See  People  v.  Spring  Valley,  Corp.  Rep.  626,  51  Am.  St.  Rep.  24,  6 
129  111.  169,  21  N.  E.  843,  where  the  Am.  Elec.  Cas.  668. 
information  charged  a  city  with  Indiana:  Crawfordsville  v.  Braden, 
exercising  a  franchise  not  authorized  130  Ind.  149,  28  N.  E.  849. 
by  its  charter,  and  it  was  held  proper  Michigan:  Mitchell  v.  Negaumee, 
to  make  the  city  a  defendant  by  its  113  Mich.  359,  4  Det.  L.  N.  318,  38 
corporate  name,  but  the  question  of  L.  R.  A.  157,  71  N.  W.  646. 
franchise  as  such  was  not  discussed,  New  York:  Potsdam  Elec.  Light  & 
being  evidently  conceded  to  exist.  Power  Co.  v.  Village  of  Potsdam,  97 
"A  municipal  corporation,  for  in-  N.  Y.  Supp.  199,  49  Misc.  18.  See 
stance,  may  have  the  franchise  of  a  Tuttle  v.  Brush  Elec.  Ilium.  Co.,  50 
market,  or  of  a  local  court."  Pierce  N.  Y.  Super.  Ct.  464,  1  Am.  Elec. 
v.  Emery,  32  N.  H.  484,  507,  per  Cas.  508,  514,  515. 
Perley,  C.  J.  Pennsylvania:  Linn  v.  Chambers- 
Municipality  may  be  authorized  to  burgh  Borough,  160  Pa.  511,  4  Am. 
erect  and  maintain  a  system  of  Elec.  Cas.  647,  28  Atl.  842.  See  also 
waterworks.  See  Keen  v.  Waycross,  Black  v.  Chester,  175  Pa.  101,  34  Atl. 
101  Ga.  588,  29  S.  E.  42.  354. 

City  may  be  authorized  to   con-  Tennessee:  Smith  v.  Nashville,  88 

struct  sewers.    See  Kennedy  v.  Boll-  Tenn.  (4  Pick.)  464,  12  S.  W.  924. 

mar,  61  N.  J.  L.  20,  38  Atl.  756.  See  Opinion  of  Justices,  150  Mass. 

17  State   v.    City   of   Hiawatha   &  593,  24  N.  E.  1084. 

General  Elec.  Co.,  53  Kan.  477;  State  19  Chicago,  City  of,  v.  Selz.  Schwab 

v.  Taylor,  36  Wash.  607,  79  Pac.  286.  &  Co.,  104  111.  App.  376,  aff'd  202  111. 

"United       States:      Thompson-  545,  67  N.  E.  386;  Dickinson  v.  City 

Houston  Elec.  Light  Co.  v.  City  of  of  Boston,  188  Mass.  595,  1  L.  R.  A. 

34 


ENUMERATION    OF    FRANCHISES 


§   12 


§  12.  Corporations  Continued — What  Franchises  are  Em- 
braced Generally. — A  corporation  is  not  only  itself  a  franchise, 
but  it  consists  and  is  made  up  of  its  rights  and  franchises  and 
it  may  hold  other  franchises  as  rights  and  franchises  of  the 
corporation.20     So  it  is  said,  by  the  court,  in  a  Connecticut 

(N.  S.)  664,  75  N.  E.  68;  Bullmaster 
v.  St.  Joseph,  70  Mo.  App.  60. 

"United  States:  See  Memphis  & 
Little  Rock  Rd.  Co.  v.  Commis- 
sioners, 112  U.  S.  609,  610,  619,  28 
L.  ed.  837,  5  Sup.  Ct,  299;  Buchanan 
v.  Knoxville  &  Ohio  Rd.  Co.,  71  Fed. 
324,  334,  18  C.  C.  A.  122,  per  Sever- 
ens,  Dist.  J. 

California:  Spring  Water  Works 
v.  Schottler,  62  Cal.  69,  106,  per 
Thornton,  J.,  quoting  from  Pierce  v. 
Emery,  32  N.  H.  484,  507,  per 
Perley,  J. 

Connecticut:  Driscoll  v.  Norwich 
&  Worcester  Rd.  Co.,  65  Conn.  230, 
256,  32  Atl.  354,  per  Torrance,  J.,  in 
dissenting  opinion. 

Florida:  Sullivan  v.  Lear,  23  Fla. 
463,  2  So.  846,  11  Am.  St.  Rep.  388. 
See  quotation  from  this  case  in  note 
to  §  39,  herein,  as  to  distinction  be- 
tween franchise  to  be  and  to  do. 

Illinois:  Chicago  &  Western  Indi- 
ana Rd.  Co.  v.  Dunbar,  95  111.  571, 
576. 

Iowa:  Cedar  Rapids  Water  Co.  v. 
Cedar  Rapids,  118  Iowa,  234,  239,  91 
N.  W.  1081,  per  Weaver,  J. 

Kentucky:  Louisville  Tobacco 
Warehouse  Co.  v.  Commonwealth,  20 
Ky.  L.  Rep.  1047,  1051,  48  S.  W.  420, 
quoting  from  Pierce  v.  Emery,  32 
N.  H.  484,  507,  per  Perley,  J. 

New  Jersey:  Slate  Board  of  As- 
sessors v.  Central  Rd.  Co.,  48  N.  J.  L. 
146,  271,  per  Scudder,  J. 

New  York:  People  ex  rel.  Metro- 
politan Street  Ry.  Co.  v.  Tax  Com- 
missioners, 174  N.  Y.  417,  67  N.  E. 
69;   State   v.    Mayor,     etc.,   of   New 


York,  3  Duer  (N.  Y.),  119,  144,  per 
Bosworth,  J. 

Vermont:  State  v.  Boston,  Con- 
cord &  Montreal  Rd.  Co.,  25  Vt.  433, 
442,  per  Redfield,  Ch.  J. 

Examine  the  following  cases: 

United  States:  Mercantile  Bank 
v.  Tennessee,  161  U.  S.  171,  40  L.  ed. 
656,  16  Sup.  Ct.  466,  per  Peck- 
ham,  J.;  Home  Ins.  Co.  v.  New 
York,  134  U.  S.  594,  599,  33  L.  ed. 
1025,  10  Sup.  Ct.  593,  per  Field,  J. 
[case  affirms  People  v.  Home  Ins. 
Co.,  92  N.  Y.  328,  also  aff'd  by 
divided  court,  119  U.  S.  129,  30 
L.  ed.  350,  8  Sup.  Ct.  1385,  restored 
to  calendar  122  U.  S.  636  (Mem.). 
The  principal  case  is  cited  in  People 
v.  Miller,  83  N.  Y.  Supp.  184,  187, 
85  App.  Div.  211,  which  case  is  re- 
versed 177  N.  Y.  51,  69  N.  E.  124, 
which  is  cited  in  People  v.  Miller,  86 
N.  Y.  Supp.  420,  422,  90  App.  Div. 
588,  this  last  case  is  reversed  179 
N.  Y.  49,  71  N.  E.  463.  The  principal 
case  is  also  quoted  from  in  Cobb  v. 
Commissioners  of  Durham  County, 
122  N.  Car.  307,  309,  30  S.  E.  338, 
per  Montgomery,  J.];  Davis  v.  Gray, 
16  Wall.  (83  U.  S.)  203,  228,  21 
L.  ed.  447,  per  Swayne,  J.;  Thompson 
v.  Schenectady  Ry.  Co.,  124  Fed. 
274,  279,  per  Ray,  Dist.  J.,  see  same 
case  131  Fed.  577;  Central  Trust 
Co.  of  New  York  v.  Western  North 
Carolina  Rd.  Co.,  SO  Fed.  24,  31,  per 
Simonton,  Cir.  J.;  Southern  Pacific 
Rd.  Co.  v.  Orton,  32  Fed.  457,  474, 
per  Sawyer,  J. 

California:  San  Joaquin  &  King's 
River    Canal    Irrig.    Co.    v.    Merced 

35 


§  12 


ENUMERATION   OF   FRANCHISES 


case,  that:  "The  term  'franchise'  has  several  significations 
and  there  is  some  confusion  in  its  use.  The  better  opinion, 
deduced  from  the  authorities,  seems  to  be  that  it  consists  of 
the  entire  privileges  embraced  in  and  constituting  the  grant. 
It  does  not  then  embrace  the  property  acquired  by  the  exer- 
cise of  the  franchise."  21    In  case  of  a  mortgage  which  "pur- 


County,  2  Cal.  App.  593,  84  Pac. 
285. 

Kentucky:  Board  of  Councilmen 
of  City  of  Frankfort  v.  Stone,  108 
Ky.  400,  22  Ky.  L.  Rep.  25,  56  S.  W. 
679. 

Maryland:  Consolidated  Gas  Co. 
v.  Baltimore  City,  101  Md.  541,  545- 
548,  61  Atl.  532,  per  McSherry,  C.  J. 

Minnesota:  State  v.  Minnesota 
Thresher  Mfg.  Co.,  40  Minn.  213,  225, 
226,  41  N.  W.  1020,  3  L.  R.  A.  510, 
per  Mitchell,  J. 

New  York:  Sandham  v.  Nye,  30 
N.  Y.  Supp.  552,  555,  62  N.  Y.  St. 
Rep.  198,  9  Misc.  541,  per  Rum- 
sey,  J. 

Wisconsin:  Linden  Land  Co.  v. 
Milwaukee  Elect.  Ry.  &  Light  Co., 
107  Wis.  493,  513,  514,  83  N.  W. 
858. 

21  City  of  Bridgeport  v.  New  York 
&  New  Haven  Rd.  Co.,  36  Conn. 
255,  266,  4  Am.  Rep.  63,  per  But- 
ler, J.  (case  of  assessment  for  bene- 
fits), quoted  in  part  in  Spring  Valley 
Water  Works  v.  Schottler,  62  Cal. 
69,  106,  also  quoted  in  Louisville 
Warehouse  Co.  v.  Commonwealth,  20 
Ky.  L.  Rep.  1047,  1051,  48  S.  W. 
420.  See  Gordon  v.  Appeal  Tax 
Court,  3  How.  (44  U.  S.)  133,  150,  11 
L.  ed.  529,  per  Wayne,  J. 

"  It  is  quite  too  narrow  a  definition 
of  the  word  '  franchise '  *  *  *  to 
hold  it  as  meaning  only  the  right  to 
be  a  corporation.  The  word  is  ge- 
neric covering  all  the  rights  granted 
by  the  legislature."    Atlantic  &  Gulf 

36 


Rd.  Co.  v.  Georgia,  98  U.  S.  359,  365, 
25  L.  ed.  185,  quoted  in  State  Tide- 
Water  Pipe  Line  Co.  v.'  Berry,  52  N. 
J.  L.  308,  311,  19  Atl.  665,  per  Van 
Syckel,  J.;  quoted  in  part  in  Wil- 
mington City  Ry.  Co.  v.  Wilmington 
&  Brandywine  Springs  Ry.  Co.  (Del. 
Ch.,  1900),  46  Atl.  12. 

The  term  "franchise"  is  "also  to 
be  regarded  as  a  generic  term  cover- 
ing all  rights  granted  to  a  corpora- 
tion by  legislative  act  or  statute." 
Cedar  Rapids  Water  Co.  v.  Cedar 
Rapids,  118  Iowa,  234,  238,  91 
N.  W.  1081,  per  Weaver,  J.,  dis- 
tinguishing also  between  the  fran- 
chise to  be  a  corporation  and  the 
privileges  granted  when  organized. 

Covers  all  rights  granted  to  a  cor- 
poration. Whence  "  corporate  fran- 
chises." Atlantic  &  Gulf  R.  Co.  v. 
Georgia,  98  U.  S.  365,  25  L.  ed.  185, 
per  Strong,  J.  ' 

"As  applied  to  corporations"  the 
word  "franchise"  "constitutes  its 
right  to  do  business,  and,  also,  in 
so  doing,  to  exercise  certain  special 
powers  and  privileges  which  do  not 
belong  to  citizens  of  the  country  gen- 
erally of  common  right,  and  is  vested 
in  the  corporate  entity."  Arapahoe 
County  v.  Rocky  Mountain  News 
Printing  Co.,  15  Colo.  App.  189,^2j03, 
61  Pac.  494,  per  Wilson,  J. 

"  The  franchise  of  the  company  is 
the  right  to  hold  property  and  exercise 
its  corporate  privileges.  *  *  * 
All  the  rights  and  privileges  which 
the  company  is  empowered  to  exer- 


ENUMERATION    OF    FRANCHISES  §    12 

ports  to  convey  only  the  'road  and  its  franchises,'  "  these 
terms  "embrace  only  such  rights  and  privileges  as  are  in- 
volved in  the  owning,  maintaining  and  operating  of  the  rail- 
road, and  in  the  receipt  and  enjoyment  of  the  income  and 
emoluments  of  so  doing.  The  franchise  conveyed  is,  by  the 
language,  restricted  to  the  franchise  that  the  corporation  had 
in  the  road  itself;  and  therefore  cannot  be  regarded  as  touch- 
ing other  franchises,  such  as  that  of  being  a  corporation,  with 
the  right  of  perpetual  succession,  of  suing  and  being  sued  by 
corporate  names,  etc."  22  Again,  those  franchises  are  es- 
pecially to  be  considered  which  are  essential  to  corporate 
operation,  and  the  exercise  of  corporate  rights  and  necessary 
to  make  the  grant  of  value.23  And  such  privileges  as  are  rea- 
sonably necessary  to  the  discharge  of  the  duty  of  a  street-car 
company  to  the  public  in  transporting  persons  from  place 
to  place  on  the  street,  in  the  way  in  which  such  business  is 
ordinarily  conducted,  are  incident  to  the  franchise  to  main- 
tain and  operate  the  road,  in  the  absence  of  municipal  regula- 
tions  or  something  in  the   franchise,   or  some  state    police 

cise  were  granted  to  it  by  its  charter  922);  Morgan  v.  Louisiana,  93  U.  S, 
upon  the  terms  specified  therein."  217,  23  L.  ed.  860;  Chicago  &  West- 
Hancock,  Comptroller,  v.  Singer  Mfg.  ern  Indiana  Ry.  Co.  v.  Dunbar,  95 
Co.,  62  N.  J.  L.  289,  336,  42  L.  R.  A.  111.  571,  576;  Shamokin  Valley  Rd. 
852,  41  Atl.  846,  per  Van  Syckel,  J.  Co.  v.  Livermore,  47   Pa.    465,  468, 

"  The  franchise  to  be  is  only  one  of  per  Agnew,  J.,  and  examine   gener- 

the    franchises    of    a    corporation."  ally  cases  throughout  this  work. 

Adams   Express  Co.    v.    Ohio   State  "  Miller  v.  Rutland  &  Washington 

Auditor,  166  U.  S.  185,  224,  41  L.  ed.  Rd.  Co.,  36  Vt.  452,  493,  per  Bar- 

965,  17  Sup.  Ct.  604,  per  Brewer,  J.  rett,  J. 

(a   case   of   taxation  and  interstate  "  See  the  following  cases: 

commerce)    denying    rehearing,   165  United     States:    Chesapeake    & 

U.  S.   194,   41    L.  ed.  683,  707,   17  Ohio  Ry.  Co.  v.  Miller,  114  U.  S.  176, 

Sup.  Ct.  305.     See  further  chap.  IV,  186,  29  L.  ed.   121,   5  Sup.  Ct.  813; 

herein,  as  to  distinctions.  East  Tennessee,  Virginia  &  Georgia 

What  franchises  a  ra  if  mini  company  Rd.  Co.  v.  Hamblen,  102  U.  S.  275, 

embraces.     See   Chesapeake   &   Ohio  277,  26   L.  ed.  121,  152;   Morgan  v. 

Ry.   Co.   v.    Miller,    114    U.    S.  176,  State  of   Louisiana,  93  U.  S.  217,  23 

186,  29  L.  ed.  121,  5  Sup.  Ct.  813  L.  ed.  860. 

(quoted  in  Baltimore,  Chesapeake  &  Illinois:  Chicago  &  Western  Indi- 

Atlantic  By.  Co.  v.   Mayor,  etc.,  of  ana  Rd.  Co.  v.  Dunbar,  95  111.  571, 

Ocean   City,  89   Md.  89,  98,  42  Atl.  576. 

37 


§  12 


ENUMERATION   OF   FRANCHISES 


regulation  to  the  contrary.24  So  it  is  declared  that  a  fran- 
chise of  itself  is  of  no  value  when  considered  as  the  bare  right 
to  do  a  thing  exclusive  of  its  public  utility;  that  its  value  de- 
pends upon  the  profit  to  be  made  out  of  it,  having  in  view  its 
practical  uses  in  connection  with  the  nature  of  the  franchise 
and  the  skill,  business  judgment  and  management  necessary  to 
make  it  profitable.25  But  the  privilege,  right  or  power  to 
exercise  and  acquire  or  own  varied  and  distinct  franchises 
may  never  be  exercised  by  the  corporation,  and  such  fran- 
chises may  never  be  acquired  or  owned,  as  in  the  case  of  the 
power  to  acquire  realty.26  This  right  to  acquire  and  sell  real 
estate,  including  particular  real  estate  designated  in  the  char- 


Maine:  State  v.  Maine  Central  Rd. 
Co.,  66  Me.  488,  512,  per  Appleton, 
C.J. 

Maryland:  Baltimore,  Chesapeake 
&  Atlantic  Ry.  Co.  v.  Mayor,  etc.,  of 
Ocean  City,  89  Md.  89,  98,  42  Atl. 
922. 

Nebraska:  Western  Union  Teleg. 
Co.  v.  City  of  Omaha  (Neb.,  1905), 
103  N.  W.  84,  86. 

New  Jersey:  State  Board  of  As- 
sessors v.  Central  Rd.  Co.,  48  N.  J.  L. 
146,  271,  per  Scudder,  J. 

Pennsylvania:  Shamokin  Valley 
Rd.  Co.  v.  Livermore,  47  Pa.  465, 
468,  per  Agnew,  J. 

Tennessee:  Wilson  v.  Gaines,  9 
Baxt.  (68Tenn.)546,552. 

Texas:  Denison  &  Sherman  Ry. 
Co.  v.  St.  Louis  Southwestern  Ry. 
Co.,  30  Tex.  Civ.  App.  474,  481, 
482,  72  S.  W.  201,  per  Bookhout, 
Assoc.  J. 

"The  right  or  privilege  to  be  a  cor- 
poration, or  to  do  business  as  such 
body,  is  one  generally  deemed  of 
value  to  the  corporators,  or  it  would 
not  be  sought  in  such  numbers  as  at 
present.  It  is  a  right  or  privilege  by 
which  several  individuals  may  unite 
themselves  under  a  common  name 

38 


and  act  as  a  single  person,  with  a 
succession  of  members,  without  dis- 
solution or  suspension  of  business  and 
with  a  limited  individual  liability. 
The  granting  of  such  right  or  privi- 
lege rests  entirely  in  the  discretion  of 
the  State,  and,  of  course,  when 
granted,"  the  legislature  may  impose 
conditions  affecting  the  grant  of  the 
franchise.  Home  Insurance  Co.  v. 
New  York,  134  U.  S.  594,  599,  33 
L.  ed.  1025,  10  Sup.  Ct.  593,  per 
Field,  J.  Case  'affirms  People  v. 
Home  Ins.  Co.,  92  N.  Y.  328,  which 
is  also  aff'd  119  U.  S.  129,  30 
L.  ed.  350,  8  Sup.  Ct.  1385,  re- 
stored to  calendar,  122  U.  S.  636 
(Mem.). 

24Tesch  v.  Milwaukee  Elect.  Ry. 
&  Light  Co.,  108  Wis.  593,  608,  84 
N.  W.  823,  per  Marshall,  J. 

25  Sullivan  v.  Lear,  23  Fla.  463,  11 
Am.  St.  Rep.  388,  2  So.  846.  See 
Medical  &  Surgical  Soc.  of  Mont- 
gomery v.  Weatherly,  75  Ala.  248, 
253. 

28  San  Joaquin  &  King's  River 
Canal  Irrig.  Co.  v.  Merced,  2  Cal. 
App.  593,  84  Pac.  285.  See  chap.  IV, 
herein,  as  to  distinctions. 


ENUMERATION    OF    FRANCHISES 


§  13 


ter,  is  declared  to  be  a  franchise; 27  as  is  also  the  right  to  con- 
solidate.28 


§  13.  Corporations  Continued — Foreign  Corporations  Gen- 
erally.— As  to  foreign  corporations  "the  franchise  of  a  cor- 


27  Davis  v.  Gray,  16  Wall.  (83 
U.  S.)  203,  228,  21  L.  ed.  447,  per 
Swayne,  J.  See  chap.  IV,  herein,  as 
to  distinctions. 

The  rule  that  the  limitation  of  the 
power  of  a  corporation  in  a  State  to 
receive  and  hold  real  estate  concerns 
the  State  alone,  does  not  apply  when 
the  corporation,  as  plaintiff,  seeks  to 
acquire  real  estate  which  it  is  not 
authorized  by  law  to  acquire.  Case 
v.  Kelly,  133  U.  S.  21,  33  L.  ed.  513, 
10  Sup.  Ct.  216. 

Includes  right  to  acquire  land. 
Baltimore  &  Fredericktown  Turnpike 
Road  v.  Baltimore,  Catonsville  & 
E.  M.  P.  Rd.  Co.,  81  Md.  247,  255, 
31  Atl.  854,  per  Bryan,  J. 

As  to  power  to  take  and  hold  lands 
while  empowered  to  receive  grants  of 
land;  limitations  as  to  purchase  of 
real  estate,  see  Southern  Pacific  Rd. 
Co.  v.  Orton,  32  Fed.  457,  470,  473. 

"  This  franchise,  this  corporate 
right,  to  select  and  acquire  land,  is 
property;  it  is  an  incorporeal  here- 
ditament, not  a  legal  title  to  the  land 
itself,  not  a  mere  capacity  or  faculty 
to  acquire  and  hold  land,  such  as 
every  individual  possesses;  but  in 
addition  to  such  capacity,  it  is  a  right 
or  privilege,  a  portion  of  the  eminent 
domain  vested  in  the  corporation,  to 
acquire  the  legal  title  to  land  sub- 
jected by  the  grant  to  its  will,  and 
thus  to  convert  the  incorporeal  into  a 
corporeal  hereditament,  and  after  the 
franchise    to    choose    and    condemn 


land  for  any  particular  public  pur- 
pose; that  portion  of  the  eminent 
domain  granted  and  subsisting  in  one 
corporation,  cannot  be  bestowed 
upon  another,  to  the  prejudice  of  the 
former  grant;  nor  can  any  other 
legally  acquire  any  such  right  of  way 
or  title  to  the  land  over  which  the 
franchise  extends,  as  will  hinder  the 
former  corporation  in  the  exercise 
and  enjoyment  of  its  franchise." 
Canal  Company  v.  Railroad  Com- 
pany, 4  Gill.  &  J.  (Md.)  1,  144,  145, 
per  Buchanan,  Ch.  J.,  quoted  in 
Baltimore  &  Fredericktown  Turn- 
pike Road  v.  Baltimore,  Catonsville 
&  Ellicott  Mills  Pass.  Rd.  Co.,  81 
Md.  247,  255,  31  Atl.  854,  per 
Bryan,  J.  See  also  §  19,  herein,  as  to 
Eminent  Domain. 

The  right  of  a  city  to  take  posses- 
sion and  improve  lands  lying  outside 
the  city  limits  as  a  public  park  is  a 
franchise  which  the  right  to  purchase, 
to  create  a  debt  therefor,  and  to  ex- 
tend over  it  the  police  power  is  ex- 
pressly granted  by  a  special  act  of  the 
legislature.  Mayor  v.  Park  Commis- 
sioners, 44  Mich.  602,  605,  7  N.  W. 
180. 

A  corporation  created  for  the  pur- 
pose of  dealing  in  lands,  and  to  which 
the  powers  to  purchase,  to  subdivide, 
to  sell,  and  to  make  any  contract  es- 
sential to  the  transaction  of  its  busi- 
ness are  expressly  granted,  possesses, 
as  fairly  incidental,  the  power  to 
incur  Liability  in  respect  of  securing 


2H  Adams  v.  Yazoo  &  Miss.  Valley  Rd.  Co.,  77  Miss.  194,  1  Miss.  Dec 
(No.  30)  296,  24  So.  200,  317. 

39 


§    13  ENUMERATION   OF   FRANCHISES 

poration  is  granted  by  the  jurisdiction  where  the  company 
is  incorporated,  and  its  situs  is  in  the  State  or  country  of  its 
origin."  The  certificate  of  authority  issued  to  a  foreign  cor- 
poration "confers  upon  such  company  a  privilege  or  right 
not  possessed  or  enjoyed  by  citizens  generally,  and  not  con- 
ferred upon  it  by  its  original  franchise.  This  right  or  privilege 
so  conferred  is  in  that  sense  a  franchise."  29  So  in  Ohio,  where 
a  certificate  of  authority  is  required  to  enable  a  foreign  cor- 
poration to  carry  on  its  business  in  a  State,  other  than  that 
of  its  incorporation,  "the  authority  emanates  from  the  State 
and  the  privilege  granted  is  a  franchise,"  and  any  company 
or  association,  carrying  on  its  business  in  the  domestic  State 
without  such  authority,  is  unlawfully  exercising  a  franchise.30 
It  is  also  said  that:  "A  State  has  the  right  to  debar  aliens 
*  *  *  from  holding  shares  in  her  corporations,  or  to  admit 
them  to  that  privilege  only  on  such  terms  as  she  may  pre- 
scribe. The  right  of  an  association  under  the  protection  of 
an  artificial  personality,  and  of  doing  business  on  its  credit, 

better  facilities   for   transit   to   and  States    composing    the    Union,    the 

from  the  lots  of  lands  which  it  is  its  presumption  is  to  be  indulged  that  a 

business  to  acquire  and  dispose  of.  corporation,  if  not  forbidden  by  its 

Fort  Worth  City  Co.  v.  Smith  Bridge  charter,    may    exercise    the    powers 

Co.,   151  U.  S.  294,  38  L.  ed.   167,  thereby  granted  within  other  States, 

14  Sup.  Ct.  339.  including    the    power    of    acquiring 

Power  to  purchase  and  hold  real  es-  lands,  unless  prohibited  therefrom 
tate  indefinitely.  In  the  absence  of  either  in  their  direct  enactments  or 
an  enabling  statute,  either  general  or  by  their  public  policy,  to  be  deduced 
special,  a  railroad  or  other  corpora-  from  their  general  course  of  legisla- 
tion cannot  purchase  and  hold  real  tion  or  the  settled  adjudications  of 
estate  indefinitely,  without  regard  to  their  highest  courts.  Christian  Union 
the  uses  to  be  made  of  it.  Case  v.  v.  Yount,  101  U.  S.  352,  25  L.  ed.  888. 
Kelly,  133  U.  S.  21,  33  L.  ed.  513,  As  to  right  of  a  corporation  to  hold 
10  Sup.  Ct.  516.  lands  in  a  State  other  than  that  of  its 

Foreign  corporations — Power  to  ac-  incorporation,  see  State  v.   Boston, 

quire  lands.     In  harmony  with  the  Concord  &  Montreal  Rd.  Co.,  25  Vt. 

general   law   of   comity    among   the  433. 

29  Northwestern  Mutual  Life  Ins.  Ohio  St.  163,  194,  24  L.  R.  A.  298,  37 
Co.  v.  Lewis  &  Clarke  County,  28  N.  E.  828,  per  Williams,  J.,  quoting 
Mont.  484,  491,  492,  72  Pac.  982,  per  also  from  Spelling  on  Extraordinary 
Poorman,  Comm'r.  Relief,  §§  1807,  1808. 

30  State  ex  rel.   v.   Ackerman,  51 

40 


ENUMERATION   OF   FRANCHISES  §    14 

whether  it  be  obtained  by  a  special  charter  or  under  a  gen- 
eral incorporation  law,  is  a  franchise  granted  by  the  State 
to  such,  and  such  only,  as  she  deems  fit  to  be  intrusted  with 
its  exercise."  31 

§  14.  Common  Carriers— Railroads — Street  Railroads. — 

Although  the  business  of  a  common  carrier  is  not  of  itself  a  fran- 
chise, but  is  general  and  has  its  foundation  in  the  common  law, 
needing  in  itself  no  legislative  authority,32  still  a  grant  to  a  cor- 
poration of  a  right  to  lay  out,  construct  and  operate  a  railroad, 
is  a  franchise.33  So  a  grant  by  a  municipal  corporation  to  a 
railway  company  of  a  right  of  way  through  certain  streets  of  the 
municipality,  with  the  right  to  construct  its  railroads  thereon 
and  occupy  them  for  its  use,  constitutes  a  franchise.34  It  is  also 
said  that  "the  right  of  a  railroad  company  to  be,  and  to  build  a 
road  is  a  franchise;"  35  it  is  a  grant  to  the  corporation  of  the 
capacity  to  exercise  a  portion  of  the  powers  of  sovereignty  for 
the  purpose  of  making  a  pecuniary  profit  to  itself.36    So  the 

31  State  v.  Travellers'  Ins.  Co.,  70  Co.  v.  Roll,  66  N.  Y.  Supp.  748,  749, 
Conn.  590,  600,  40  Atl.  465,  66  Am.  750,  32  Misc.  321;  Miller  v.  Rutland 
St.  Rep.  138,  per  Baldwin,  J.  (Taxa-  &  Washington  Rd.  Co.,  36  Vt.  452, 
tion).  494,  per  Barrett,   J.,   quoting  from 

32  McGregor  v.  Erie  Ry.  Co.,  35  Bank  of  Middlebury  v.  Edgerton,  30 
N.  J.  L.  89,  96,  per  Bedle,  J.  Vt.  190,  per  Bennett,  J.;  Camblos  v. 

33  People's  Railroad  v.  Memphis  Philadelphia  &  Reading  Rd.  Co.,  4 
Railroad,  10  Wall.  (77  U.  S.)  38,  51,  Brewster  (Pa.),  563,  596,  597,  per 
19  L.  ed.  844,  per  Clifford,  J.  [citing  Cadwalader,  Dist.  J.;  Thorpe  v.  Rut- 
Beekman  v.  Saratoga  &  Schenectady  land  &  Burlington  Rd.  Co.,  27  Vt. 
Rd.  Co.,  3  Paige  Ch.  (N.  Y.)  45;  140,  62  Am.  Dec.  625;  State  v.  Bos- 
Willoughby  v.  Horridge,  16  Eng.  L.  ton,  Concord  &  Montreal  Rd.  Co.,  25 
&  Eq.  437,  3  Kent's  Comm.  (11th  Vt.  433,  442,  per  Redfield,  Ch.  J. 
ed.)  590];  Driscoll  v.  Norwich  &  3<  New  Orleans,  Spanish  Fort  & 
Worcester  Rd.  Co.,  65  Conn.  230,  Lake  Rd.  Co.  v.  Delamore,  114  U.  S. 
254,  32  Atl.  354,  per  Andrews,  C.  J.;  501,  5  Sup.  Ct.  1009,  29  L.  ed.  244. 
Milhau  v.  Sharp,  27  N.  Y.  611,  619,  See  §§  47,  48,  herein. 

per  Selden,  J.  3S  Consolidated  Gas  Co.  v.   Balti- 

See  the  following  cases:  Kennebec  more  City,  101  Md.  541,  545-548,  61 

&  Portland  Rd.  Co.  v.  Portland  &  Atl.  532,  per  McSherry,  C.  J. 

Kennebec  Rd.  Co.,  59  Me.  9,  66,  dis-  3B  Driscoll  v.  Norwich  &  Worcester 

senting  opinion  of  Tapley,  J.;  New  Rd.  Co.,  65  Conn.  230,  254,  32  Atl 

York,  Lackawanna  &  Western  Ry.  354,  per  Andrews,  C.  J. 

41 


§    14  ENUMERATION  OF  FRANCHISES 

right  to  build  in  and  upon  a  public  road  or  river  is  a  franchise. 
In  this  respect  the  owners  of  wharves  and  railroads  stand 
upon  the  same  plane  and  have  similar  rights.37  Again,  it  is 
said  that  the  right  to  carry  passengers  on  a  railway  is  a  fran- 
chise requiring  a  specific  grant  from  the  legislature  and  that 
the  right  to  run  a  railroad  "is  as  much  a  part  of  the  franchise 
as  the  right  to  build  it."  38  It  is  declared,  however,  that  the 
right  to  build,  own,  manage  and  run  a  railroad,  or  take  the 
tolls  thereon,  is  not,  of  necessity,  of  a  corporate  character,  or 
dependent  upon  corporate  rights,  as  it  may  belong  to  and  be 
enjoyed  by  natural  persons.39  The  right  to  construct  and 
operate  a  street  railway  is  also  a  franchise  granted  by  the 
State  upon  considerations  of  public  policy.40  So  in  a  New 
York  case  it  is  said  that:  "The  right  to  construct  and  operate 
a  street  railway  is  a  franchise  which  must  have  its  source  in 
the  sovereign  power,  and  the  legislative  power  over  the  sub- 
ject has  this  limitation,  that  the  franchise  must  be  granted 
for  public  and  not  for  private  purposes,  or  at  least  the  grant 
must  be  based  upon  public  considerations."  41  So  a  grant  of 
a  privilege  by  a  city  ordinance  to  a  railroad  company,  of  the 
use  of  certain  streets,  is  a  franchise.42    And  a  grant  of  powers, 

37  Pennsylvania  Rd.  Co.  v.  Phila-  quotation  in  Hatfield  v.  Strauss,  189 
delphia  Belt  Line  Rd.  Co.,  10  Pa.  Co.  N.  Y.  208,  224,  226  (per  Bartlett,  J.) 
Ct.  Rep.  625,  629.  (dissenting  opinion   per   Chase,   J.), 

38  McGregor  v.  Erie  Ry.  Co.,  35  82  N.  E.  172;  case  affirms  102  N.  Y. 
N.  J.  L.  89,  97,  per  Bedle,  J.  Supp.  934,  117  App.  Div.  671. 

39  Miller  v.  Rutland  &  Washington  The  right  to  construct  and  operate 
Rd.  Co.,  36  Vt.  452,  494,  per  Bar-  a  street  railway  in  a  city  and  to  take 
rett,  J.  (citing  Bank  of  Middlebury  v.  tolls  from  persons  traveling  on  the 
Edgerton,  30  Vt.  182,  190);  Joy  v.  same  is  a  franchise.  Denver  &  S.  Ry. 
Jackson  &  Michigan  Plank  Road  Co.  v.  Denver  City  Ry.  Co.,  2  Colo. 
Co.,  11  Mich.  155,  164,  165,  per  673.  See  State  v.  Columbus  Ry.  Co., 
Christiancy,  J.  24  Ohio  Cir.  Ct.  609,  as  to  rights  and 

"Thompson   v.   Schenectady  Ry.  franchise  prior  to  act  of  May  14,  1878, 

Co.,    131    Fed.    577,    579,    per  Wal-  75  Ohio  Laws,  359. 

lace,  Cir.  J.    See  §§  47,  48,  herein.  42  Port  of  Mobile  v.  Louisville  & 

41  Paige   v.    Schenectady   Ry.   Co.  Nashville  Rd.  Co.,  84  Ala.  115,  4  So. 

(Thompson  v.  Same),  178  N.  Y.  102,  106  (the  original  charter  here  granted 

115,  70  N.  E.  213,  per  Martin,  J.,  the  right  to  use  any  street  or  highway 

case  reverses  82  N.  Y.   Supp.    192,  and  the  amended  charter  authorized 

84  App.  Div.  91.    Substantially  same  grants  by  cities,  etc.,  of  rights,  privi- 

42 


ENUMERATION   OF   FRANCHISES  §    15 

privileges  and  immunities  conferred  by  a  resolution  of  a 
municipality,  to  run  a  street  railroad  in  the  city,  is  the  grant 
of  a  franchise  which  is  void  if  made  without  the  proper  legis- 
lative authority.43  But  the  right  of  a  city  railway  company 
to  use  certain  streets  acquired  by  contract  with  the  city  and 
giving  an  exclusive  right,  constitutes  no  part  of  the  franchise 
of  the  company  and  is  not  of  itself  a  franchise,  although  it  is 
in  the  nature  of  property  and  an  incorporeal  right.44  In  a 
Wisconsin  case  the  court,  in  discussing  the  question  of  the 
proper  remedy,  under  a  statute,  for  usurping  or  unlawfully 
holding  or  exercising,  etc.,  "any  franchise,"  says  that  a  street 
railway  franchise  is  of  the  same  nature  as  that  of  a  franchise 
to  operate  a  system  of  public  waterworks  in  the  streets  of  a 
city,  and  while  not  a  corporate  franchise  necessary  to  corpo- 
rate existence,  it  is  still  a  franchise  or  "special  privilege, 
within  the  statute,  granted  by  sovereign  authority  and  the 
State  may  always  inquire  into  the  title  by  which  it  is  held, 
and  render  judgment  of  ouster  if  the  party  assuming  to  exer- 
cise it  has  not  title  thereto."  45 

§  15.  Bridges — Roadways — Ferries — Canals. — The  right  to 
construct  and  maintain  a  public  bridge  is  a  franchise.46    So 

leges  and  franchises  within  city  may  be  exercised  without  the  con- 
limits),  sent  of  the  city  councils.     Philadel- 

43  State    v.    Mayor,    etc.,   of   New  phia,  City  of,  v.  McManes,  175  Pa. 

York,  3  Duer  (N.  Y.),  119.  28,  34  Atl.  331. 

The  right  or  privilege  of  construct-  As  to  franchise  to  construct  connect- 
ing and  operating  railroads  in  the  ing  switch  from  a  street  railway  track 
streets  is  called  a  "franchise"  for  to  a  warehouse,  under  ordinance, 
convenience.  Adee  v.  Nassau  Elec-  granting  "permission  to  connect," 
trie  Rd.  Co.,  72  N.  Y.  Supp.  992,  sec  Dulaney  v.  United  Rys.  &  Elec- 
1000,  65  App.  Div.  529,  per  Wood-  trie  Co.,  104  Md.  423,  65  Atl.  45. 
ward,  J.,  case  aff'd  (Mem.)  177  N.  Y.  "Metropolitan  City  Ry.  Co.  v. 
548,  69  N.  E.  1120.  Chicago  West.  Division  Ry.  Co.,  87 

Railway    in    fark.     The    commis-  111.  317,  322. 

sinners  of  Fairmount  Park  in  the  city  45  State  ex  rcl.  Vilter  Mfg.  Co.  v. 

of  Philadelphia   have  the  power  to  Milwaukee,  Burlington  &  Lake  Ge- 

grant  to  an  individual  or  a  foreign  neva  Rd.  Co.,  116  Wis.  142,  92  N.  W. 

corporation  the  franchise  or  power  to  546,  per  Winslow,  J. 

construct    a    passenger    railway    in  4(l  County  Commissioners  v.  Chand- 

Fairmount  Park,  and  such  franchise  ler,  96  U.  S.  205,  209,  24  L.  ed.  625, 

43 


§    15  ENUMERATION   OF   FRANCHISES 

it  is  said  in  a  case  in  the  Federal  Supreme  Court,  that:  "The 
corporation  had  conferred  on  it  a  public  right  of  partially 
obstructing  the  river,  which  is  a  common  highway,  and  which 
obstruction  would  have  been  a  nuisance  if  done  without 
public  authority.  This  special  privilege,  conferred  on  the 
corporation  by  the  sovereign  power,  of  obstructing  the  naviga- 
tion, did  not  belong  to  the  country  generally  by  common 
right  and  is  therefore  a  franchise."  47  And  the  rule  would 
apply  to  the  right  of  a  riparian  proprietor  to  make  a  roadway, 
which  includes  a  right  of  way,  and  to  erect  a  bridge  which  is 
to  be  a  drawbridge.48     Bridges  are  of  the  same  nature  as 

per  Bradley,  J.;  Davis  v.  Mayor  of  Buffalo  County,  4  Neb.  150,  158,  per 

New  York,  14  N.  Y.  506,  523,  67  Am.  Maxwell,  J.  (is  part  of  a  road). 

Dec.  186,  per  Denio,  C.  J.    See  Norris  Oregon:  Bank  of  Idaho  v.  Malheur 

v.  Farmers'  &  Teamsters'  Co.,  6  Cal.  County,  30  Oreg.  420,  423,  45  Pac. 

590,  595,  65  Am.  Dec.  535;  Tuckahoe  781,  35  L.  R.  A.,  141  per  Moore,  J. 

Canal  Co.  v.  Tuckahoe  Rd.  Co.,  11  (is  part  of  highway;   a  case  of  me- 

Leigh  (Va.),  42,  75,  per  Tucker,  P.  chanic's  lien  on  public  property). 

The  consideration  for  building  the  Pennsylvania:  Westfield  Borough 
bridge  for  the  political  corporation  v.  Tioga  County,  150  Pa.  152,  153, 
was  the  franchise  granted  to  the  24  Atl.  700,  per  Mitchell,  P.  J.  (de- 
building  corporation.  Police  Jury  v.  fined  as  part  of  public  highway); 
Bridge  Co.,  44  La.  Ann.  137,  138,  10  Commonwealth  ex  rel.  Freeman  v. 
So.  617.  Westfield  Borough,    11   Pa.   Co.   Ct. 

As  to  bridge  as  a  structure  not  being  R.  369,  372,  per  Mitchell,  C.  J.  (de- 

a  franchise  see  Smith  v.  Mayor,  etc.,  fined;  is  part  of  public  highway). 

of  New  York,  68  N.  Y.  552,  555,  per  England:   Rex  v.  Inhabitants  of 

Earl,    J.;    opinion    given    in    §34,  Bucks  County,  12  East,  192,  203,  204, 

herein,  as  to  distinctions.  per  Lord   Ellenborough,   C.   J.    (de- 

Public  bridge  defined  and  as  part  of  fined;   is   part   of   public   highway); 

road  or  highway  see:  Rex  v.  Inhabitants  of  Yorkshire,  2 

Alabama:    State    v.    Street,    117  East,  342,  349,  per  Lord  Ellenbor- 

Ala.  203,  208,  23  So.  807,  per  Brick-  ough,  C.  J. 

ell,  C.  J.  (defined  and  declared  part  That    "bridge"   does  not   include 

of  road  or  highway).  approaches  under  statute  relating  to 

Montana:  Cascade  County  v.  City  liabilities  of  cities  and  counties  for 

of  Great  Falls,  18  Mont.  537,  540,  46  construction  and  repairs,  see  Central 

Pac.  437  (is  part  of  highway).  City  v.   Morquis    (Neb.,    1905),    106 

Nebraska:  Union  Pacific  Rd.  Co.  N.    W.    221,    under   Cobbey's   Ann. 

v.  Commissioners  of  Colfax  County,  4  Stat.,  1903,  §  8756. 

Neb.  450,  456,  per  Maxwell,  J.  (de-  47  Covington    Drawbridge    Co.    v. 

fined  as  part  of  common  highway  and  Shepherd,  21  How.   (62  U.  S.)   112, 

considered  as  an  internal  improve-  123,  16  L.  ed.  38,  per  Catron,  J. 

ment);  People,  Commissioners  of,  v.  4S  Trustees     of     Southampton     v. 

44 


ENUMERATION    OF    FRANCHISES 


§  15 


ferries;  a  bridge  franchise  differs  in  no  essential  from  a  ferry- 
franchise  except  in  the  mode  or  manner  of  transportation; 
both  are  for  the  same  purpose,  that  is,  to  transfer  men,  cattle 
and  vehicles  across  a  stream  for  tolls.49  So  a  right  to  estab- 
lish and  maintain  a  public  ferry  is  a  franchise,50  and  it  is  said 


Jessup,  162  N.  Y.  122,  56  N.  E.  538, 
rev'g  42  N.  Y.  Supp.  4,  10  App.  Div. 
456  (a  case  as  to  construction  and 
material  of  which  roadway  should  be 
built.  See  this  case  under  §  48, 
herein).  See  County  Commissioners 
v.  Chandler,  96  U.  S.  205,  209,  24 
L.  ed.  625,  per  Bradley,  J.;  Davis  v. 
Mayor  of  New  York,  14  N.  Y.  506, 
523,  69  Am.  Dec.  186,  per  Denio,  C.  J. 

49  Hunter  v.  Moore,  44  Ark.  184, 
188,  51  Am.  Rep.  589,  per  Eakin,  J.; 
Gilman  v.  Philadelphia,  3  Wall. 
(70  U.  S.)  713,  726,  18  L.  ed.  96,  per 
Swayne,  J. 

"  It  is  a  franchise  to  be  empowered 
to  build  a  bridge  or  to  keep  a  ferry 
over  a  public  stream,  with  a  right  to 
demand  tolls  or  ferriage."  Con- 
solidated Gas  Co.  v.  Baltimore  City, 
101  Md.  541,  545-548,  61  Atl.  532, 
per  McSherry,  C.  J. 

50  See  the  following  cases: 
United  States:  County  Commis- 
sioners v.  Chandler,  96  U.  S.  205,  209, 
24  L.  ed.  625,  per  Bradley,  J.;  Peo- 
ple's Railroad  v.  Memphis  Railroad, 
10  Wall.  (77  U.  S.)  38,  51,  19  L.  ed. 
844,  per  Clifford,  J. 

Alabama:  Tuscaloosa  County  v. 
Foster,  132  Ala.  392,  399,  31  So.  587; 
see  Dyer  v.  Tuscaloosa  Bridge  Co.,  2 
Port.  (Ala.)  296,  303,  304,  27  Am. 
Dec.  655,  per  Hitchcock,  J. 

Arkansas:  Bell  v.  Clegg,  25  Ark. 
26,  28,  per  Compton,  J. 

California:  Norris  v.  Farmers'  & 
Teamsters'  Co.,  6  Cal.  590,  595,  65 
Am.  Dec.  535. 

Massachusetts:  Fay,  Petitioner, 
15   Pick.    (32    Mass.)   243,   249,   per 


Shaw,  C.  J.;  see  Attorney  General  v. 
Boston,  123  Mass.  478. 

Minnesota:  McRoberts  v.  Wash- 
burne,  10  Minn.  23. 

New  York:  Milhau  v.  Sharp,  27 
N.  Y.  611,  619,  84  Am.  Dec.  314; 
Davis  v.  Mayor  of  New  York,  14 
N.  Y.  506,  523,  67  Am.  Dec.  186,  per 
Denio,  C.  J. 

North  Dakota:  Patterson  v.  Woll- 
man,  5  N.  Dak.  608,  617,  33  L.  R.  A. 
536,  67  N.  W.  1040,  per  Corliss,  J. 

Oregon:  Montgomery  v.  Multno- 
mah Ry.  Co.,  11  Oreg.  344,  347,  348, 
3  Pac.  435  (quoting  from  Attorney 
General  v.  Boston,  123  Mass.  478). 

South  Dakota:  Evans  v.  Hughes 
County,  3  S.  Dak.  580,  581,  582,  54 
N.  W.  603,  per  Corson,  J. 

England:  Blissett  v.  Hart,  Willes, 
508. 

The  right  to  establish  and  main- 
tain a  public  ferry  is  a  franchise. 
Hudspeth  v.  Hall,  111  Ga.  510,  36 
S.  E.  770. 

"The  right  to  establish  and  keep  a 
public  ferry  is  a  franchise  *  *  * 
'  a  ferry  is  publici  juris.  It  is  a  fran- 
chise which  no  one  can  erect  without 
a  license  from  the  Crown.'  *  *  * 
The  franchise  in  England  is  in  the 
Crown,  and  in  this  country  in  the 
State."  Douglass's  Appeal,  IIS  Pa. 
65,  68-70,  12  Atl.  834,  per  Master's 
Report. 

"  The  right  to  establish  and  keep  a 
public  ferry  is,  in  law,  termed  a  fran- 
chise *  *  *  and  it  is  perfectly 
clear  that  the  franchise  of  a  public 
ferry  cannot  be  set  up  or  exercised  by 
any  of  the  king's  subjects  without 

45 


§    15  ENUMERATION   OF   FRANCHISES 

in  a  case  in  the  United  States  Circuit  Court  that,  "for  all  time 
the  setting  up  of  a  highway  or  ferry  for  conveying  persons  and 
property  has  been  deemed,  in  the  common  law  a  franchise, 
a  part  of  the  subjects  in  the  immediate  possession  of  the  politi- 
cal power,  and,  to  exercise  which,  demanded  a  release  of  this 
right  by  the  sovereign  by  special  grant  or  charter.  It  is  not 
in  its  nature,  or  actual  history,  like  those  private  avocations 
of  milling,  hotel  keeping  and  traffic,  which  all  may  pursue 
at  pleasure  unless,  in  the  exercise  of  police  power,  a  restrain- 
ing statute  interferes  and  requires  a  license."  51  But  it  is 
declared  that  a  ferry  franchise  is  neither  more  or  less  than  a 
right  conferred  to  land  at  a  particular  point,  and  receive 
toll  for  the  transportation  of  passengers  and  property  from 
that  point  across  a  stream.52  No  franchise  is  required,  how- 
prescription,  grant  or  license  from  State,  from  the  year  1820,  the  right 
the  Crown.  Thus  says  Chief  Jus-  to  keep  a  public  ferry  for  toll  had 
tice  Willes  (Willes'  Rep.  512;  Blissett  been  a  franchise  requiring  a  legisla- 
v.  Hart,  note),  'a  ferry  is  publici  tive  grant.  Milton  v.  Haden,  32  Ala. 
juris.  It  is  a  franchise  which  no  30,  70  Am.  Dec.  523. 
one  can  erect  without  a  license  from  Under  the  laws  of  Kentucky  a  ferry 
the  Crown.'  "  Prosser  v.  Wapello  franchise  on  the  Ohio  river  was  held 
County,  18  Iowa,  327,  333,  per  grantable  to  a  citizen  who  was  a 
Dillon,  J.  riparian  owner  on  the  Kentucky  side. 

"  A  public  ferry  is  a  franchise,  and  Conway  v.  Taylor's  Executor,  1 
consists  not  merely  in  the  building  of  Black.  (66  U.  S.)  603,  17  L.  ed.  191. 
the  ferry  and  the  furnishing  of  the  51  Talcott  v.  Township  of  Pine 
boats,  but  in  the  running  of  them.  Grove,  1  Flipp  (U.  S.  C.  C),  120, 
The  right  of  the  public  to  use  them  is  142,  Fed.  Cas.  No.  13,733,  per  Em- 
common,  but  the  running  of  the  ferry  mons,  Cir.  J.  [case  aff'd  Township 
is  a  part  of  the  franchise."  Mc-  of  Pine  Grove  v.  Talcott,  19  Wall. 
Gregor  v.  Erie  Ry.  Co.,  35  N.  J.  L.  (86  U.  S.)  666,  22  L.  ed.  227]. 
89,  98,  per  Bedle,  J.  52  Mills  v.  County  of  St.  Clair,  7  111. 

"The  right  to  establish  a  ferry  was  197. 
a  franchise,  and  no  man  could  set  up  "  A  ferry,  in  its  ordinary  sense,  is 
a  ferry,  although  he  owned  the  soil  but  a  substitute  for  a  bridge  where  a 
and  landing-places  on  both  sides  of  bridge  is  impracticable,  and  its  end 
the  stream,  without  a  charter  from  and  use  is  the  same.  Like  a  toll- 
the  king  or  a  prescription  time  out  of  bridge,  it  is  a  franchise  created  for  the 
mind."  People  v.  Budd,  117  N.  Y.  1,  use  and  convenience  of  the  traveling 
17,  18,  26  N.  Y.  St.  R.  533,  22  N.  E.  public,  as  a  link  in  the  highway  sys- 
670,  682,  per  Andrews,  J.  tern  of  the  country,  and  by  no  means 

In  an  early  case  in  Alabama  it  is    includes  the  transportation  of  goods, 
held  that  under  the  statutes  of  that   wares,    and   merchandise   by  them- 

46 


ENUMERATION    OF   FRANCHISES 


§  15 


ever,  to  lawfully  establish  and  maintain  a  private  ferry  as 
incident  to  ownership  of  lands  on  each  side  of  the  stream,  and 

6elves,  or,  in  other  words,  the  carry- 
ing trade  of  modern  commerce. 
Ferriage,  literally  speaking,  is  the 
price  or  fare  fixed  by  law  for  the 
transportation  of  the  traveling  pub- 
lic, with  such  goods  and  chattels  as 
they  may  have  with  them,  across  a 
river,  bay,  or  lake."  People  v.  San 
Francisco  &  Alameda  Rd.  Co.,  35 
Cal.  606,  619,  per  Sanderson,  J. 

"A  ferry  franchise  is  a  privilege  to 
take  tolls  for  transporting  men, 
horses,  cattle  and  vehicles,  with  or 
without  them  loading,  across  a  lake 
or  stream,  or  some  other  body  of 
water."  Hunter  v.  Moore,  44  Ark. 
184,  188,  51  Am.  Rep.  589,  per 
Eakin,  J. 

"A  ferry  franchise  is  neither  more 
nor  less  than  a  right  conferred  to 
land  at  a  particular  point,  and  secure 
toll  for  the  transportation  of  passen- 
gers and  property  from  that  point 
across  a  stream."  Mississippi  River 
Bridge  Co.  v.  Lonergan,  91  111.  508, 
513,  per  Craig,  C.  J.,  quoting  Mills  v. 
County  of  St.  Clair,  2  Gilm.  (111.)  197. 

A  ferry  "is  a  franchise  granted  by 
the  State  and  regulated  by  statute. 
It  may  be  defined  to  be  a  right  to 
transport  persons  and  property  across 
a  watercourse  and  land  within  the 
jurisdiction  granting  the  franchise 
and  receive  tolls  and  pay  therefor." 
Einstman  v.  Black,  14  111.  App.  381, 
383,  384,  per  Higbee,  J.  (also  citing 
Bouvier's  L.  Diet.). 

"The  definition  of  a  ferry  in  the 
early  books  is  '  a  liberty  by  prescrip- 
tion, or  the  King's  grant,  to  have  a 
boat  for  passage  upon  a  great  stream 
for  carriage  of  horses  and  men  for 
reasonable  toll.'  Termes  de  la  Ley 
(1st  Am.  ed.),  223;  Jacobs'  Law  Diet., 
'Ferry.'     And  according  to    all   au- 


thorities, English  and  American,  the 
grant  of  a  ferry,  in  its  very  nature, 
implies  the  taking  of  tolls  by  the 
grantee."  Attorney  General  v.  Bos- 
ton, 123  Mass.  460,  468,  per  Gray, 
C.J. 

"A  ferry,  when  considered  as  a 
franchise,  consists  in  the  right,  aris- 
ing from  grant  or  prescription,  to 
have  a  boat  or  boats  for  carrying  men 
and  horses  across  a  river  for  reason- 
able fare  or  toll  (Burrill's  Law  Diet., 
'Ferry').  Bouvier  defines  a  ferry  to 
be  a  place  where  persons  and  things 
are  taken  across  a  river  or  stream  in 
boats  or  other  vessels  for  hire.  The 
franchise  consists  in  the  right  to  exact 
toll,  and  this  right  involves  the  cor- 
responding obligation  of  maintaining 
the  ferry  and  carrying  such  persons  as 
apply  and  pay  their  fare."  Akin 
(Aiken)  v.  Western  Rd.  Corp.,  30 
Barb.  (N.  Y.)  305,  310,  per  Harris,  J. 
See  also  Alexandria,  Warsaw  & 
Keokuk  Ferry  Co.  v.  Wisch,  73  Mo. 
655,  657,  39  Am.  Rep.  535,  per  Nor- 
ton, J. 

The  essential  element  of  a  ferry 
franchise,  is  the  exclusive  right  to 
transport  persons,  with  the  horses 
and  vehicles  and  such  personal  goods 
as  accompany  them  from  one  shore  to 
the  other.  Broadnax  v.  Baker,  94 
N.  Car.  675,  55  Am.  Rep.  633. 

"A  ferry  is  not  a  railroad,  nor  a 
railroad  a  ferry.  Both  franchises,  i.  e., 
the  right  to  construct  a  railroad  and 
to  erect  a  ferry,  may  be  granted  to 
one  corporation,  where  the  grant  con- 
flicts with  no  other  rights.  But 
*  *  *  the  two  things  are  in  their 
nature  distinct,  and  cannot  be 
merged."  Aiken  (Akin)  v.  Western 
Rd.  Corp.,  20  N.  Y.  370,  376,  per 
Selden,  J. 

47 


§  16 


ENUMERATION   OF   FRANCHISES 


the  owner  of  such  a  ferry  may  charge  and  collect  toll  for  its  use, 
but  he  cannot  maintain  the  ferry  for  use  of  the  public  at  large 
or  seek  public  patronage  and  maintain  its  character  as  a  pri- 
vate ferry.53  Again,  the  right  to  improve  navigation  by  a 
canal  is  a  franchise.54 

§  16.  Right   to   Supply  Water,  Gas  or  Electricity.— The 

right  to  dig  up  the  streets  of  a  city  or  town  and  to  supply 
water  to  the  inhabitants  is  a  franchise.55  So  the  right  of  a 
waterworks  company  to  exist  as  a  corporation  and  to  collect 
water  rates  for  the  use  of  water  supplied  to  a  city  and  its 
inhabitants  are  franchises.56    And  a  grant  made  by  the  com- 


"That  the  franchise  of  a  ferry  at 
common  law,  and  in  the  State  of 
Massachusetts  extends  beyond  the 
landing  places,  is  very  clear  from  au- 
thority." Charles  River  Bridge  v. 
Warren  Bridge,  11  Pet.  (36  U.  S.) 
420,  555,  9  L.  ed.  773,  per  M'Lean,  J., 
citing  10  Petersdorf,  53,  13  Vin.  513; 
Blissett  v.  Hart,  Willes'  Rep.  512, 
note;  King  v.  Nicholson,  12  East, 
330;  Peter  v.  Kendal,  6  Barn.  & 
Cress.  703;  Year  Book,  Hen.  6,  22; 
Rolles'  Ab.  140;  Fitz.,  428,  note; 
Com.  Dig.,  Market,  c.  2;  Piscary,  B. 
Action  on  the  case,  A;  3  Blk.  219; 
Nott  &  M'Cord,  387;  Yard  v.  Ford,  2 
Saund.  172;  6  Mod.  229;  2  Vent.  344; 
3  Levinz,  220;  Com.  Dig.,  Patent,  F., 
4,  5,  6,  7;  2  Saund.  72,  note  4;  2  Inst. 
406;  Chit.  Pre.,  12  Chap.  3;  10  Chap. 
2;  3  Salk.  198;  Tripp  v.  Frank,  4 
Term.  666;  Saund.  114;  Croke, 
E.  710. 

53  Hudspeth  v.  Hall,  111  Ga.  510, 
36  S.  E.  770. 

54  See  Tuckahoe  Canal  Co.  v. 
Tuckahoe  Rd.  Co.,  11  Leigh  (Va.), 
42,  75,  per  Tucker,  P. 

"The  right  to  improve  and  extend 
the  navigation  of  the  river,  was  a 
franchise  granted;  the  manner  of  do- 
ing it  a  mode  of  exercising  that  fran- 

48 


chise."  Canal  v.  Railroad  Co.,  4 
Gill  &  J.  (Md.)  1,  107,  per  Bu- 
chanan, Ch.  J. 

55  New  Orleans  Water  Works  Co.  v. 
Rivers,  115  U.  S.  674,  681,  29  L.  ed. 
525,  6  Sup.  Ct.  273,  case  controlled  by 
New  Orleans  Gas  Co.  v.  Louisiana 
Light  Co.,  115  U.  S.  650,  29  L.  ed. 
516,  6  Sup.  Ct.  252.  Principal  case  is 
cited  in  Walla  Walla  v.  Walla  Walla 
Water  Co.,  172  U.  S.  1,  9,  43  L.  ed. 
341,  19  Sup.  Ct.  77;  cited,  Tillamook 
Water  Co.  v.  Tillamook  City,  139 
Fed.  405,  406;  cited,  Boise  City 
Artesian  Hot  &  Cold  Water  Co.  v. 
Boise  City,  123  Fed.  232,  235;  aff'd  in 
St.  Tammany  Water  Works  v.  New 
Orleans  Water  Works,  120  U.  S.  64, 
30  L.  ed.  563,  7  Sup.  Ct.  405.  See 
New  Orleans  Gas  Co.  v.  Louisiana 
Light  Co.,  115  U.  S.  650,  29  L.  ed. 
516,  6  Sup.  Ct.  252;  Andrews  v.  Na- 
tional Foundry  &  Pipe  Works,  Lim., 
61  Fed.  782,  787-789,  10  C.  C.  A.  60, 
per  Woods,  Cir.  J.,  s.  c,  73  Fed.  516, 
19  C.  C.  A.  548,  77  Fed.  774,  23 
C.  C.  A.  454,  113  Fed.  793,  794,  183 
U.  S.  216,  225.  Examine  §§  47,  48, 
herein. 

ss  Spring  Valley  Water  Works  v. 
Schottler,  62  Cal.  69  (under  constitu- 
tion of  State), 


ENUMERATION   OF   FRANCHISES  §    16 

mon  council  of  a  city,  by  authority  of  its  charter,  to  con- 
struct, maintain  and  operate  a  system  of  waterworks  in  such 
city  and  to  use  the  streets  and  alleys  thereof  for  that  purpose, 
is  a  legislative  grant  through  the  medium  of  an  authorized 
legislative  agency,  and  is  a  franchise.57  So  an  ordinance  grant- 
ing to  a  corporation  an  exclusive  right  to  supply  a  city  with 
water  is  a  franchise.58  And  under  a  statute  providing  for 
taxation  the  franchise  primarily  in  view  "is  any  special  or 
exclusive  privilege  not  allowed  by  law  to  natural  persons."  59 
It  is  also  held  that  a  private  corporation  is  a  "person"  within 
the  meaning  of  a  statute  providing  a  remedy  for  usurping  or 
unlawfully  holding  or  exercising,  etc.,  "any  franchise,"  and 
that  a  franchise  to  operate  a  system  of  public  waterworks  in 
a  city,  using  the  streets  for  that  purpose,  while  not  a  corporate 
franchise  in  the  sense  that  it  is  necessary  to  corporate  exist- 
ence, is  still  a  franchise  within  the  meaning  of  the  enactment 
and  may  be  annulled  for  cause  by  quo  warranto  proceedings.60 
Again,  the  right  to  dig  up  and  to  place  pipes  and  mains  in  the 
public  streets  and  ways  of  a  city  for  the  distribution  of  gas  for 
public  and  private  use  is  also  a  franchise.61  So  a  legislative 
grant  of  an  exclusive  right  to  supply  gas  to  a  municipality 
and  its  inhabitants,  through  pipes  and  mains  laid  in  the  public 
streets,  and  upon  condition  of  the  performance  of  the  service 
by  the  grantee,  is  a  grant  of  a  franchise  vested  in  the  State, 

«  State  v.  Portage  City  Water  Co.,  Portage  City  W.  Co.,  107  Wis.  441, 

107  Wis.  441,  83  N.  W.  697.  83  N.  W.  697,  cited  in  State  ex  rel. 

58  Cedar  Rapids  Water  Co.  v.  Cedar  Vilter  Mfg.  Co.  v.  Milwaukee,  Burling- 

Rapids,    118  Iowa,   234,   91    N.    W.  ton  &  Lake  Geneva  Rd.  Co.,  116  Wis. 

1081.    The  question  whether  a  grant  142,  92  N.  W.  546,  per  Winslow,  J. 
by  a  municipality  is  a  franchise   or         61  Consolidated   Gas  Co.   v.   Balti- 

license  is  considered  elsewhere  herein,  more  City,  101  Md.  541,  545-548,  61 

50  Board  of  Councilmen  of  City  of  Atl.  532,  per  McSherry,  C.  J.  (citing 

Frankfort  v.  Stone,  Auditor,  108  Ky.  State  v.  Cinn.  Gas  Co.,  18  Ohio  St. 

400,  406,  22  Ky.  L.  Rep.  25,  56  S.  W.  262;  Jersey  City  Gas  Co.  v.  Dwight, 

679,  per  Hobson,  J.  (a  case  of  taxa-  29  N.  J.  Eq.  242;  Purnell  v.  McLane, 

tion  of  franchise  of  water  company.  98  Md.  589,   593,  56  Atl.   830,   per 

See  above  case  where  the  grant  to  a  Pearce,   J.,  citing  New  Orleans  Gas 

water  company  is  considered  through-  Co.  v.  Louisiana  Light  Co.,  115  U.  S. 

out  the  opinion  as  a  franchise).  650,  059,  6  Sup.  Ct.  252,  29  L.  ed. 

80  State  ex  rcl.  Attorney  General  v.  516. 

4  49 


§  16 


ENUMERATION   OF  FRANCHISES 


in  consideration  of  the  performance  of  a  public  service,  and, 
after  performance,  by  the  grantee,  is  a  contract  protected  by 
the  constitution  of  the  United  States  against  state  legislation 
to  impair  it.62  And  a  consent  by  town  authorities,  acting  un- 
der a  statute,  giving  a  gas  company  power  to  lay  conductors 
for  conducting  gas  in  and  through  the  public  streets  and 
highways  of  a  town,  confers  upon  the  company  a  franchise 
to  carry  on  its  business  in  the  town  and  to  lay  conductors  in 
the  streets  and  highways  for  the  purpose  of  delivering  gas.63 
While  the  right  to  produce  and  sell  electricity  as  a  commercial 
product  is  open  to  all  persons  without  legislative  authority, 
still  the  right  to  use  the  streets  of  a  city  for  the  purpose  of 
transmitting  electricity  with  wires  is  not  common  to  all 
citizens,  but  is  a  franchise  which  can  only  be  granted  by  the 
State  or  a  municipality  acting  under  legislative  authority.64 

works,  and  to  illuminate  a  city,  is  not 
an  ancient  or  usual  occupation  of 
citizens  generally.  No  one  has  the 
right  to  dig  up  the  streets,  and  lay 
down  gas  pipes,  erect  lamp-posts,  and 
carry  on  the  business  of  lighting  the 
streets  and  the  houses  of  the  city  of 
New  Orleans,  without  special  au- 
thority from  the  sovereign.  It  is  a 
franchise  belonging  to  the  State,  and, 
in  the  exercise  of  the  police  power, 
the  State  could  carry  on  the  business 
itself  or  select  one  of  several  agents  to 
do  so.'  "  New  Orleans  Gas  Co.  v. 
Louisiana  Light  Co.,  115  U.  S.  650, 
659,  660,  29  L.  ed.  516,  6  Sup.  Ct.  252. 
See  State  ex  rel.  Attorney  General  v. 
Seattle  Gas  &  Electric  Co.,  28  Wash. 
488,  68  Pac.  496;  Bui.  Code,  §  5780, 
subd.  1,  construed. 

63  People  ex  rel.  Woodhaven  Gas 
Co.  v.  Deehan,  153  N.  Y.  528,  47 
N.  E.  787,  rev'g  11  App.  Div.  175. 
See  Ghee  v.  Northern  Union  Gas  Co., 
56  N.  Y.  Supp  450,  454,  34  App.  Div. 
551,  per  O'Brien,  J  ;  rev'd  158  N.  Y. 
510,  53  N.  E.  592. 

M  Purnell  v.  McLane,  98  Md.  589, 


62  New  Orleans  Gas  Co.  v.  Louisi- 
ana Light  Co.,  115  U.  S.  650,  29  L.  ed. 
516,  6  Sup.  Ct.  252  (cited,  Walla 
Walla  v.  Walla  Walla  Water  Co.,  172 
U.  S.  1,  9,  43  L.  ed.  341,  19  Sup.  Ct. 
77;  cited,  Tillamook  Water  Co.  v. 
Tillamook  City,  139  Fed.  405,  406; 
cited  Boise  City  Artesian  Hot  &  Cold 
Water  Co.  v.  Boise  City,  123  Fed. 
232,  235).  It  is  said  in  the  principal 
case  that:  "The  right  to  dig  up  the 
streets  and  other  public  ways  of  New 
Orleans,  and  place  therein  pipes  and 
mains  for  the  distribution  of  gas  for 
public  and  private  use,  is  a  franchise, 
the  privilege  of  exercising  which 
could  only  be  granted  by  the  State, 
or  by  the  municipal  government  of 
that  city  acting  under  legislative  au- 
thority. Dillon's  Munic.  Corp.  (3d 
ed.)  §691;  State  v.  Cincinnati  Gas 
Co.,  18  Ohio  St.  262;  see  also  Boston 
v.  Richardson,  13  Allen  (Mass.), 
146.  To  the  same  effect  is  the  de- 
cision of  the  Supreme  Court  of  Louisi- 
ana in  Crescent  City  Gas-Light  Co., 
27  La.  Ann.  138,  147,  in  which  it  was 
said:    'The    right    to    operate    gas- 

50 


ENUMERATION    OF    FRANCHISES 


§  17 


But  a  city  ordinance  does  not  create  a  franchise,  which  can  be 
taxed,  by  giving  the  right  to  the  use  of  the  city  streets  to  a 
telegraph  company  for  its  poles  and  wires,  where  it  has  a 
franchise,  under  the  Post  Roads  Act,  to  construct  its  lines 
along  the  post  roads  of  the  United  States,  and  the  state 
statutes  also  give  authority  to  construct  such  lines  upon  any 
public  road  or  highway  and  declare  streets,  alleys  and  roads 
laid  out  and  dedicated  to  the  public  to  be  public  highways, 
and  a  Federal  statute  provides  that  all  public  highways  are 
post  roads.65 


§  17.  Right  to  Tolls,  Fares,  Rates  or  Wharfage.— The  right 
to  receive  tolls  for  the  use  of  roadways,  turnpike  roads,  bridges 
and  ferries  is  a  franchise.66     So  a  turnpike  company  which  con- 


56  Atl.  83.  See  Joyce  on  Electric 
Law  (2d  ed.),  §§  184a,  349,  430a. 

"The  right  to  manufacture  and 
supply  gas  is  not  a  special  privilege 
which  can  only  be  exercised  under 
authority  from  the  sovereign.  There 
is  nothing  in  the  law  to  prevent  an 
individual  from  manufacturing  and 
selling  gas  as  a  private  manufacturing 
business."  West  Manayunk  Gas 
Light  Co.  v.  New  Gas  Light  Co.,  21 
Pa.  Co.  Ct.  Rep.  378. 

65  Western  Union  Teleg.  Co.  v. 
City  of  Visalia,  149  Cal.  744,  87  Pac. 
1023. 

As  to  Post  Roads  Acts  and  tele- 
graph companies'  rights  thereunder, 
see  Joyce  on  Electric  Law  (2d  ed.), 
§§  39  et  seq. 

Electricity — "  Manufacturing  "cor- 
porations, see  Joyce  on  Electric  Law 
(2d  ed.),  §§  169,  932,  933. 

M  Truckee  &  Tahoe  Turnpike  Road 
Co.  v.  Campbell,  44  Cal.  89;  Mc- 
Roberts  v.  Washburne,  10  Minn.  23. 
Pee  Virginia  Canon  Toll  Road  Co.  v. 
People,  22  Colo.  429,  432,  45  Pac. 
398,  37  L.  R.  A.  711,  per  Camp- 
bell, J.;  State  v.  Boston,  Concord  & 


Montreal  Rd.  Co.,  25  Vt.  433,  442, 
per  Redfield,  Ch.  J. 

"The  privilege  of  making  a  road  or 
bridge,  or  of  establishing  a  ferry,  and 
of  taking  tolls  from  the  citizens  for 
the  use  of  the  same,  are  among  the 
most  common  examples  of  a  fran- 
chise [3  Kent's  Coram,,  458;  2  Black. 
Comm.,  37;  Charles  River  v.  The 
Warren  Bridge,  11  Pet.  (36  U.  S.) 
420,  639,  9  L.  ed.  773,  per  Story,  J.]. 
Chancellor  Walworth,  in  Beekman  v. 
The  Saratoga  and  Schenectady  Rail- 
road Company  [3  Paige  (N.  Y.),  75], 
said:  'The  privilege  of  making  a  road 
and  taking  tolls  thereon  is  a  fran- 
chise, as  much  as  the  establishment  of 
a  ferry  or  a  public  wharf,  and  taking 
tolls  for  the  use  of  the  same.'  " 
Davis  v.  The  Mayor  of  New  York,  14 
N.  Y.  506,  523,  67  Am.  Dec.  186,  per 
Denio,  C.  J. 

"Chancellor  Kent  says:  'The  privi- 
lege of  making  a  road  or  establishing 
a  ferry,  and  taking  tolls  for  the  use  of 
the  same,  is  a  franchise,  and  the  pub- 
lic have  an  interest  in  the  same;  and 
the  owners  of  the  franchises  are  an- 
swerable in  damages  if  they  should 

51 


§    17  ENUMERATION    OF   FRANCHISES 

structs  a  road  has  the  franchise  to  collect  the  tolls  authorized 
by  law.67    And  it  has  been  decided  in  Georgia  that  the  right 

refuse  to  transport  an  individual  not  of  common  right,  and  in  this 
without  any  reasonable  excuse,  upon  country,  does  not  exist  in  the  ab- 
being  paid  or  tendered  the  usual  sence  of  a  grant  from  the  legis- 
fare.'  In  the  same  connection,  he  latures.  This  power  of  collecting 
enumerates  in  this  class  of  franchises,  tolls  is  a  part  of  the  sovereign  power 
ferries,  bridges,  turnpikes,  and  rail-  of  the  state,  which  the  legislature 
roads.  3  Kent's  Comm.,  458,  459."  may  delegate  in  return  for  a  sup- 
County  Commissioners  v.  Chandler,  posed  public  good,  and  the  grant 
96  U.  S.  205,  209,  24  L.  ed.  625,  per  of  the  power  may  be  conferred 
Bradley,  J.;  People's  Railroad  v.  with  any  restrictions  which  the 
Memphis  Railroad,  10  Wall.  (77  legislature  may  see  fit  to  impose, 
U.  S.)  38,  51,  19  L.  ed.  844,  per  and  the  grantee  takes  subject  to  all 
Clifford,  J.  such  limitations,  and  the  grant  of  the 

"  No  private  person  can  establish  a  right  is  the  equivalent  of,  or  com- 
public  highway,  or  a  public  ferry  pensation  for,  the  cost  of  building 
or  railroad  or  charge  tolls  for  the  and  maintaining  the  road.  2  Water- 
use  of  the  same  without  authority  man  on  Corporations,  sec.  419; 
from  the  legislature,  direct  or  de-  Angell  &  Ames  on  Corps.,  sec.  4; 
rived.  These  are  franchises. "  Cen-  Commonwealth  v.  Wilkinson,  16 
tral  Pacific  Rd.  Co.  v.  California,  Pick.  175;  Wood  et  al.  v.  Truckee 
162  U.  S.  91,  124,  40  L.  ed.  903,  Turnpike  Co.,  24  Cal.  474;  Craig  v. 
16  Sup.  Ct.  766,  per  Fuller,  C.  J.,  The  People,  47,  111.  487."  The  Vir- 
quoting  from  California  v.  Central  ginia  Canon  Toll  Road  Co.  v.  People, 
Pac.  Rd.,  127  U.  S.  1,  38,  40,  32  22  Colo.  424,  431,  45  Pac.  398,  37 
L.  ed.  150,  8  Sup.  Ct.  1073.  L.  R.  A.  711,  per  Campbell,  J. 

The  right  to  take  tolls  is  appar-  "Toll"   defined  and  distinguished: 

ently    conceded    to    be    a    franchise  see  the  following  cases: 

in  Monongahela  Nav.  Co.  v.  United  United  States:  New  York,  Lake 

States,  148  U.  S.  312,  37  L.  ed.  463,  Erie  &  Western  Rd.  Co.  v.  Pennsyl- 

13  Sup.  Ct.  622;  Detroit  v.  Detroit  vania,  158  U.  S.  431,  435,  15  Sup. 

&  Howell  Plank  Road  Co.,  43  Mich.  Ct.  896,  39  L.  ed.  1043,  per  Shiras, 

140,   5   N.   W.   275;   Grand   Rapids  J.;    St.    Louis    v.    Western    Union 

Bridge    Co.    v.    Prange,    35    Mich.  Teleg.  Co.,  148  U.  S.  92,  97,  13  Sup. 

400,  405,  24  Am.  Rep.  585.  Ct.  485,  37  L.  ed.  380,  per  Brewer, 

To    build    a    mill    upon    a    public  J.    (toll    and    tax    distinguished;    a 

river  and  receive  tolls  for  grinding,  case    of    municipal    charge    for    use 

etc.,  is  said  to  be  a  franchise.     Tuck-  of   streets   by  telegraph   company); 

ahoe    Canal    Co.    v.    Tuckahoe    Rd.  Sands  v.  Manistee  River  Imp.  Co., 

Co.,    11    Leigh    (Va.),    42,    75,    per  123  U.  S.  288,  294,  31  L.  ed.  149,  8 

Tucker,   P.  Sup.  Ct.  113,    per  Field,  J.  (toll  de- 

"The   right  of   a   corporation,   or  fined  and  distinguished  from  taxes); 

of  an   individual,   to   exact   tolls   is  Huse  v.  Glover,  119  U-  S.  543,  548, 

67  Deny  Township  Road,  30   Pa.  Examine  Coe  v.  Columbus,  Piqua 

Super.  Ct.  538.  &  Indiana  Rd.  Co.,  10  Ohio  St.  372. 

52 


ENUMERATION  OF   FRANCHISES                            §    17 

to  receive  tolls  for  the  transportation  of  travelers  and  others 
across  a  river  on  a  public  highway  is  a  franchise  which  belongs 

7  Sup.  Ct.  313,  30  L.  ed.  487,  per  Assoc,  v.  City  of  St.  Louis,  140  Mo. 
Field,  J.  (tolls  for  passage  through  419,  429,  37  S.  W.  525,  per  Mac- 
locks  are  not  impost  on  naviga-  farlane,  J.  (charges  and  rates  al- 
tion,  and  tolls  are  like  charges  for  lowed  to  be  made  by  a  city  for 
wharves  and  docks);  Lake  Superior  water  are  not  in  the  nature  of  general 
&:  Mississippi  Rd.  Co.  v.  United  taxation  but  in  that  of  a  toll);  St. 
States,  93  U.  S.  442,  454,  23  L.  ed.  Louis,  City  of,  v.  Green,  7  Mo.  App. 
965,  per  Bradley,  J.  (toll  and  468,  476,  per  Bakewell. 
freight  compared.  See  also  Id.,  New  York:  Pennsylvania  Coal 
458,  in  dissenting  opinion  of  jus-  Co.  v.  Delaware  &  Hudson  Canal 
tices);  Reading  Rd.  Co.  v.  Pennsyl-  Co.,  3  Abb.  Dec.  (N.  Y.  Ct.  App.) 
vania  (case  of  the  state  freight  tax),  470,  477,  per  Emott,  J. 
15  Wall.  (82  U.  S.)  232,  278,  21  L.  North  Carolina:  McNeal  Pipe  & 
ed.  14,  per  Strong,  J.  (tolls  and  Foundry  Co.  v.  Howland,  111  N.  C. 
freights  defined;  toll  distinguished  615,  624,  16  S.  E.  857,  20  L.  R.  A. 
from  tax);  Kentucky  &  Indiana  743,  per  MacRae,  J.  (toll,  fare  and 
Bridge  Co.  v.  Louisville  &  Nash-  water  rate  defined) . 
ville  Rd.  Co.,  37  Fed.  567,  616,  2  L.  Pennsylvania:  Geiger  v.  Perkio- 
R.  A.  289,  per  Jackson,  J.;  Lake  Su-  men  &  Reading  Turnpike  Road,  167 
perior  &  Mississippi  Rd.  Co.  v.  Pa.  582,  585,  31  Atl.  918,  28  L.  R.  A. 
United  States,  12  Ct.  CI.  35,  54,  per  458,  per  Dean,  J.;  Commonwealth  v. 
Bradley,  J.  (toll  and  freight  com-  New  York,  Lake  Erie  &  Western 
pared).  Rd.  Co.,  145  Pa.  200,  22  Atl.  212; 

Maine:    Wadsworth  v.  Smith,  11  Pennsylvania  Rd.  Co.  v.  Sly,  68  Pa. 

Me.  278,  282,  26  Am.  Dec.  525,  per  205,  210,  per  Sharswood,  J.;  Boyle 

Paris,   J.    (toll  is  a  common   charge  v.  Philadelphia  &  Reading   Rd.  Co., 

which   it  is  the  prerogative  of  the  54  Pa.  310,  314, 

government    alone    to    impose    and  England:  South  Yorkshire  Ry.  & 

regulate).  River  Dun    Co.   v.    Great  Northern 

Michigan:      McKee     v.      Grand  Ry.  Co.,  22  Eng.  L.  &  Eq.  531,  535, 

Rapids  &  Reeds  Lake  St.  Ry.  Co.,  22  L.  J.  Rep.  (N.  S.)  Exch.  305,  per 

41  Mich.  274,  279,  1  N.  W.  873.  Martin,   B. 

Missouri:      St.     Louis     Brewing 

380,  75  Am.  Dec.  518,  per  Gholson,  use   the   road   after  its   completion, 

J.  subject  only  to  the  payment  of  toll. 

"  A  toll  road  is  a  public  highway,  The  acceptance  by  the  corporation  of 

differing  from  ordinary  public  high-  the  franchise  to  construct  the  road 

ways  chiefly  in  this,  that  the  cost  and  the  operation  thereof  constitute 

of   its   construction   in   the   first   in-  a  dedication  of  the  same  as  a  public 

stance   is   borne   by   individuals,    or  highway."     The  Virginia  Canon  Toll 

by  a  corporation,  having  authority  Road   Co.   v.    People,  22   Colo.  429, 

from    the    State    to    build    it,    and  431,  45   Pac.  398,  37   L.  R.  A.  711, 

further  in  the  right  of  the  public  to  per  Campbell,  J. 

53 


§    17  ENUMERATION   OF   FRANCHISES 

to  the  people  collectively.68    This  right  to  tolls  also  includes 

a  bridge  6J  and  a  ferry.70    And  this  franchise  or  right  to  tolls 

or  fares  applies  to  railroads.71  A  distinction  is  said  to  exist, 

«8  Wright  v.  Nagle,  101  U.  S.  791,  ute    conferring     jurisdiction     upon 

794,  25  L.  ed.  921,  per  Waite,  C.  J.,  county  courts  to   license  ferries,   is 

citing,    Young    v.    Harrison,    6    Ga.  to    secure    the    public    accommoda- 

130.  tion;  the  right  to  take  tolls  is  con- 

60  "  The  authority  of  taking  tolls  ferred  as  an  equivalent  for  the  obli- 

from  those  who    crossed    the    river  gation  to  accommodate  the  traveling 

on  the  bridge  was  also  a  franchise,  public.     Although  the  right  to  take 

a  freedom  to  do   that  which  could  tolls  is  privati  juris  and  incident  to 

not  lawfully  be  done  without  pub-  the    franchise,    a    ferry    is    privati 

lie     authority."     Covington     Draw-  juris  and   cannot  be   created  with- 

bridge   Co.    v.    Shepherd,    21    How.  out  a  license.     Hackett  v.   Wilson, 

(62  U.  S.)   112,   123,   16  L.  ed.  38,  12  Oreg.  25,  6  Pac.  652. 

per  Catron,  J.  Right     to     take    tolls    is     incident 

When   bridge   company   cannot  de-  to   ferry   franchise.     Montgomery   v. 

mand  tolls   for  automobile,   see   Mai-  Multnomah  Ry.  Co.,   11   Oreg.  344, 

lory  v.  Saratoga  Lake  Bridge  Co.,  347,  348,  3  Pac.  435,  quoting  from 

104    N.    Y.    Supp.    1025,    53    Misc.  Attorney  Genl.  v.  Boston,  123  Mass. 

446.  478. 

70 The  right  to  set  up  a  ferry  or  a  71  "  'The    privilege  of   making    a 

road,  and  the  taking  of  tolls  is  "a  road,   or  establishing   a   ferry,    and 

franchise,"  or  the  "right   of   taking  taking    tolls    for    the     use    of    the 

toll  for  a  bridge,  way  or    wharf. "  same,  is  a  franchise.'     Railroads  cer- 

Talcott  v.  Township  of  Pine  Grove,  tainly  do  not  form  an  exception." 

1  Flipp.  (U.  S.  C.  C.)  120,  142,  Fed.  Milhan  v.  Sharp,  27  N.  Y.  611,  619, 

Cas.  No.  13,735,  per  Emmons,  Cir.  J.  84   Am.    Dec.    314,    per   Selden,    J., 

Keeping    a    ferry    over    a    public  quoting  3  Kent's  Comm.  458,  citing 

stream   with   the   right   to   demand  Beekman    v.    Saratoga    &    Schenec- 

tolls    and    ferriage    is    a    franchise,  tady  Rd.  Co.,  3  Paige  Ch.  (N.  Y.)  45. 

Tuckahoe    Canal    Co.    v.    Tuckahoe  See    also    Chesapeake    &    Ohio    Ry. 

Rd.  Co.,  11  Leigh  (Va.),  42,  75,  per  Co.  v.  Miller,  114  U.  S.  176,  185,  29 

Tucker,   P.  L.   ed.    121,    5   Sup.   Ct.   813;   East 

The  right  to  maintain  and  oper-  Tennessee,  Virginia  &  Georgia  Rd. 
ate  a  ferry  and  to  collect  tolls  for  Co.  v.  County  of  Hamblen,  102 
transporting  persons  and  property,  U.  S.  273,  275,  26  L.  ed.  152;  Mor- 
is a  franchise.  Evans  v.  Hughes  gan  v.  State  of  Louisiana,  93  U.  S. 
County,  3  S.  Dak.  580,  581,  54  N.  217,  23  L.  ed.  860;  State  v.  Maine 
W.  603.  Central  Rd.   Co.,  66  Me.   488,   512, 

"The  privilege  of  establishing     a  per     Appleton,    C.     J.;     Baltimore, 

ferry  and  taking   tolls    for   the    use  Chesapeake  &  Atlantic  Ry.   Co.   v. 

of  the  same,  is  a  franchise."     Rohn  Mayor,  etc.,  of  Ocean  City,  89  Md. 

v.  Harris,  130  111.  525,  530,  22  N.  E.  89,  98,  42  Atl.  922;  Shamokin  Valley 

587,  per  Craig,  J.  Rd.  Co.  v.  Livermore,  47  Pa.  465, 

The  primary  object  of  our  stat-  468,  per  Agnew,  J. 

54 


ENUMERATION   OF   FRANCHISES  §    17 

however,  between  tolls  for  the  use  of  a  turnpike  and  the  com- 
pensation charged  by  railroads  for  transportation.72  But 
rates  chargeable  for  the  use  by  others  of  a  railroad  track  as  a 
public  highway  are  of  themselves  alone  in  a  strictly  proper 
sense  called  tolls,  and  a  railroad  company  which  is  also  a 

Privilege  of  making  railroad  and  transportation.  "A  'toll-thorough' 
taking  tolls  thereon  is  a  franchise,  then,  as  understood  at  the  common 
See  Beekman  v.  Saratoga  &  Schenec-  law,  did  include  compensation  for 
tady  Rd.  Co.,  3  Paige  Ch.  (N.  Y.)  45.    something  more  than  the  use  of  a 

The  essential  franchise  of  a  rail-  roadbed  or  a  water-way,  and  did 
road  company  is  the  right  to  operate  include,  when  applied  to  a  proper 
their  road,  and  receive  fare  and  case,  compensation  for  the  means 
freight.  Thorpe  v.  Rutland  &  Bur-  of  locomotion  and  transportation 
lington  Rd.  Co.,  27  Vt.  140,  62  Am.  used  by  the  party  who  claimed  the 
Dec.  625.  right    of    toll     *     *     *     neither   by 

"Now  what  was  the  franchise  in  the  common  law  of  England,  by  its 
this  case,  specified  in  the  mortgage  statutes,  nor  by  customary  usage 
as  '  the  franchise  of  said  company?'  there  or  in  the  United  States,  is  the 
A  recurrence  to  the  grant  (its  charter)  word  '  toll'  limited  to  compensation 
will  show  substantially,  it  was  the  for  the  use  of  a  road,  a  way,  a  mill 
privilege  of  being  a  body  politic  and  or  a  ferry,  where  the  moving  power 
possessing  the  powers  incident  to  comes  from  the  party  using  it;  but, 
such  bodies;  the  privilege  of  taking  on  the  contrary,  that  it  is  and  al- 
lands  of  individuals  in  invitum  for  ways  has  been  applied  to  compensa- 
the  purpose  of  constructing  a  rail-  tion  for  such  use  when  the  thing 
way;  and  the  right  to  construct,  used,  and  the  motive  power  by 
maintain,  and  manage  such  rail-  which  it  was  used,  came  from  the 
way,  and  in  so  doing  levy  and  party  charging  the  toll,  as  well  as 
collect  tolls  upon  and  from  travelers  when  it  came  from  the  party  pay- 
thereon."  Kennebec  &  Portland  ing  it."  Lake  Superior  &  Missis- 
Rd.  Co.  v.  Portland  &  Kennebec  sippi  Rd.  Co.  v.  United  States,  93 
Rd.  Co.,  59  Me.  9,  66,  dissenting  U.  S.  442,  458,  459,  23  L.  ed.  965, 
opinion  of  Tapley,  J.  (a  case  of  mort-    per  Bradley,  J. 

gage  and  foreclosure  of  railroad  72  "The  analogy  is  very  imper- 
franchise,  etc.)  feet  between   the  tolls  exacted   for 

The  word  "toll"  is  properly  used  the  use  of  a  turnpike,  and  the  com- 
to  express  the  charges  made  by  rail-  pensation  charged  by  a  railroad 
road  companies  for  transportation  company  for  the  transportation 
of  persons  and  property  in  the  of  persons  and  property.  The  right 
manner  which  is  now  usual  and  to  exact  the  one,  and  the  earning 
universal.  It  is  also  "a  sum  de-  of  the  other,  involve  very  different 
manded  for  a  passage  through  a  duties  and  responsibilities."  Coe 
highway  or  for  passage  over  a  ferry,  v.  Columbus,  Piqua  and  Indiana 
In  the  latter  case  it  is  not  for  the  Rd.  Co.,  10  Ohio  St.  372,  380,  75 
UBe    of    the    river    but    is    for    the   Am.  Dec.  518,  per  Gholson,  J. 

55 


§    17  ENUMERATION    OF   FRANCHISES 

transportation  company  has  the  twofold  franchise  of  taking 
tolls  and  also  engaging  in  the  business  of  carriers  upon  its 
own  road.73  The  corporate  right  to  build  and  run  a  railroad, 
and  take  tolls,  or  fares,  is  a  franchise  of  the  prerogative  char- 
acter, which  no  person  can  legally  exercise  without  some 
special  grant  of  the  legislature.74  The  right,  however,  to  build, 
own,  manage  and  run  a  railroad,  or  take  the  tolls  thereon,  is 
not  of  necessity  of  a  corporate  character,  or  dependent  upon 
corporate  rights.  It  may  belong  to  and  be  enjoyed  by  natural 
persons.75  The  constitution  of  California  provides  that  the 
right  to  collect  rates  or  compensation  for  the  use  of  water 
by  counties,  etc.,  is  a  franchise.76    And  where  a  statute  grants 

73  Camblos  v.  Philadelphia  &  with  some  franchise  which  involves 
Reading  Rd.  Co.,  4  Brewster  (Pa.),  duties  as  well  as  privileges  of  a  gen- 
563,  596,  597,  per  Cadwalader,  eral  or  public  nature.  The  right 
Dist.  J.,  who  states  the  distinction  to  receive  fixed  tolls  is  found  in 
between  railroad  and  transporta-  fairs,  markets,  mills,  turnpikes, 
tion  companies  after  1829  (case  ferries,  bridges  and  many  other 
was  decided  in  1873),  and  also  con-  classes  of  interests  where  the  owner 
siders  the  distinction  between  tolls  of  the  franchise  is  obliged  to  ac- 
and  charges  for  locomotive  power  commodate  the  public,  and  the  pub- 
and  of  both  of  these  from  charges  of  lie  in  turn  are  protected  from  ex- 
passenger  money  and  freight  money,  tortion  by  an  obligation  to  pay  only 

As  to  meaning  of  "rate"    (in   In-  regular  dues.     The  law  has  in  this 

terstate  Commerce  Act,  Feb.   19th,  State  always  provided  seme  means 

1903,  c.  708,  §1,  32   Stat.  847,  U.  S.  of  fixing  rates  of  ferriage,  and  pas- 

Comp.  Stat.  Supp.  1905,  p.  599)  and  sage    over    turnpikes    and    bridges, 

also  what  constitutes    giving    a    re-  It  has  also  done  the  same  on  street 

bate,     see     United    States    v.    Chi-  and     other      tramroads. "      McKee 

cago  &  A.  Ry.  Co.,  148  Fed.  646.  v.    Grand    Rapids    &    Reeds    Lake 

Where     a     statute     provides     that  St.   Ry.  Co.,  41   Mich.   274,  279,   1 

"rates  of  toll  or  fare"  to  be  charged  N.  W.  873,  per  Campbell,  C.  J. 

by   street   railway   companies    "shall  7*  State    v.    Boston,    Concord    & 

be    established    by    agreement    be-  Montreal  Rd.  Co.,  25  Vt.  433,  442, 

tween  such  company  and  the   cor-  per  Reffield,  Ch.  J. 

porate  authorities  of  the  city,"  etc.,  "Miller  v.   Rutland   &  Washing- 

the  word  "toll"  so  used,   "is  used  ton  Rd.  Co.,  36  Vt.  452,  494,  per 

in  its  established  meaning.     *     *     *  Barrett,  J.,  quoting   from    Bank   of 

The   term   applies   at    common   law  Middlebury  v.  Edgerton,  30  Vt.  190, 

to  a  very  large  class  of  dues  and  ex-  per    Bennett,    J.,    who    cites    Peter 

actions  which  are  in  the   nature   of  v.  Kendall,  6  B.  &  C.  703;  Comyn's 

fixed  rights,   and  which   cannot  be  Dig.,  Grant,  C. 

lawfully  exceeded.     They  are  gener-  76  Fresno  Canal,  etc.,  Co.  v.  Park, 

ally    if     not    universally    connected  129  Cal.  437,  442,  62  Pac.  87. 

56 


ENUMERATION   OF   FRANCHISES  §    17 

a  right  to  collect  tolls  upon  logs  put  into  a  river,  such  a  right 
is  a  franchise.77  So  the  right  of  a  turnpike  company  to  re- 
quire wheelmen  to  pay  tolls,  for  using  its  road  or  sidepath,  is 
a  franchise;78  as  is  also  the  right  to  construct  and  maintain 
a  pier  or  wharf  and  take  wharfage  therefor.79  But  a  pier  as  a 
structure  is  not  a  franchise.     It  is  built  under  the  franchise 

77  Sellers     v.     Union     Lumbering   point  Town  of  Pelham  v.  The  B.  Y. 
Co.,  32  N.  H.  525.  Woolsey,    14    Fed.    418,    423,    per 

78  Rochester    &    Charlotte    Turn-   Brown,  J. 

pike  Road  Co.  v.  Joel,  58  N.  Y.  See  Sullivan  v.  Lear,  23  Fla.  463, 
Supp.  346,  41  App.  Div.  43.  Adams,  2  So.  846,  11  Am.  St.  Rep.  388.  The 
J.,  said:  "The  plaintiff  when  it  per-  case,  however,  is  merely  one  as  to 
fected  its  organization  under  the  assignment  of  franchise  and  evi- 
provisions  of  the  general  turnpike  dence  of  value  of  franchise  granted 
law,  acquired  a  valuable  franchise,  to  build  and  operate  a  wharf,  con- 
in  virtue  of  which  it  was  not  only  ceding,  apparently,  that  such  wharf 
enabled  to  construct  its  road,  but  is  a  franchise  in  connection  with  its 
also  to  derive  such  profit  and  ad-  use. 

vantage  therefrom  as  might  be  gained        Wharfage      defined      and      distin- 

from  the  patronage  of  the  traveling  guished;    see    the    following    cases: 

public."  Ouachita  Packet  Co.  v.  Aiken,   121 

79  "The  right  to  collect  wharfage  U.  S.  444,  449,  7  Sup.  Ct.  907,  30 
rests  upon  the  statute;  it  is  a  fran-  L.  ed.  976,  per  Bradley,  J.  (a  charge 
chise  dependent  upon  a  grant  from  for  rent  for  temporary  use  of  wharf); 
the  sovereign  power.  In  Walsh  v.  Transportation  Company  v.  Parkers- 
New  York  Floating  Dry  Dock  Co.,  burg,  107  U.  S.  691,  696-699,  27 
77  N.  Y.  448,  452,  this  court  said,  L.  ed.  584,  2  Sup.  Ct.  732,  per  Brad- 
Judge  Andrews  writing  the  opinion,  ley,  J.  (wharfage  and  tonnage  de- 
'  The  right  to  collect  wharfage  is  a  fined  and  distinguished);  The  Idle- 
franchise  and  depends  upon  a  grant  wild,  64  Fed.  603,  605,  12  C.  C.  A. 
by  the  sovereign  power  [Wiswall  v.  198,  per  Shipman,  Cir.  J.,  (a  pecuni- 
Hall,  3  Paige  (N.  Y.),  313;  Houck  ary  charge  in  the  nature  of  rent  to 
on  Rivers,  §§  283,  284].  It  is  given  which  vessels  are  liable  for  use  of 
as  a  compensation  to  persons  who,  dock  or  wharf);  People  v.  Roberts, 
under  authority  of  law,  have  con-  92  Cal.  659,  28  Pac.  689,  (wharfage 
structed  piers  and  wharfs,  and  to  and  dockage  defined  and  distin- 
remunerate  them  for  the  outlay  guished);  Sacramento  v.  The  New 
made  for  the  convenience  and  safety  World,  4  Cal.  41,  44,  per  Heyden- 
of  vessels  and  the  benefit  conferred  feldt,  J.;  Sweeney  v.  Otis,  37  La. 
thereby  upon  commerce  and  navi-  Ann.  520,  521  (defined  and  (le- 
gation."  Flandreau  v.  Elsworth,  tinguished  from  taxes,  duty  of  ton- 
151  N.  Y.  473,  477,  45  N.  E.  853,  nage,  tolls,  imposts,  etc.);  Kusen- 
per  Bartlett,  J.  Case  affirms  29  berg  v.  Browne,  42  Pa.  173,  179, 
N.  Y.  Supp.  694,  60  N.  Y.  St.  R.  per  Read,  J. 

609,  9  Misc.  340.     See  also  to  same 

57 


§    18  ENUMERATION   OF   FRANCHISES 

which  consists  of  the  right  to  construct  and  maintain  the  pier 
and  to  take  wharfage  for  its  use.80  Again,  where  a  lock  and 
dam  of  a  navigation  company  are  condemned  under  an  act 
of  Congress,  the  corporation  is  entitled  to  recover  compensa- 
tion from  the  United  States  for  the  taking  of  the  franchise 
to  exact  tolls,  and  the  assertion  by  Congress  of  its  purpose  to 
take  the  property  does  not  destroy  the  state  franchise.81 

§  18.  Banking — Insurance. — The  charter  of  a  bank  is  de- 
clared to  be  a  franchise.82  So  in  an  early  case  in  Alabama  it 
is  said,  that  since  the  adoption  of  the  constitution  in  that  State, 
the  right  to  exercise  banking  powers  constitutes  a  franchise.83 

80  Smith  v.  Mayor,  etc.,  of  New  Thompson,  chief  justice  of  the  Su- 
York,  68  N.  Y.  552,  555,  per  Earl,  preme  Court  of  New  York,  in  the 
J.  same  opinion  referred  to  by  the  de- 

81  Monongahela  Navigation  Co.  v.  fendant's  counsel  to  maintain  an- 
United  States,  148  U.  S.  312,  37  L.  other  principle,  deemed  material  to 
ed.  463,  13  Sup.  Ct.  622.  the    defense.     The    latter    principle 

82  Gordon  v.  Appeal  Tax  Court,  alluded  to  is,  '  that  the  right  of  bank- 
3  How.  (44  U.  S.)  133,  150,  11  L.  ed.  ing  was  a  common  law  right,  be- 
529,  per  Wayne,  J.  longing   to    individuals,    and    to    be 

83  State  v.  Stebbins,  1  Stew.  (Ala.)  exercised  at  their  pleasure.'  Such 
299.  The  court  said  in  that  case  is  the  language  of  the  chief  justice, 
that:  "The  object  and  necessity  and  is  a  doctrine  which  this  court 
at  all  times  and  in  every  country  has  no  disposition  to  disturb  or  ques- 
of  incorporating  companies  has  tion,  but  the  deductions  proper  to 
been  to  give  them  perpetuity  and  be  drawn  from  it,  are  worthy  of  con- 
legal  authority  to  exercise  specific  sideration.  Does  it  follow  that 
powers  and  privileges  of  a  nature  corporations  can  claim  all  rights, 
promising  some  degree  of  public  privileges  and  immunities,  which 
utility,  and  to  which  individuals  in  the  law  has  not  denied  to  individuals? 
their  natural  capacity,  are  supposed  Or  if  they  can,  must  they  not  de- 
incompetent;  or  such  as  are  of  a  na-  rive  such  rights  from  the  principles 
ture  so  far  involving  the  general  in-  of  the  common  law  and  general 
terest  of  society,  that  public  policy  legislation?  If  the  first  branch  of 
forbids  the  unrestrained  pursuit  of  the  proposition  is  assumed,  the  con- 
them  by  individuals.  The  doctrine  sequence  would  be,  that  corpor- 
has  universally  prevailed,  that  a  ations,  instead  of  being  limited  to 
corporation  can  only  exercise  such  the  powers  granted  them,  can  claim 
powers  as  are  specially  granted  by  irrevocably,  all  powers  not  expressly 
the  'act  of  incorporation.'  or  are  denied  them.  If  the  latter,  the 
necessary  to  carry  into  effect  the  necessary  consequence  must  be 
powers  expressly  granted.  This  that  the  rights  and  powers  of  cor- 
principle    is    clearly   maintained   by  porations,  like  those  of  individuals, 

58 


ENUMERATION   OF   FRANCHISES  §    18 

But  at  common  law  the  business  of  banking,  in  all  its  branches, 
was  open  and  free  to  all  and  belonged  to  the  citizens  of  the 
country  generally  by  common  right.  It  did  not  constitute 
one  of  the  prerogatives  of  the  sovereign,  or  pertain  to  sover- 
eignty. The  only  banking  privilege  in  this  country  that  is 
made  a  franchise  is  the  privilege  of  issuing  bank  notes  intended 
to  circulate  as  money,  which,  since  the  adoption  of  the  con- 
stitution of  the  United  States,  has  existed  in  the  National 
government,  and,  when  not  exercised  by  that  government, 
could  be  exercised  by  the  several  States.  The  business  of 
banking  "by  discounting  and  negotiating  promissory  notes, 
bills  of  exchange,  drafts,  and  other  evidences  of  debt,  by  re- 
are  general  and  insecure,  dependent  writing  for  him  makes  it  himself; 
on  such  restraints  and  modifications  but  with  these  bodies,  which  have 
as  the  legislature  may  think  proper  only  a  legal  existence,  it  is  other- 
to  prescribe.  That  corporations  wise.  The  act  of  incorporation  is 
have  only  legal,  invisible,  intangi-  to  them  an  enabling  act.  It  gives 
ble  existence,  with  powers  specially  them  all  the  power  they  possess.  It 
granted  and  circumscribed,  within  enables  them  to  contract,  and  when 
limits  necessary  to  the  objects  of  it  prescribes  to  them  a  mode  of  con- 
their  creation,  is  one  of  the  promi-  tracting,  they  must  observe  that 
nent  principles  of  elementary  law.  mode,  or  the  instrument  no  more 
In  the  case  of  the  Bank  of  the  United  creates  a  contract  than  if  the  body 
States  against  Dandridge,  12  Wheat,  had  never  been  incorporated.  In 
91,  Chief  Justice  Marshall,  in  a  dis-  the  case  of  the  New  York  Firemen's 
senting  opinion,  but  on  points  on  Insurance  Company  against  Sturgis, 
which  he  was  not  opposed,  says  'a  2  Cowen's  R.  664,  it  was  ruled  that 
corporation  being  one  entire  imper-  'a  corporation,  having  no  power  by 
sonal  entity,  distinct  from  the  indi-  the  act  of  incorporation  to  discount 
viduals  who  compose  it,  must  be  notes,  but  created  for  the  purposes 
endowed  with  a  mode  of  action  pe-  of  insurance,  has  no  right  to  carry 
culiar  to  itself,  which  will  always  on  the  business  of  discounting;  that 
distinguish  its  transactions  from  a  corporation  has  no  powers  except 
those  of  its  members.'  This  faculty  such  as  are  specially  granted,  and 
must  be  exercised  according  to  its  those  that  are  necessary  to  carry 
own  nature.  In  the  case  of  Head  into  effect  the  powers  so  granted.' 
and  Amory  against  the  Providence  The  authorities  referred  to,  show 
Insurance  Company,  2  Cranch,  127,  conclusively  to  my  mind,  that  no 
the  Supreme  Court  said,'  an  indi-  corporation  can  legally  exercise 
vidual  has  an  original  capacity  to  banking  privileges,  unless  the  power 
contract  and  bind  himself  in  such  be  specially  granted."  State  v. 
manner  as  he  pleases.  He  who  acts  Stebbins,  1  Stew.  (Ala.)  299,  306- 
by  another,  acts  by  himself.'  He  308,  per  Saffold,  J. 
who  authorizes  another  to  make     a 

59 


§   19  ENUMERATION   OF   FRANCHISES 

ceiving  deposits,  by  buying  and  selling  exchange,  coin  and 
bullion,  and  by  loaning  money  on  personal  security,"  was  not 
a  franchise  at  common  law,  and  has  not  been  made  such  by 
the  state  or  National  constitutions.84  So  it  is  said  in  a  New 
York  case  that:  "Banking  is  not  in  its  nature  a  corporate 
franchise.  In  the  absence  of  legislative  restraints,  it  may  be 
carried  on  by  individuals  and  partnerships  in  all  its  depart- 
ments of  issuing,  lending,  receiving  deposits,  discounting,  deal- 
ing in  exchange,  bullion,  etc.85  The  State  has,  however,  the 
power  to  regulate  and  restrain  the  right  of  conducting  a  bank- 
ing business,  even  though  it  may,  under  the  common  law,  be 
exercised  at  pleasure  by  a  citizen.86  It  has  also  been  held  re- 
peatedly that  the  State  has  the  right  to  regard  the  business  of 
insurance  as  one  dependent  upon  the  exercise  of  a  franchise, 
which  the  State  has  the  right  to  give  and  to  withhold.  This 
franchise  right  has  grown  up  from  a  small  beginning  from 
necessity,  but  is  not  a  departure  from  the  general  rule  charac- 
terizing the  meaning  of  the  term  "franchise."  It  is  simply  a 
modern  application  of  the  principle  governing  such  privileges, 
applied  to  new  emergencies.87 

§  19.  Eminent  Domain. — A  railroad  corporation  under 
the  constitution  and  laws  of  the  State  of  Illinois  possesses 
not  only  the  franchise  of  the  right  to  exist  as  a  corporation, 
but  the  right  to  condemn  private  property  for  corporate  use 
is  also  one  of  its  most  important  franchises,  since  the  right  of 
eminent  domain  is  a  franchise.88    In  a  Pennsylvania  case  it  is 

84  State  v.  Scougal,  3  S.  Dak.  55,  Ohio  St.  603,  619,  where  Corwin,  J., 
15  L.  R.  A.  477,  44  Am.  St.  Rep.  speaks  of  a  railroad  or  a  turnpike 
756  (decided  1892).  being    made,  "In  virtue  of    a  fran- 

85  Curtis  v.  Leavitt,  15  N.  Y.  9,  chise  of  eminent  domain."  The 
52,  per  Comstock,  J.  same   court    (at  pp.    615,  616)  also 

88  State  v.  Richcreek,  167  Ind.  217,  says:    "Any   citizen    may   construct 

77  N.  E.  1085.  a  railroad  upon  his  own  land,  but  no 

87  People  v.  Loew,  44  N.  Y.  Supp.  citizen  can  construct  a  railroad  upon 
43,  26  Civ.  Proc.  132,  19  Misc.  248.  the    land   of   another   without   that 

88  Chicago  &  "Western  Indiana  other's  consent,  unless  authorized 
Rd.  Co.  v.  Dunbar,  95  111.  571,  576.  to  do  so  by  law.  The  right  to 
See  also  Knoup  v.  Piqua  Bank,   1  construct    a    road    over    the    lands 

60 


ENUMERATION   OF   FRANCHISES  §   20 

said  that  the  ordinary  franchise  of  a  railroad  company  is,  by 
virtue  of  the  sovereign  power  of  eminent  domain,  to  condemn, 
take  and  use  lands  for  the  purpose  of  a  public  highway,  and 
to  take  tolls  from  those  who  use  it  as  such.8J  So  it  is  declared 
in  a  Texas  decision  that  the  ordinary  franchises  of  a  railroad 
corporation  are  the  right  to  exist  and  to  transact  business  as 
a  corporation,  and  the  right  to  condemn  property  for  its  use.90 
It  is  also  said  that  exclusive  grants  for  ferries,  bridges  and 
turnpikes  are  grants  of  franchises  of  a  public  character  ap- 
pertaining to  the  government,  and  that  their  use  usually 
requires  the  exercise  of  the  right  of  eminent  domain.91 

§  20.  Exemption  or  Immunity  from  Taxation,  Jury  Duty, 
and  Working  on  Public  Roads.— In  a  case  in  the  United 
States  Supreme  Court,  decided  in  1876,  it  was  held  that  im- 
munity from  taxation  is  not  itself  a  franchise  of  a  railroad 
corporation  which  passes  as  such  without  other  description 

of    private    citizens,    without    their  1050,   per  Gaines,  C.   J.  (a  case  of 

consent,  is  a  sovereign  right;   it  is  railway  franchise  taxation), 

the    right,    so    called,    of    eminent  91  Slaughter-House  Cases,  16  Wall, 

domain.      Whenever    that    right    is  (83  U.  S.)  36,  88,  21  L.  ed.  394,  per 

delegated  to  a  corporation  or  an  in-  Field,  J.,  in  dissenting  opinion, 

dividual,  by  an  act  of  the  general  See  the  following  cases  as  to  the 

assembly,   the   corporation   or  indi-  right  of  corporations  to  exercise  the 

vidual    has    a    franchise    of   eminent  power  of  eminent  domain: 

domain.     In  England,  also,  a  fran-  United    States:    Miocene    Ditch 

chise  may  become  the  property  of  Co.  v.  Jacobsen,   146  Fed.   680,  77 

a     corporation     or     an     individual.  C.  C.  A.  106. 

*     *     *     Whenever,      therefore,     a  California:  Boca  &  Loyalton  Rd. 

franchise  is  conferred,  upon  a  cor-  Co.  v.  Sierra  Valleys  Rd.  Co.,  2  Cal. 

poration,  or  an  individual,   nothing  Ct.  App.  546,  84  Pac.  298. 

but  the  public  good  is  to  be  con-  Idaho:    Potlach    Lumber   Co.    v. 

sidered;  the  private  advantage  which  Peterson,  12  Ida.  769,  88  Pac.  426. 

may    result    to    the    corporation    or  Montana:  State  v.  District  Court 

individual,   is  but  incidental  to  the  of    Tenth    Jud.     Dist.    of    Meagher 

chief  object  and  cannot  ripen  into  County,  34  Mont.  535,  88  Pac.  44. 

a  right  of  property."  New     York:     Pocantico    Water- 

89  Shamokin    Valley    Rd.    Co.    v.  works  Co.  v.  Bird,  130  N.  Y.  249,  41 

Livermore,  47  Pa.  465,  468,  68  Am.  N.  Y.  St.  R.  315,  29  N.  E.  246;  East 

Dec.  552,  per  Agnew,  J.  Canada  Creek  Elect.  Light  &  Power 

"State  v.  Austin  &  Northwestern  Co.,  In  re,  99    N.  Y.  Supp.  109,  49 

Rd.  Co.,  94  Tex.  530,  532,  62  S.  W.  Misc.  565. 

61 


§   20  ENUMERATION   OF   FRANCHISES 

to  a  purchaser  of  its  property.92  In  this  case  the  court,  per 
Field,  J.,  says:  "Much  confusion  of  thought  has  arisen  in  this 
case  and  in  similar  cases,  from  attaching  a  vague  and  un- 
defined meaning  to  the  term  'franchise.'  It  is  often  used  as 
synonymous  with  rights,  privileges  and  immunities,  though 
of  a  personal  and  temporary  character;  so  that,  if  any  one  of 
these  exists,  it  is  loosely  termed  a  'franchise,'  and  is  supposed 
to  pass  upon  a  transfer  of  the  franchise  of  the  company.    But 

Pennsylvania:    Towanda    Bridge  Maryland:      Baltimore,     Chesa- 

Co.,  In  re,  91  Pa.  216.  peake  &  Atlantic  Ry.  Co.  v.  Ocean 

Washington:  State   ex  rel.  Har-  City,  89  Md.  89,  42  Atl.  922,  14  Am. 

Ian,  Centralia-Chehalis  Elect.  Ry.  &  &  Eng.  Rd.  Cas.   (N.  S.)  195   (does 

Power  Co.,  42  Wash.  633,  85  Pac.  not  pass  to  purchaser  without  express 

344.  statutory  direction).     But  see  Balti- 

92  Morgan  v.  Louisiana,  93    U.  S.  more,    Chesapeake    &   Atlantic    Ry. 

217,  23  L.  ed.  860.  Co.  v.  Wicomico    County  Commrs., 

That  exemption  or  immunity  from  103  Md.  277,  63  Atl.  678. 

taxation  is  not  such  a  franchise  as  Missouri:    State    ex    rel.    Crum- 

can  be  transferred,  assigned,  or  will  packer    v.    Chicago,    Burlington    & 

pass  to  a  purchaser,  see  the  follow-  Kansas  City  Ry.  Co.,  89  Mo.   523, 

ing  cases:  14  S.  W.  522   (not  transferrable  in 

United  States:    Mercantile  Bank  absence    of    express    statutory    au- 

v.  Tennessee,  161  U.  S.  161,  40  L.  ed.  thority). 

656,  16  Sup.  Ct.  466;  Pickard  v.  East  Tennessee:    Wilson  v.  Gaines,  9 

Tennessee,   Virginia  &  Georgia  Rd.  Baxt.  (68  Tenn.)  546,  552. 

Co.,  130  U.  S.  637,  32  L.  ed.  1051,  Virginia:    Examine    Seaboard    & 

9  Sup.  Ct.  640,  6  Rd.  &  Corp.  L.  J.  R.  R.  Co.  v.  Norfolk  County,  83  Va. 

130;   Memphis   &   Little   Rock   Rd.  195,  2  S.  E.   278.     See  also  subse- 

Co.  v.  Railroad  Commissioners,  112  quent    sections    herein    upon    tax- 

U.  S.  609,  28  L.  ed.  837,  5  Sup.  Ct.  ation. 

899;  Wilson  v.  Gaines,  103  U.  S.  That  such  exemption  is  not  such 
417,  421,  26  L.  ed.  401;  East  Tennes-  a  franchise  as  passes  on  consolida- 
see,  Virginia  &  Georgia  Rd.  Co.  v.  tion  see:  Keokuk  &  Western  Rd. 
County  of  Hamblen,  102  U.  S.  273,  Co.  v.  Missouri,  152  U.  S.  301;  Adams 
277,  26  L.  ed.  121,  152.  Examine  v.  Yazoo  &  Mississippi  Valley  R.  Co., 
Rochester  Ry.  Co.  v.  City  of  Roches-  77  Miss.  194,  24  So.  200,  317,  1 
ter,  205  U.  S.  236,  254,  255,  per  Miss.  Dec.  (No.  30),  296.  Ex- 
Moody,  J.;  Savannah  v.  Jesup,  106  amine  Tennessee  v.  Whitworth,  117 
TJ.  S.  563,  565-570,  27  L.  ed.  276,  U.  S.  129,  29  L.  ed.  830,  6  Sup.  Ct. 
1  Sup.  Ct  512.  645;    State    v.    Maine    Central    Rd. 

Kentucky:  Evansville,  Hender-  Co.,  66  Me.  488.  Examine  Roches- 
son  &  Nashville  Rd.  Co.  v.  Com-  ter  Ry.  Co.  v.  Rochester,  205  U.  S. 
monwealth,  9  Bush  (Ky.),  438,  443.  236,  247,  27  Sup.  Ct.  — ,  51  L.  ed. 

Louisiana:    State    v.  Morgan,  28  784. 
La.  Ann.  482. 

62 


ENUMERATION   OF   FRANCHISES  §   20 

the  term  must  always  be  considered  in  connection  with  the 
corporation  or  property  to  which  it  is  alleged  to  appertain." 
The  court  then  specifies  certain  franchises  which  belong  to  a 
railroad  company  and  concludes  with  the  words:  "Immunity 
from  taxation  is  not  one  of  them.  The  former  may  be  con- 
veyed as  a  part  of  the  property  of  the  company;  the  latter  is 
personal  and  incapable  of  transfer  without  express  statutory 
direction."  The  above  quotation  has  been  given  and  relied 
upon  in  several  cases,93  and  in  another  Federal  case  which 
was  decided  in  1884,  and  which  also  gives  the  above  quota- 
tion, it  is  declared,  as  affirming  the  1876  case,  that  immunity 
from  taxation  conferred  on  a  corporation  by  legislation  was 
not  a  franchise,  although  in  the  1884  case  the  principal  point 
determined  was  that  immunity  from  taxation  did  not  pass 
by  a  transfer  of  the  corporate  property,94  and  it  has,  therefore, 
been  frequently  declared  that  immunity  from  taxation  is  not 
a  franchise.  But  the  same  court  decided  in  1885,  that  an 
exemption  from  taxation  granted  by  the  government  to  an 
individual  is  a  franchise,  which  can  be  lost  by  acquiescence 
under  the  imposition  of  taxes  for  a  period  long  enough  to 
raise  a  conclusive  presumption  of  a  surrender  of  the  privilege; 
and  that  such  acquiescence  for  a  period  of  sixty  years,  or  even 
for  a  much  shorter  period,  raises  such  a  presumption.95  In 
another  case  the  court  in  discussing  the  meaning  of  the  word 

"  United  States:  East  Tennessee,  Co.,  30  Tex.  Civ.  App.  474,  481,  482, 
Virginia    &    Georgia    Rd.     Co.     v.  72  S.  W.  201,  in  dissenting  opinion, 
County  of  Hamblen,  102  U.  S.  275,  Bookhout,  Assoc.  J. 
277,  26  L.  ed.  121,  152.  9i  Chesapeake  &  Ohio  Rd.  Co.  v. 
Maine:    State   v.   Maine   Central  Miller,  114  U.  S.  176,  185,  186,  29 
Rd.  Co.,  66  Me.  488.  512,  per  Apple-  L.  ed.  121,  5  Sup.  Ct.  813. 
ton,  C.  J.  95  Given  v.  Wright,  117  U.  S.  648, 
Maryland:      Baltimore,      Chesa-  29  L.  ed.  1021,  6  Sup.  Ct.  907.     Ex- 
peake  &  Atlantic  Ry.  Co.  v.  Mayor,  emption  from  taxation  is  declared  to 
etc.,  of  Ocean  City,  89  Md.  89,  98,  be    "a    franchise    property."     State 
42  Atl.  922.  v.   Morgan,   28  La.   Ann.  482,  493, 
Nebraska:     Western    Union    Tel.  per   Ludeling,    C.    J.,    in    dissenting 
Co.,  v.  City  of  Omaha  (Neb.,  1905),  opinion    (a  case  of   exemption  from 
103  N.  W.  84,  86.  taxation,  right  of  transfer  and  con- 
Texas:   Denison  &  Sherman    Ry.  st ruction  of  charter). 
Co.   v.   St.   Louis  Southwestern   Ry. 

63 


§   21  ENUMERATION   OF   FRANCHISES 

"franchise"  considers  it  in  its  broad  sense  and  its  legal  mean- 
ings, and  continuing  says:  "It  is  true  that  it  is  now  generally- 
used  in  more  restricted  senses,  and  for  that  reason  the  Su- 
preme Court  of  the  United  States  has  held  in  a  number  of 
cases  that,  because  of  the  reasons  for  adopting  a  strict  con- 
struction of  language  claimed  to  create  or  transfer  exemptions 
from  taxation,  and  a  presumption  against  an  intent  to  do 
either,  a  reference  to  the  'franchises'  of  a  corporation  would 
not  include  its  immunities,  in  the  absence  of  other  language  or 
circumstances  indicating  that  the  term  was  used  with  a  signifi- 
cation wide  enough  to  include  them."  96  An  exemption  from 
jury  duty  and  from  working  on  public  roads  granted  in  the 
charter  of  a  railroad  company  to  its  officers,  agents  and  serv- 
ants, is  not  a  grant  of  a  mere  personal  privilege,  but  is  a  grant 
of  a  valuable  right  or  privilege  upon  the  company  based  upon 
considerations  of  public  policy.97 

§  21.  Political  Rights,  "  Elective  Suffrage,"  "  Elective 
Franchise  "  or  Freedom — Public  Office — Attorney  or  Coun- 
sellor— Right  to  Preside — Appointment  of  Professors — 
Liquor  License — "  Commodities  " — Fishery — Public  Market 
— Patent  Right — Trade-mark — "  News  Contract." — Various 
other  franchises  exist,  such  as  the  political  rights  of  citizens 
and  subjects,  the  " elective  suffrage,"  or  the  "elective  fran- 
chise," which  is  not  a  natural  but  a  permissive  right,  dependent 
for  its  exercise  upon  the  law  conferring  it.98    It  is  also  said  that 

98  Buchanan  v.  Knoxville  &  Ohio  per    Perley,    C.    J.;    People    ex    rel. 

Rd.  Co.,  71  Fed.  324,  334,  18  C.  C.  A.  Koerner  v.  Ridgley,  21  II!.  65,  69, 

122,  per  Severens,  Dist.  J.  per  Breese,  J. 

97  Johnson  v.  State,  88  Ala.  176,  7  See  also  the  following  cases: 

So.  253  (followed  in  Zimmer  v.  State,  United  States:  Corfield  v.  Coryell, 

30  Ark.  677,  which  also  holds  that  4  Wash.  (U.  S.  C.  C.)  371,  Fed.  Cas. 

another  company  consolidated  with  No.  3,230,  where   Washington,    Cir. 

it   succeeds   to    such    right,    where  J.,    in   discussing  the   points   as   to 

the   consolidation   is   authorized   by  "privileges  and  immunities  of  citi- 

the  State).     As  to  exemption  being  zens   of   the   several  States"   under 

unconstitutional  and  class  legislation,  the  constitution  mentions  as  funda- 

see  Neely  v.  State,  4  Lea  (72  Tenn.),  mental,    "the  elective   franchise,  as 

316.  regulated    and    established    by    the 

88  Pierce  v.  Emery,  32  N.  H.  507,  laws  or  constitution  of  the  State  in 

64 


ENUMERATION   OF   FRANCHISES 


§  21 


each  individual  of  a  corporation  has  "a  franchise  or  freedom."  9a 
A  public  office  is  declared  to  be  of  the  nature  of  a  franchise  in 


which  it  is  to  be  exercised."  The 
case,  however,  was  one  as  to  regu- 
lation of  fisheries  and  constitutional 
law. 

Delaware:  Frieszleben  v.  Shall- 
cross,  9  Houst.  (Del.)  1,  59,  8  L.  R. 
A.  337,  19  Atl.  576  (a  case  where 
the  constitution  required  every  elec- 
tor to  pay  a  county  tax  before  elec- 
tion; a  statute  requiring  the  pay- 
ment of  poll  taxes  and  dropping 
delinquents  from  assessment  list;  said 
legislation  being  held  not  to  dis- 
franchise a  voter).  "It  is  conceded 
that  the  power  to  use  the  ballot,  is 
one  derived  from  the  government,  or 
the  political  society  in  which  the 
elector  resides." 

District  of  Columbia:  Spencer  v. 


Board  of  Registration,  1  McArthur 
(D.  C),  169,  29  Am.  Rep.  582. 
Holding  that  elective  franchise  uni- 
formly rests  upon  the  express  au- 
thority of  the  political  power  and 
revolves  within  the  limitations  of 
express  law  and  includes  only  male 
citizens  in  the  district. 

Indiana:  Gougar  v.  Timberlake, 
148  Ind.  38,  46  N.  E.  339,  37  L.  R. 
A.  644,  62  Am.  St.  Rep.  487  (where 
the  nature  of  suffrage,  considered 
as  a  political  privilege  and  not  a 
natural  right,  is  discussed,  as  well 
as  the  question  of  woman  suffrage 
and  constitutional  law);  Morris  v. 
Powell,  125  Ind.  281,  292,  9  L.  R.  A. 
326,  25  N.  E.  221  [where  regula- 
tions  of  the   elective   franchise   are 


M  Dartmouth  College  v.  Wood- 
ward, 4  Wheat.  (17  U.  S.)  518,  657, 
4  L.  ed.  629.  See  also  same  case 
Id.,  700,  where  Story,  J.  (citing 
Ashby  v.  White,  2  Ld.  Raym.  938,  1 
Kyd.  on  Corp.  16),  says:  "The  cor- 
porators are  not  mere  agents,  but 
have  vested  rights  in  their  character 
as  corporators.  The  right  to  be  a 
freeman  of  a  corporation  is  a  valu- 
able temporal  right.  It  is  a  right  of 
voting  and  acting  in  the  corporate 
concerns,  which  the  law  recognizes 
and  enforces,  and  for  a  violation  of 
which  it  provides  a  remedy.  It  is 
founded  on  the  same  basis  as  the 
right  of  voting  in  public  elections; 
it  is  as  sacred  a  right;  and  whatever 
might  have  been  the  prevalence  of 
former  doubts  since  the  time  of  Lord 
Holt,  such  a  right  has  always  been 
deemed  a  valuable  franchise  or  privi- 
lege." 

In    the  case  of  Ashby  v.   White, 
2  Ld.   Raymond,   938,   6   Mod.   45, 


above  cited,  it  was  declared  by  Chief 
Justice  Holt  (p.  951)  that  the  right 
of  sending  members  to  Parliament 
must  be  granted  to  a  corporation 
"and  when  ihis  right  of  election  is 
granted  within  time  of  memory  it  is 
a  franchise,  that  can  be  given  only  to 
a  corporation."  And  it  was  held 
that  a  man  who  has  the  right  to  vote 
at  an  election  for  members  of  Parlia- 
ment could  maintain  an  action 
against  the  returning  officer  for  re- 
fusing to  admit  his  vote.  See  3  Ld. 
Raymond,   320. 

Franchise  also  means  the  locality 
subject  to  a  franchise.  Rapalje  & 
Lawrence's  L.  Diet. 

That  the  word  "franchise"  under 
the  English  Stat.  9  Anne,  c.  20  re- 
fers only  to  the  franchise  of  being  a 
freeman  of  a  municipality,  6ee 
Union  Water  Co.  v.  Kean,  52  N.  J. 
Eq.  Ill,  128,  27  Atl.  1015,  per  Pit- 
ney, V.  C,  citing  High,  Extr.  Rem. 
§  602,  Rex  v.  Williams,  1  Burr.  402. 

65 


§  21 


ENUMERATION   OF   FRANCHISES 


that  it  can  only  be  derived  from  the  sovereign.1     And  a  board 
of  inspectors  being  general  officers  of  the  State,  the  power  to 

considered,  quoting  Cooley's   Const.         Maryland:    Anderson    v.    Baker, 
Lim.  (5tL  ed.)  p.  758].  23  Md.  531.     The  regulation  of  the 


1  Ex  parte  Henshaw,  73  Cal.  486, 
492,  15  Pac.  110,  per  McKinstry, 
J.  (§  802  of  the  Code  of  Civ.  Proc. 
provides  for  an  action  against  one 
who  unlawfully  exercises  any  public 
office  "or  any  franchise"). 

A  franchise  "is  said  to  be  a  privi- 
lege conferred  by  grant  from  the 
government  and  vested  in  indi- 
viduals as  a  public  office. "  People 
ex  rel  Koerner  v.  Ridgeley,  21  111. 
65,  69,  per  Breese,  J. 

"  Lexicographers  generally  define 
'office'  to  mean  'public  employment '; 
and  I  apprehend  its  legal  meaning  to 
be  an  employment  on  behalf  of  the 
government,  in  any  station  or  public 
trust,  not  merely  transient,  occa- 
sional or  incidental.  In  common 
parlance,  the  term  'office'  has  a  more 
general  signification.  Thus  we  say 
the  office  of  executor,  or  guardian, 
or  the  office  of  a  friend."  Matter 
of  Oaths  by  Attorneys  &  Counsel- 
lors, 20  Johns.  (N.  Y.)  491,  493. 

"An  office  like  a  franchise,  is  a 
royal  gift,  it  is  considered  property 
in  England.  Some  offices  are  estates 
in  fee  simple,  or  fee  tail,  some,  estates 
for  life,  and  some  only  estates  at  will. 
Cruise's  Digest,  volume  3,  title  25. 
There  are  some  offices,  also,  which 
are  said  to  be  estates  for  a  term  of 
years,  or  for  one  year.  And  minis- 
terial offices  may  be  granted  in  re- 
version, or  to  commence  at  a  future 
period.  Some  offices  are  even  as- 
signable by  deed.  But  in  America, 
a  public  officer  is  only  a  public  agent 
or  trustee,  and  has  no  proprietor- 
ship, or  right  of  property  in  his  office. 
It  is  true  that  in  The  State  v.  Mc- 

66 


Collister,  11  Ohio  Rep.  50,  Judge 
Hitchcock  said,  that  an  officer,  had 
'  a  vested  right '  in  his  office,  but  that 
dictum  is  opposed  to  many  and  well- 
considered  authorities.  Butler  v. 
The  State  of  Pennsylvania,  10  How- 
ard's Rep.  402;  The  State  v.  Dens, 
R.  M.  Charleton's  R.  (Ga.)  397;  The 
Commonwealth  v.  Bacon,  C.  S.  & 
Rawle,  322;  The  Commonwealth  v. 
Mawe,  5  Watts  &  S.  (Pa.)  418;  The 
Commonwealth  v.  Clark,  7  Watts 
&  S.  (Pa.)  127;  Barker  v.  The  City 
of  Pittsburg,  4  Penn.  St.  Rep.  51;" 
Ivnoup  v.  The  Piqua  Bank,  1  Ohio 
St.  603,  616,  per  Corwin,  J. 

A  statute  providing  that  "in  case 
any  person  or  persons  shall  usurp, 
intrude  into  or  unlawfully  hold  or 
exercise  any  office  or  franchise  within 
this  State,  it  shall  and  may  be  law- 
ful to  and  for  the  attorney  general," 
etc.,  is  substantially  a  copy  of  the 
English  Act,  9  Anne,  20,  and  the 
word  "franchise"  in  the  latter  statute 
"  has  always  been  construed  in  the 
English  courts  to  refer  to  the  fran- 
chise of  being  a  freeman  of  a  munici- 
pality and  no  more."  High,  Extr. 
Rem.  §  602;  Rex.  v.  Williams,  1 
Burr.  402,  and  the  remedy  of  quo 
warranto,  under  that  act,  is  there 
confined  to  municipal  or  public  or 
quasi  public  corporations.  High, 
Extr.  Rem.  §  626,  Short,  Inf.  129. 
Its  application  to  offices  in  private 
corporations  had  its  origin  in  this 
country. "  Union  Water  Co.  v. 
Kean,  52  N.  J.  Eq.  Ill,  128,  27  Atl. 
1015,  per  Pitney,  V.  C;  the  change 
being  from  "said"  in  the  English 
act  to  "any"  office  or  franchise. 


ENUMERATION*    OF    FRANCHISES 


§21 


appoint  them  is  a  franchise.2    But  a  franchise  is  not  conferred 
upon  the  president  of  a  county  board  by  a  constitutional 


elective  franchise  is  an  unqualified 
right  of  the  States;  citizenship  and 
right  of  suffrage  are  not  inseparable, 
as  latter  is  not  one  of  the  universal, 
inalienable  rights;  suffrage  is  not  a 
right  of  property  or  absolute,  un- 
qualified personal  right. 

Missouri:  Blair  v.  Ridgely,  41 
Mo.  63,  174,  97  Am.  Dec.  248. 
Holding  that  the  elective  franchise 
cannot  be  exercised  as  a  natural 
right  and  is  subject  to  such  quali- 
fications as  may  be  prescribed  by 
the  State  or  body  politic.  It  was 
argued  by  counsel  in  this  case  that: 
"The  very  term  franchise  excludes 
the  idea  of  natural  right;  for  a  fran- 
chise is  a  privilege  granted  by  the 
sovereign  authority  to  an  individ- 
ual."    Id,,  161. 

New  York:  People  v.  Barber,  48 
Hun  (N.  Y.),  198,  201,  15  N.  Y.  St. 
R.  601,  28  Wkly.  D.  313.  "The 
elective  suffrage  is  not  a  natural 
right  of  the  citizen.  It  is  a  fran- 
chise dependent  upon  law  by  which 
it  must  be  conferred  to  permit  its 
exercise. "  "  It  is  a  political  right  to 
be  given  or  withheld  at  the  pleasure 
of  the  lawmaking  power  of  the  sov- 
ereignty, and  is  not  deemed  within 
the  privileges  and  immunities  guar- 
anteed to  the  citizen  by  the  Consti- 
tution of  the  United  States,"  per 
Bradley,  J.  Case  reversed,  25  N.  Y. 
St.  R.  184  (case  cited  in  Gage,  Mat- 
ter of,  141  N.  Y.  112,  116,  56  N.  Y. 
St.  K.  662,  '■'>:•>  N.  E.  1094,  to  point 
that  constitutional  definition  of  elec- 
h  r  must  be  rend  into  laws  regulating 
eleetion  of  county  officers;  cited  al  0 


in  Spitzer  v.  Village  of  Fulton,  68 
N.  Y.  Supp.  660,  662,  33  Misc.  257, 
to  point  that  right  of  suffrage  is  not. 
a  natural  right,  but  a  privilege  to  be 
granted  or  denied,  regulated  or 
modified.  This  last  case  is  affirmed, 
69  N.  Y.  Supp.  1146,  61  App.  Div. 
612,  which  is  affirmed,  172  N.  Y. 
285,  64  N.  E.  957);  People  ex  rel. 
Frost  v.  Wilson,  3  Hun  (10  N.  Y. 
Supr.  Ct.),  437,  rev'd,  62  N.  Y.  186. 
Right  of  suffrage — whence  derived 
and  power  of  legislature  to  regulate. 

Pennsylvania:  Huber  v.  Reily, 
53  Pa.  112,  115,  23  Leg.  Int.  228. 
"The  right  of  suffrage  at  a  state 
election  is  a  state  right,  a  fran- 
chise conferrable  only  by  the  State, 
which  Congress  can  neither  give 
or  take  away.  *  *  *  Congress 
may  doubtless  deprive  an  individual 
of  *  *  *  eVen  the  right  of  suf- 
frage. But  this  is  a  different  thing 
from  taking  away  or  impairing  the 
right  itself,"  per  Strong,  J.;  Duffy, 
In  re,  4  Brewst,  (Pa.)  531.  The  ex- 
ercise of  the  elective  franchise, 
though  a  constitutional  right,  is  not 
one  of  unrestrained  license,  and  is 
to  be  enjoyed  in  subordination  to 
law. 

South  Dakota:  Chamberlain  v. 
Wood,  15  S.  Dak.  216,  221,  56  L.  R. 
A.  187,  88  N.  W.  109,  91  Am.  St. 
Rep.  674.  "The  right  of  suffrage 
is  not  a  natural  or  civil  right,  but  a 
privilege  conferred  upon  the  person 
by  the  constitution  and  laws  of  the 
State.  Judge  Cooley,  in  his  work 
on  Constitutional  Limitations, 
'Participation    in    the   elective   fran- 


2  Lasher  v.  People,  183  111.  226,  to  be  a  franchise.  Knoup  v.  Piqua 
236,  55  N.  E.  663,  47  L.  R.  A.  802.  Bank,  1  Ohio  St.  603,  013,  per  Cor- 
The  right  to  create  an  office  is  said    win,   J. 

67 


§  21 


ENUMERATION   OF   FRANCHISES 


statute  empowering  him  to  appoint  a  civil  service  commis- 
sion.3 Nor  is  an  office  a  franchise  within  the  meaning  of  a 
constitution  and  a  statute  prescribing  the  appellate  jurisdic- 
tion of  courts.4  And  a  public  office  is  not  a  franchise  under  a 
statute  clearly  distinguishing  the  two,  and  the  right  of  appeal 
does  not  exist  where  the  judgment  relates  to  the  former  and 
not  to  the  latter.5  It  is  declared  in  a  New  York  case  that  an 
attorney  or  counsellor  does  not  hold  an  office,  but  exercises  a 


chise  is  a  privilege,  rather  than  a 
right,  and  it  is  granted  or  denied 
upon  grounds  of  general  policy.' 
Cooley  Const.  Lim.  (6th  ed.)  752," 
per  Corson,  J. 

Tennessee:  State  v.  Staten,  6 
Coldw.  (46  Tenn.)  233,  255.  "The 
elective  franchise  is  at  once,  a  right 
and  a  trust,  conferred  by  the  people 
of  a  State,  acting  in  their  supreme 
and  sovereign  capacity,  upon  such 
members  of  the  body  politic  as 
they,  in  their  sovereign  discretion, 
deem  should  hold  and  exercise  it, 
having  regard  to  the  protection, 
both  of  private  rights  and  of  public 
interests.  Once  conferred  upon  the 
citizen,  it  is  a  franchise  in  which  he 
has  a  right  of  property  which  the 
law  protects,"  per  Andrews,  J. 
"The  elective  franchise  is  a  right 
which  the  law  protects  and  enforces 
as  jealously  as  it  does  property  in 
chattels  or  lands.  *  *  *  Per- 
sons invested  with  it,  cannot  be  de- 
prived of  it,  otherwise  than  by  'due 
process  of  law."'  Id.,  p.  243,  per 
Smith,   J.;   Ridley  v.   Sherbrook,   3 


Coldw.  (43  Tenn.)  569,  576.  The 
elective  franchise  is  not  an  inalien- 
able right  or  privilege,  conferred, 
limited  or  withheld,  at  the  pleasure 
of  the  people,  acting  in  their  sov- 
ereign capacity. 

Utah:  Anderson  v.  Tyree,  12 
Utah,  129,  149,  42  Pac.  201.  "It  is 
conceded  that  the  elective  franchise 
is  permissive,  and  from  its  nature 
excludes  all  not  within  the  classes 
pointed  out,  and  that  it  requires  a 
legislative  enactment  or  authority 
to  extend  the  privilege  to  classes 
not  previously  embraced. "  Women 
held  not  entitled  to  vote. 

The  "elective  franchise"  under  a 
statute  as  to  preventing  "a  fair, 
free  and  full  exercise  of  the  elective 
franchise"  "is  the  right  or  privi- 
lege of  a  qualified  elector  or  voter  to 
cast  his  ballot  freely  in  favor  of  the 
man  of  his  choice,  in  an  election 
authorized  by  law  to  be  held. " 
Parks  v.  State  ex  rel.  Owens,  100 
Ala.  634,  651,  13  So.  756,  per  Stone, 
C.  J.;  Acts  Ala.  1893-94  p.  468  (Act 
Feb.  10,  1893,  §1,  subdv.  5). 


3  Morrison  v.  The  People,  196  111. 
454,  63  N.  E.  989. 

*  Graham  v.  People,  104  111.  321; 
People  v.  Holz,  92  111.  426  (a  case  of 
quo  warranto  to  try  title  to  office  of 
inspectors  of  schools). 

An  office  of  alderman  is  not  a 
franchise  within  a  statute  giving  the 

68 


Supreme  Court  jurisdiction  of  ap- 
peals direct  from  the  trial  court  in 
quo  warranto  to  test  the  right  to  the 
office.  McGrath  v.  People,  100  111. 
464. 

5  Londoner    v.    Barton,    15    Colo. 
246,  247,  25  Pac.  183,  per  Hayt,  J. 


ENUMERATION   OF   FRANCHISES  §   21 

privilege  or  franchise;  that  as  attorneys  or  counsellors,  they 
perform  no  duties  on  behalf  of  the  government;  they  execute 
no  public  trust,  but  they  enjoy  the  exclusive  privilege  of 
prosecuting  and  defending  suits  for  clients,  who  may  choose 
to  employ  them.6  Again,  the  right  of  a  mayor  of  a  city  to 
preside  over  the  meetings  of  a  city  council,  is  a  franchise 
within  the  meaning  of  a  statute,  and  quo  warranto  will  lie 
to  test  such  right  even  though  such  a  case  is  not  a  contest  for 
office.7  And  it  is  also  declared  that  "if  appointment  of  pro- 
fessors by  an  incorporated  college  is  a  franchise  the  assertion 
of  such  right,  unless  justified  by  authority  from  the  legislature, 
is  the  usurpation  of  a  franchise"  for  which  an  information  in 
the  nature  of  a  quo  warranto  may  be  filed.8  Under  a  Kansas 
decision  the  right  of  licensing  the  sale  of  intoxicating  liquors 
as  a  beverage,  and  the  exaction  of  a  tax  or  charge  therefor, 
is  a  franchise  or  privilege  which  no  city  has  the  power  to  exe- 
cise,  and,  if  unlawfully  exercised,  quo  warranto  is  the  proper 
remedy.9  And  in  Alabama  the  right  to  operate  a  dispensary 
for  the  sale  of  liquors  is  held  to  be  the  exercise  of  a  franchise.10 
So  in  Kentucky  such  a  license  is  held  to  be  a  franchise.11    But  in 

6  Matter    of    Oaths    by  Attorneys  from  proper  authority — in  this  coun- 

&  Counsellors,  20  Johns.  (N.  Y.)  491,  try  from  the  legislature.     The  right 

493.     The  court  says  also:  "Various  to   preside   therein  is    a  legal  right 

classes  of  persons  are  licensed  in  the  conferred  by  law.     This  right  is  a 

city  of  New  York,  with  an  exclusive  'franchise'    or    privilege    given    by 

privilege  in   their  employment;  yet  law,  and  therefore,  if  invaded,  the 

they  are  not  public  officers.     Physi-  law   affords  a  means  of  redress,   a 

cians  are  also  licensed,  pursuant  to  remedy,  and  this  remedy  is  by  quo 

statute;  yet  they  hold  no  office  or  warranto,  or  information  in  that  na- 

public    trust,  in  legal  construction."  ture,"  citing  Angell  &  Ames,  Corp. 

The  right  to  practice  law  is  not  a  §  737. 

privilege  or  immunity  of  a  citizen  8  People    v.    Trustees    of    Geneva 

of  the  United  States  within  the  mean-  College,  5  Wend.   (N.  Y.)  211,  220, 

ing  of  the  first  section  of  the  Four-  per  Savage,  Ch.  J. 

teenth  Article  of  Amendment  of  the  •  State  v.  City  of  Topeka,  30  Kan. 

I  (institution   of  the   United   States.  653,  661,  2  Pac.  587. 

Bardwell  v.  State,  16  Wall.  (U.  S.)  ,0City    of    Uniontown    v.    State. 

130.  145    Ala.    471,    39    So.    814;    State 

'Cochran   v.   McCleary,   22  Iowa,  v.     Wilburn     (Ala.,    1905),    39    So. 

75,  89,  per  Dillon,  J.,  who  said:  "A  816. 

public  corporation  can  only  emanate  "Miller    v.    Commonwealth,    112 

69 


§  21  ENUMERATION    OF   FRANCHISES 

an  Illinois  case  a  liquor  license  is  not  a  franchise  under  statutory 
provision  allowing  appeals  in  certain  cases.12  As  to  "com- 
modities" it  is  said  that:  "It  has  been  repeatedly  held  that 
corporate  franchises  enjoyed  by  grant  from  the  government 
are  commodities  and  subject  to  an  excise.  So  with  corporate 
franchises  granted  by  a  foreign  government."  13  It  is  said 
in  a  New  Jersey  case  that:  "A  free  fishery  or  exclusive  right 
of  fishing  in  a  public  river,  is  a  royal  franchise,  which  is  now 
frequently  vested  in  private  persons,  either  by  grant  from 
the  crown  or  by  prescription.14  But  no  exclusive  right  of 
fishing,  or  several  fisheries,  in  the  Hudson  river,  can  be  granted 
to  any  one  person,  where,  under  the  constitution,  no  franchise 
which  does  not  promote  the  public  welfare  may  be  granted.15 
An  exclusive  privilege  to  build  and  operate  a  public  market 

Ky.  404,  65  S.  W.  828.     Point  arose  Greenleaf's    Cruise    on    Real    Prop. 

upon  question  of  right  of  appeal.  261). 

12  Martins  v.  Rock  Island  County  15  Slingerland  v.  International 
Atty.,  186  111.  314,  318,  57  N.  E.  Contracting  Co.,  60  N.  Y.  Supp.  12, 
871.  17,  43  App.  Div.  215,  per  Landon,  J., 

13  Gleason  v.  McKay,  134  Mass.  who  also  says:  "The  plaintiffs' claim 
419,  424,  425,  per  Morton,  C.  J.  The  is  not  to  the  land,  but  to  what  may 
defendant  in  this  case  was  not  a  cor-  come  because  of  the  land, — an  in- 
poration  but  merely  a  partnership,  corporeal  hereditament,  which  Black- 
See  Finch's  Law  of  Eng.  126  [38].  stone  classifies  as  a  franchise.     2  Bl. 

Where  a  state  constitution  em-  Comm.  39.  It  manifestly  is  a  fran- 
powers  the  legislature  to  impose  and  chise  if  it  is  a  private,  exclusive 
levy  reasonable  duties  and  excises  monopoly  of  a  public  right.  Under 
upon  "commodities,"  etc.,  an  act  our  constitution  no  franchise  can  be 
of  incorporation  is  declared  to  be  granted  except  to  promote  the  pub- 
a  commodity  or  privilege.  Com-  lie  welfare.  To  grant  to  one  person 
monwealth  v.  People's  Five  Cent  the  exclusive  right  of  fishing  in  any 
Sav.  Bank,  5  Allen  (87  Mass.),  428,  part  of  the  Hudson  river,  would  be 
435,  per  Bigelow,  C.  J.,  who  says,  to  deprive  every  other  person  of  his 
"Certainly  it  is  most  just  and  reason-  privilege  of  fishing  there."  Case 
able  that  a  privilege,  or  to  use  the  aff'd,  169  N.  Y.  60,  72,  61  N.  E.  995. 
words  of  the  constitution,  '  a  com-  See  this  case  also  as  to  riparian  own- 
modity,'  which  an  act  of  incorpo-  ers  "right  to  ice."  The  court  said: 
ration  furnishes  *  *  *  should  "As  riparian  owner  he  has  no  ex- 
bear  a  portion  of  the  public  bur-  elusive  right  of  fishery  or  of  taking 
dens,  in  the  form  of  an  excise."  ice."     "As  to  shell  fish  private  own- 

14  Arnold  v.  Mundy,  6  N.  J.  L.  1,  ership  in  public  waters  may  exist 
87,  10  Am.  Dec.  366,  per  Kirk-  and  the  State  may  lease  privi- 
patrick,  C.  J.,  citing  2  Cruise,  29  (73  leges." 

70 


ENUMERATION   OF   FRANCHISES  §   21 

and  rent  stalls  is  also  a  franchise.16  But  a  franchise  is  not 
involved  in  an  action  to  set  aside  or  redeem  from  convey- 
ance of  a  patent  right  so  as  to  authorize  an  appeal  to  the 
Supreme  Court,  where  the  existence  or  validity  of  the  patent 
itself  is  not  questioned.17  Nor  is  a  trade-mark  a  franchise.18 
Although  the  term  "news  contracts"  may  pass  under  the 
name  of  "franchises"  in  the  newspaper  trade,  where  the  term 
is  used,  they  are  not  "franchises"  in  a  legal  sense,  but  are 
confined  to  the  trade  meaning  of  the  term  and  do  not  pass 
under  a  sale  of  franchises  under  a  statute  providing  a  method 
for  such  sale.19 

16  Maestri  v.  Board  of  Assessors,  "Admitting  for  the  sake  of  argu- 
110  La.  517,  34  So.  658.  Holding  ment,  that  a  patent  is  a  franchise, 
that  the  exclusive  privilege  vested  still  it  does  not  necessarily  follow 
in  a  person,  pursuant  to  a  city  or-  that  this  case  is  properly  before  this 
dinance     and     contract     predicated    court. " 

thereon  made  by  him  with  the  city  18  "A  trade-mark  is  not  a  franchise. 
of  New  Orleans  to  furnish  the  It  is  not  a  privilege  emanating  from 
ground,  build  thereon  a  structure  the  sovereign  power  of  the  State, 
suitable  for  a  public  market  and  owing  its  existence  to  a  grant,  or  a 
then  operate  it  as  such  for  25  years  prescription  presupposing  a  grant, 
by  renting  stalls  to  those  engaged  in  but  it  is  on  the  contrary,  the  name, 
the  market  business,  and  collecting  symbol,  figure,  letter,  from  a  device 
and  appropriating  to  himself  the  adopted  and  used  by  a  manufac- 
revenues  derived  from  the  renting  of  turer  or  merchant  in  order  to  desig- 
the  stalls — the  ground  and  market  nate  the  goods  he  manufactures  or 
house  to  be  conveyed  by  formal  title  sells,  and  distinguish  them  from  those 
to  the  city  at  the  beginning,  and  to  manufactured  or  sold  by  another, 
accrue  to  the  city  in  full  ownership  *  *  *  There  being  no  franchise 
at  the  expiration  of  the  period  fixed  involved  the  appeal  must  be  dis- 
for  the  duration  of  the  privilege — is  missed."  Hazelton  Boiler  Co.  v. 
a  franchise  taxable  under  the  revenue  Hazelton  Tripod  Boiler  Co.,  137  111. 
laws  of  the  State.  "      231,  28  N.  E.  248,  per  Scholfield,  J. 

17  Maginn    v.    Bassford,     196    111.        19  Lawrence     v.     Times     Printing 
266,  63  N.  E.  668.     The  court  said:    Co.,  22  Wash.  482,  61  Pac.  166. 


71 


22  NATURE    OF    FRANCHISE 


CHAPTER  III. 


NATURE   OF   FRANCHISE. 


§  22  Franchise  as  Monopoly  or  §  28.  Franchise     of    Members, 

Exclusive  in  Nature.  Shareholders,   or  Corpo- 

23.  Same  Subject  Continued.  rators  as  Property. 

24.  Same  Subject  Continued.  29.  Corporate    Franchises  are 

25.  Franchise  as  Property.  Legal  Estates  not  Mere 

26.  Same  Subject  Continued.  Naked   Powers. 

27.  Same  Subject  Continued. 

§  22.  Franchise  as  Monopoly  or  Exclusive  in  Nature.1 — 

Monopoly  is  not  an  essential  feature  of  a  franchise;  and  it 
is  declared  in  a  New  York  case  that  a  corporation  with 
banking  powers  would  be  no  less  a  franchise  if  there  were  no 
law  restraining  private  banking,  which  alone  gives  to  banking 
corporations  the  character  of  monopolies.2  So  a  monopoly 
cannot  be  implied  from  the  mere  grant  of  a  charter  to  a  com- 
pany to  construct  a  work  of  public  improvement,  and  to  take 
the  profits;  there  must  be  an  express  provision  in  the  charter 
to  give  such  a  monopoly;  the  legislature  must  restrain  itself 
therein  from  granting  charters  for  rival  and  competing  works. 
Therefore,  where  a  company  was  granted  a  charter  to  con- 
struct a  navigable  canal  along  the  valley  of  a  stream,  and  to 
take  the  profits  in  consideration  of  the  work,  and  there  was 
no  provision  against  the  exercise  of  power  to  charter  other 
and  rival  companies,  it  was  determined  that  the  legislature 
was  not  restrained  from  chartering  a  company  to  construct  a 
railroad  along  the  same  valley,  even  though  it  might  afford 
the  same  public  accommodation  as  the  canal  and  in  effect 

1  See  §  4,  herein.  619,  84  Am.  Dec.  314,  per  Selden, 

2Milhau  v.  Sharp,  27  N.  Y.  611,    J.,  quoting  Bouvier. 

72 


NATURE    OF    FRANCHISE  §    22 

might  impair  or  annihilate  its  profits.3  In  an  Ohio  case  the 
court,  per  Bartley,  C.  J.,  basing  its  conclusions  upon  the 
language  of  Mr.  Burke,  in  a  speech  upon  a  bill  to  repeal  the 
charter  of  the  East  India  Company,  said;  "The  true  nature 
of  the  franchise  of  a  private  corporation,  is  here  portrayed  in 
clear  and  comprehensive  language.  We  are  here  told  that  it 
is  an  institution  to  establish  monopoly  and  to  create  power; 
that  to  speak  of  such  charters  and  their  effects  in  terms  of  the 
greatest  possible  moderation,  they  do  at  least  suspend  the 
natural  rights  of  mankind  at  large;  and  in  their  very  frame 
and  constitution,  are  liable  to  fall  into  a  direct  violation  of 
them;  that  all  special  privileges  of  this  kind,  claimed  or  exer- 
cised in  exclusion  of  the  greater  part  of  the  community,  being 
wholly  artificial,  and  for  so  much  a  derogation  from  the 
natural  equality  of  mankind  at  large,  ought  to  be  some  way 
or  other  exercised  ultimately  for  their  benefit;  and  that  they 
are  not  original  self-derived  rights,  or  grants  for  the  mere  and 
sole  private  benefit  of  the  holders,  but  rights  and  privileges, 
which  in  the  strictest  sense  are  derivative  trusts,  and  from 
their  very  nature  accountable  to  the  power  which  created 
them."  4 


'Tuckahoe  Canal   Co.    v.   Tucka-  24  L.  R.  A.  73,  per  Sanborn,  Cir.  J.; 

hoe    &    James    River    Ry.    Co.,    11  s.  c,  166  U.  S.  290,  41  L.  ed.  100,  17 

Leigh    (Va.),  42,  36  Am.   Dec.  374.  Sup.    Ct.    540;    Camblos    v.    Phila- 

See  §§  23,  24,  herein.  delphia  &  R.  R.  Co.,  Fed.  Cas.  No. 

4  Bank  of  Toledo  v.  City  of  Toledo  2,331,  per  Cadwalader,  Dist.  J.     See 

(Toledo  Bank  v.  Bond),  1  Ohio  St.  Slaughter    House    Cases,    16    Wall. 

622,  635,  636.  (83  U.  S.)  36,  65,  21  L.  ed.  394. 

Definitions  or  meaning  of  monopoly,  Arkansas:    Levy,    Ex   parte,    43 

see  the  following  cases:  Ark.  42,  53,  51  Am.  Rep.  550,  per 

United     States:     Charles    River  Eakin,  J. 

Bridge   v.    Warren    Bridge,    11    Pet.  Connecticut:   Norwich  Gas  Light 

(36  U.  S.)  420,  567,  9  L..ed.  773,  per  Co.    v.    Norwich   City   Gas   Co.,    25 

M'Lean,  J.;  City  of  Laredo  v.  Inter-  Conn.  19,  38,  per  Hinman,  J.,  quoting 

national  Bridge  &  Tramway  Co.,  66  Bouvier. 

Fed.  246,  248,  14  C.  C.  A.  1,  per  Mc-  Florida:    Barbee    v.    Jacksonville 

Cormick,   Cir.   J.;   United  States  v.  &  A.  Plank  Road  Co.,  6  Fla.  262,  268, 

Trans-Missouri     Freight    Assn.,     53  269,  per  DuPont,  J.,  citing  Walker's 

Fed.  440,  452,  per  Reiner,  Dist.  J.;  Amor.  Law,  p.  208. 

8.  c,  58   Fed.  58,  92,  7  C.  C.  A.  15,  Montana:    Davenport    v.    Klein- 

73 


123 


NATURE   OF   FRANCHISE 


§  23.  Same  Subject  Continued. — It  is  pertinent,  in  this 
connection,5  to  notice  the  rule  that  grants  of  franchises  should, 
as  to  all  rights  claimed  under  them,  be  strictly  construed 
against  the  grantee  and  most  favorably  to  the  sovereign  power 
or  State, — that  is,  strictly  against  the  corporation  and  liberally 
in  favor  of  the  public.6  Such  grants  of  franchises  should  be 
in  plain  language,  and  certain  and  definite  in  their  nature,7 
as  only  that  passes  which  is  granted  in  clear  and  explicit 


schmitt,  6  Mont.  502,  529,  13  Pac. 
249,  per  McLeary,  J.  (gives  an  ex- 
clusive right  or  sole  power). 

North  Dakota:  Patterson  v. 
Wollmann,  5  N.  Dak.  608,  615,  616, 
67  N.  W.  1040,  33  L.  R.  A.  536,  per 
Corliss,  J. 

Tennessee:  Leeper  v.  State,  103 
Tenn.  500,  514,  53  S.  W.  962,  48  L.  R. 
A.  167,  per  Wilkes,  J.;  Memphis, 
City  of,  v.  Memphis  Water  Co.,  5 
Heisk  (52  Tenn.),  495,  529,  per 
Nicholson,  C.  J. 

Texas:  Jones  v.  Carter  (Tex. 
Civ.  App.  1907),  101  S.  W.  514,  515, 
516,  per  Gill,  C.  J. 

5  See  §  4,  herein. 

6  United  States:  Water,  Light  & 
Gas  Co.  of  Hutchinson  v.  Hutchin- 
son, 207  U.  S.  385,  28  Sup.  Ct.  135, 
case  affirms  144  Fed.  256;  Cleveland 
Electric  Ry.  Co.  v.  Cleveland,  204 
U.  S.  116,  130,  citing  Blair  v.  Chi- 
cago, 201  U.  S.  400,  471,  50  L.  ed. 
801,  26  Sup.  Ct.  427;  Pearsall  v. 
Great  Northern  Rd.  Co.,  161  U.  S. 
646,  40  L.  ed.  838,  16  Sup.  Ct.  705, 
case  reverses  73  Fed.  933;  Hamilton 
Gas  Light  &  C.  Co.  v.  Hamilton,  146 
U.  S.  258,  13  Sup.  Ct.  90,  36  L.  ed. 
963;  Oregon  Ry.  &  Nav.  Co.  v.  Ore- 
gonian  Ry.  Co.,  130  U.  S.  1,  32  L.  ed. 
837,  9  Sup.  Ct.  409;  Hannibal  &  St. 
Joseph  Rd.  Co.  v.  Missouri  River 
Packet  Co.,  125  U.  S.  260,  31  L.  ed. 
731,  8  Sup.  Ct.  874;  Omaha  Horse  Rd. 
Co.  v.  Cable  Tramway  Co.,  30  Fed. 

74 


324.  Rule  also  applied  to  fran- 
chises giving  monopolies.  Georgia 
Macon  &  Western  Rd.  v.  Davis,  13 
Ga.  68. 

Illinois:  Blocki  v.  People,  220 
111.  444,  77  N.  E.  172;  Mills  v. 
County  of  St.  Clair,  7  111.  197. 

Maryland:  Baltimore,  City  of,  v. 
Chesapeake  &  Potomac  Teleph.  Co., 
92  Md.  692,  48  Atl.  465. 

Minnesota:  State  v.  St.  Paul, 
Minneapolis  &  Manitoba  Ry.  Co., 
98  Minn.  380,  108  N.  W.  261. 

Nebraska:  Lincoln  St.  R.  Co.  v. 
City  of  Lincoln,  61  Neb.  109,  110,  84 
N.  W.  802. 

New  Jersey:  Millville  Gas  Light 
Co.  v.  Vineland  Light  &  Power  Co. 
(N.  J.  Eq.,  1906),  65  Atl.  504. 

New  York:  Trustees  of  South- 
ampton v.  Jessup,  162  N.  Y. 122, 127, 
56  N.  E.  538,  per  Vann,  J.;  case  re- 
verses 10  App.  Div.  456. 

Ohio:  Bank  of  Toledo  v.  City  of 
Toledo  (Toledo  Bank  v.  Bond),  1 
Ohio  St.  622,  636,  per  Bartley,  J. 

Pennsylvania:  Emerson  v.  Com- 
monwealth, 108  Pa.  111. 

Tennessee:  Citizens'  St.  Ry.  Co. 
v.  Africa,  100  Tenn.  26,  53,  42  S.  W. 
485,  878. 

7  Cleveland  Electric  Ry.  Co.  v. 
Cleveland,  204  U.  S.  116,  130,  51 
L.  ed.  399,  27  Sup.  Ct.  — ,  citing 
Blair  v.  Chicago,  201  U.  S.  400,  471, 
26  Sup.  Ct.  427,  50  L.  ed.  801. 


NATURE  OF   FRANCHISE  §   23 

terms;  whatever  is  not  unequivocally  granted  is  withheld, 
and  nothing  passes  by  implication  except  what  is  necessary 
to  carry  into  effect  the  obvious  intent  of  the  grant.8  The 
above  rule  as  to  strict  construction  is  held  to  apply  so  that 
grants  of  a  franchise  or  privilege  are  not  ordinarily  to  be  taken 
as  grants  of  an  exclusive  privilege.9  So  it  is  declared  that 
"Exclusive  rights  to  public  franchises  are  not  favored.  If 
granted,  they  will  be  protected,  but  they  will  never  be  pre- 
sumed. Every  statute  which  takes  away  from  the  legislature 
its  power  will  always  be  construed  most  strongly  in  favor  of 
the  State.  These  are  elementary  principles."  10  It  is  also  said 
that  an  exclusive  privilege  cannot  legally  exist  where  there 
is  the  slightest  doubt  as  to  its  validity,  and  that  a  special 
franchise  to  be  exclusive  must  be  absolutely  free  from  am- 
biguity.11 And  in  a  late  case  in  the  United  States  Supreme 
Court  it  is  held  that  the  power  to  grant  an  exclusive  privilege 
must  be  expressly  given,  or,  if  inferred  from  other  powers, 
must  be  indispensable,  and  not  merely  convenient  to  them.12 
So,  under  a  New  York  decision,  grants  of  franchises  by  the 
same  State  are  to  be  so  strictly  construed  as  to  operate  as  a 
surrender  of  the  sovereignty  no  further  than  is  expressly 
declared  by  the  terms  of  the  grant ;  the  grantee  takes  nothing 
in  that  respect  by  inference,  except  so  far,  therefore,  as,  by  the 
terms  of  the  grant,  the  exercise  of  the  franchise  rights  granted 
is  made  exclusive,  the  legislative  power  is  reserved  to  grant 

8  Knoxville    Water    Co.  v.  Knox-  Ry.  Co.  v.  Canal  Commissioners,  21 

ville,  200  U.  S.  22,  26  Sup.  Ct.  224,  Pa.  9,  22,  per  Black,  C.  J. 
50   L.   ed.    353;    Stein    v.    Bienville        9  Long  Island   Water  Supply  Co. 

Water  Supply  Co.,  141  U.  S.  67,  11  v.  Brooklyn,  166  U.  S.  685,  696,  41 

Sup.  Ct.  892,  35  L.  ed.  622;  Charles  L.  ed.    1165,   17  Sup.   Ct.   718,  per 

River  Bridge  v.  Warren  Bridge,  11  Brewer,  J.;  McLeod  v.  Burroughs,  9 

Pet.   (36  U.  S.)  420,  9  L.  ed.  773;  Ga.  213. 

City   of    Helena   v.    Helena   Water-        '"Wright  v.  Nagle,  101  U.  S.  791, 

works  Co.,  122  Fed.  1,  59  C.  C.  A.  159;  796,  25  L.  ed.  921,  per  Waite,  C.  J. 
People  ex  rel.  Woodhaven  Gas  Co.        M  West  Manayunk  Gas  Light  Co. 

v.  Deehan,  153  N.  Y.  528,  47  N.  E.  v.  New  Gas  Light  Co.,  21  Pa.  Co.  Ct. 

787,  case  reverses  11  App.  Div.  175;  Rep.  379  (a  franchise  under  Pa.  act 

Syracuse  Water  Co.  v.  City  of  Syra-  1874). 

cuse,  116  N.  Y.  167,  26  N.  Y.  St.  R.        12  Water,    Light    &    Gas    Co.,    of 

364,    22    N.    E.    381;    Pennsylvania  Hutchinson   v.   Hutchinson,   207  U. 

75 


§   23  NATURE   OF   FRANCHISE 

and  permit  the  exercise  of  competing  and  rival  powers  and 
privileges,  however  injurious  they  may  be  to  those  previously 
granted.13  And  if  a  State  grants  no  exclusive  privileges  to 
one  company  which  it  has  incorporated,  it  impairs  no  contract 
by  incorporating  a  second  one  which  itself  largely  manages 
and  profits  by  to  the  injury  of  the  first.14  Again,  in  the  con- 
struction of  charters  and  statutes  granting  exclusive  privileges 
to  street-railway,  gas  or  water  companies,  authority  therefor 
must  be  given  explicitly  by  the  legislature  in  clearly  expressed 
terms — the  right  will  not  be  implied  from  the  use  of  general 
language;  and,  as  a  rule,  municipalities  have  no  power  to 
grant  such  exclusive  rights  to  said  companies  except  upon 
legislative  authorization  subject  to  the  same  rules  of  con- 
struction as  above  stated.15  Where  a  statute  grants  exclusive 
rights  to  supply  light  or  heat,  a  corporation  which  comes 
within  the  terms  of  the  statute  may  exercise  such  exclusive 
privilege.  But  where  the  statute  provides  for  the  incorpora- 
tion of  companies  "for  the  supply  of  water  to  the  public,  or 
for  the  manufacture  of  gas,  or  the  supply  of  light  or  heat  to 
the  public,  by  any  other  means,"  it  does  not  include  electric 
lighting,  where  such  grant  is  relied  on  for  the  purpose  of  claim- 
ing an  exclusive  privilege,  especially  so  where  the  act  in  ques- 
tion gives  no  power  to  enter  upon  the  public  streets  for  the 
erection  of  poles  and  placing  of  wires,  the  privilege  of  so  enter- 
ing being  confined  to  the  laying  of  pipes  only  and  the  process 
of  lighting  by  electricity  being  unknown  when  the  statute  was 

S.  385,  28  Sup.  Ct.  135,  case  affirms  N.  Y.   154,  55  N.  E.  562,  aff'g  54 

144  Fed.  256.     See  §  4,  herein.  N.  Y.  Supp.  1115,  33  App.  Div.  642. 

13  Syracuse  Water  Co.  v.  City  of  1S  Detroit  Citizens'  St.  R.  Co.  v. 
Syracuse,  116  N.  Y.  167,  26  N.  Y.  Detroit,  110  Mich.  384,  68  N.  W. 
St.  R.  364,  22  N.  E.  381.  304,  35  L.   R.  A.  859,  28  Chic.   L. 

14  Turnpike  Co.  v.  State,  3  Wall.  News,  409,  3  Detroit  L.  News,  377, 
(70  U.  S.)  210,  18  L.  ed.  180.  See  5  Am.  &  Eng.  R.  Cas.  (N.  S.)  15,  aff'd 
also  Rockland  Water  Co.  v.  Camden  171  U.  S.  48,  18  Sup.  Ct.  732.  See 
&  Rockland  Water  Co.,  80  Me.  544,  Morawetz  on  Priv.  Corp.  (ed.  1882) 
1  L.  R.  A.  388,  15  Atl.  785.  Ex-  §431;  Cooley  on  Const.  Lim.  (ed. 
amine  Skaneateles  Water  Works  Co.  1890)  pp.  231  et.  seq;  4  Thomp.  on 
v.  Skaneateles,  184  U.  S.  354,  46  L.  Corp.  (ed.  1895)  §§  5348,  5398- 
ed.  585,    22   Sup.  Ct.  400,  aff'g   161  5403. 

76 


NATURE    OF    FRANCHISE 


§  24 


enacted.16  The  rule  was  also  relied  upon  in  this  case,  that  a 
legislative  grant  to  a  corporation  of  exclusive  privileges  is  to 
be  construed  most  strictly,  that  every  intendment  not  ob- 
viously in  favor  of  the  grant  must  be  construed  against  it, 
and  that  monopolies  are  not  to  be  favored.17 


§  24.  Same  Subject  Continued.— The  term  "  franchise  "  18 
is,  however,  sometimes  used  to  mean  an  exclusive  right,19  and 


16  Scranton  Elect.  Light  &  Heat 
Co.  v.  Scranton  Illuminating,  Heat 
&  Power  Co.,  122  Pa.  154,  9  Am. 
St.  Rep.  79,  15  Atl.  446,  3  Am. 
Elec.  Cas.  499;  Act  of  Pa.  1874, 
§  34,  cl.  3,  contra,  except  as  to  ex- 
clusive privilege;  Wilkesbarre  Elec. 
L.  Co.  v.  Wilkesbarre  L.  H.  &  M. 
Co.  (C.  P.  Penn.  1886),  4  Kulp,  47. 

17  Citing  Emerson  v.  Common- 
wealth, 108  Pa.  111.  The  court 
in  the  principal  case  (122  Pa.  154, 
cited  in  last  preceding  note),  per 
Gordon,  C.  J.,  said:  "Monopolies 
are  favorites  neither  with  courts  nor 
people.  They  operate  in  restraint 
of  competition,  and  are  hence,  as  a 
rule,  detrimental  to  the  public  wel- 
fare; nor  are  they  at  all  allowable 
except  where  the  resultant  ad- 
vantage is  in  favor  of  the  public,  as, 
for  instance,  where  a  water  or  gas 
company  could  not  exist  except  as  a 
monopoly." 

18  See  §  4,  herein. 

18  Chicago  &  Western  Indiana  Rd. 
Co.  v.  Dunbar,  95  111.  571,  576,  per 
Dickey,  J.     See  §  4,  herein. 

"The  word  'exclusive'  is  derived 
from  '  ex, '  out,  and  '  claudcrc, '  to  shut. 
An  act  does  not  grant  an  exclusive 
privilege  or  franchise  unless  it  shuts 
out  or  excludes  others  from  enjoy- 
ing a  similar  privilege  or  franchise. 
The  most  familiar  instances  of  grants 
of  exclusive  privileges  or  franchises 
are  to  be  found  in  acts  authorizing 


the  establishment  of  ferries,  toll 
bridges,  turnpikes,  telegraph  com- 
panies and  the  like.  *  *  *  The 
delegation  to  a  corporation  of  the 
power  to  acquire  title  to  land  for  pub- 
he  purposes  is  not  a  grant  of  an  'ex- 
clusive' privilege,  for  the  same 
delegated  power  may  be  conferred 
upon  any  corporation  to  whom  the 
legislature  may  see  fit  to  intrust  it." 
Union  Ferry  Co.,  Matter  of  Appli- 
cation of,  9S  N.  Y.  139,  151,  per 
Rapallo,  J.;  Davenport  v.  Klein- 
schmidt,  6  Mont.  502,  531,  13  Pac. 
249,  per  McLeary,  J.,  gives  same 
definition. 

The  grant  of  every  franchise  or 
privilege  is  "an  exclusive  one,  in  the 
sense  that  all  others  are  excluded 
from  the  enjoyment  of  that  par- 
ticular franchise  or  privilege.  The 
true  test  is  not,  are  all  others  ex- 
cluded from  the  enjoyment  of  that 
particular  grant?  But  are  all  others 
excluded  from  the  enjoyment  of  a 
like  grant?  The  fact  that  no  others 
enjoy  a  like  immunity  does  not  ren- 
der the  immunity  exclusive.  It  is 
not  whether  others  enjoy  a  similar 
privilege,  immunity  or  franchise, 
but  are  others  prohibited  from  a 
similar  enjoyment  by  reason  of  the 
enactment."  Wood  v.  Common 
Council  of  City  of  Binghamton,  56 
N.  Y.  Supp.  105,  111,  26  Misc.  208, 
per  Mattice,  J. 

Meaning     of     exclusive     franchise, 

77 


§   24  NATURE   OF   FRANCHISE 

it  is  expressly  declared  that  every  grant  of  a  franchise  is,  so 
far  as  that  grant  extends,  necessarily  exclusive,  and  cannot 
be  resumed  or  interfered  with;  that  it  is  a  contract  whose 
obligation  cannot  be  constitutionally  impaired;20  and  that 
certain  franchises  are  founded  upon  a  valuable  consideration 
and  are  necessarily  exclusive  in  their  nature  and  cannot  be 
resumed  at  pleasure  or  the  grant  impaired  by  any  act  of  the 
government  without  a  breach  of  contract.21  So  in  a  California 
case  it  is  said  that  franchises  are  necessarily  exclusive  in  char- 
acter, otherwise  their  value  would  be  liable  to  be  destroyed 
or  seriously  impaired;  and  that  even  though  the  grant  does 
not  declare  the  privilege  to  be  exclusive,  yet  that  is  necessarily 
implied  from  its  nature.22  It  is  also  declared  that  a  franchise 
is  jus  publicum  and  necessarily  exclusive  in  its  nature.23  So 
a  grant  of  a  ferry  franchise  by  the  legislature,  unless  limited 
by  some  general  law,  or  some  restrictive  provision  in  the 
grant  itself,  is  said  to  be  necessarily  exclusive  to  the  extent 

privilege  or  immunity,  see  the  follow-  v.    Multnomah    Ry.    Co.,    11    Oreg. 

ing  cases:  344,  3  Pac.  435  (ferry  franchise  gives 

Montana:    Davenport    v.    Klein-  exclusive    privilege    of    transporta- 

schmidt,   6  Mont.   502,   529-531,   13  tion  between  certain  points  or  ferry 

Pac.   249    (holding   that   a   right   to  landings). 

furnish  all  the  water  to  a  municipal        Pennsylvania:       Lehigh      Water 

corporation  for  twenty  years,  which  Co.'s  Appeal,  102  Pa.  515,  527. 
right  cannot  be  abridged,  is  an  ex-        20  Charles  River  Bridge  v.  Warren 

elusive  privilege).  Bridge,  11  Pet.  (36  U.  S.)  420,  604, 

New   Jersey:   State   v.    Post,    55  618,  637,    638,    643,    645,  9  L.   ed. 

N.  J.  L.  264,  26  Atl.  683.  773,    per    Story,    J.,    in    dissenting 

New  York:   Trustees  of  Exempt  opinion. 
Firemen's   Benev.    Fund   v.  Roome,        21  Dyer  v.  Tuskaloosa  Bridge  Co., 

93  N.  Y.  313,  328,  45  Am.  Rep.  217  2  Port.  (Ala.)  296,  303,  304,  27  Am. 

(a  grant  of  a  right  to  receive  a  cer-  Dec.  655,  per  Hitchcock,  J. 
tain   proportion   of   public   funds  is        22  California    State    Teleg.  Co.    v. 

not    an    exclusive    privilege,    fran-  Alta    Teleg.    Co.,   22  Cal.   398,  422, 

chise  or  immunity,  under  a  constitu-  per  Crocker,  J. 

tional     provision     prohibiting    such        23  Twelfth  St.  Market  Co.  v.  Phila- 

grants  by  private  or  local  bill).  delphia   &   Reading  Term.   R.   Co., 

Oregon:    Hackett   v.    Wilson,   12  142  Pa.  580,  590,  21  Atl.  989,  per 

Oreg.   25,   31,   32,   6  Pac.   652    (ex-  Thayer,   P.   J.    (a  case  of  a  public 

elusive    privilege    confined    to    ferry  market  house  and  right  of  eminent 

landings  and  such  privilege  can  be  domain).     See  also  3  Kent's  Comm. 

implied  beyond  that);    Montgomery  (14th  ed.)  bottom  p.  723,  *p.  458. 

78 


NATURE   OF   FRANCHISE  §   25 

of  the  privilege  conferred.24  But  it  is  also  asserted  that  a 
grant  of  a  public  ferry  franchise  carries  with  it  no  exclusive 
privilege,  and  that  such  franchise  is  subject  to  the  power  of 
the  proper  authorities,  under  state  laws,  to  establish  such 
other  public  ferries  over  the  same  waters  as  public  convenience 
demands,  and  that  any  injury  thereby  sustained  by  the  first 
grantee  is  damnum  absque  .injuria.25  Legislative  grants  of 
franchises,  however,  whether  granted  by  special  charters  or 
under  general  laws,  confer  privileges  which  are  exclusive  in 
their  nature  as  against  all  persons  upon  whom  similar  rights 
have  not  been  conferred,  so  that  any  attempted  exercise  of 
such  rights,  without  legislative  sanction,  is  not  only  an  un- 
warranted usurpation  of  power,  but  operates  as  a  direct  in- 
vasion of  the  private  property  rights  of  those  upon  whom  the 
franchises  have  been  so  conferred.26 

§  25.  Franchises  as  Property. — A  franchise  has  been  de- 
clared to  be  a  mere  legal  right  or  privilege ; 27  only  an  in- 
tangible right  or  privilege  not  subject  to  assessment; 28  not 
property  of  any  description  except  in  the  sense  that  it  is 
valuable ; 29  not  property  within  the  meaning  of  that  term  as 

24  Mills  v.  County  of  St.  Clair,  7  an    exclusive    right   of    conveyance, 

111.     197.     See     also     Patterson     v.  and  can  only  be  set  up  by  license 

Wollmann,  5  N.  Dak.  608,  67  N.  W.  from  the  crown.     While  it  may  be  a 

1040,  33   L.   R.   A.   536.     Examine  right  to  convey  one  way  only,  there 

Mills  v.  County  of  St.  Clair,  7  111.  must,  at  least,  be  a  right  to  land  on 

(2  Gilm.)  225;  Phillips  v.  Blooming-  the  opposite  shore,  or  the  franchise 

ton,  1  G.  Greene  (Iowa),  498,  502;  cannot  beneficially  exist."     State  v. 

Broadnax  v.  Baker,  94  N.  C.  675,  55  Freeholders  of  Hudson,  23  N.  J.  L. 

Am.  Rep.  633.  206,  209,  per  Carpenter,  J. 

"There  can  be  no  question  as  to  25  Hudspeth  v.  Hall,  111  Ga.  510, 

the  meaning  of  the  word  ferry,  when  36  S.  E.  770. 

used  in  the  common-law  6ense  of  a  26  Millville   Gaslight    Co   v.   Vine- 
franchise    or    right    of    ferry.     The  land  Light  &  Power  Co.,  (N.  J.  Eq. 
definition,  given  in  Termes  de  la  Ley  1906),  65  Atl.  504. 
is  'a  liberty,  by  prescription  or  the  "  Pennsylvania  Rd.  Co.  v.  Bowers, 
king's  grant,  to  have  a  boat  for  pas-  124  Pa.  183,  191,  2  L.  R.  A.  621,  23 
sage   upon   a  great  stream   for  car-  Wkly.  N.  of  Cas.  257,  16  Atl.  836. 
riage  of  horses  and  men  for  reason-  28  South    Park    Commissioners    v. 
able  toll.'     The  term,  according  to  Chicago,  107  111.  105,  108. 
the  common  law  of  England,  implies  20  State  v.  Ferris,  53  Ohio  St.  314, 

79 


§   26  NATURE   OF   FRANCHISE 

used  in  the  Bill  of  Rights,  even  though  in  one  sense  property 
and  valuable  property; 3J  not  real  estate;31  and  that  a  ferry 
is  not  land  nor  an  incorporeal  hereditament.32  It  has  also 
been  declared  by  an  eminent  writer,  whose  statements,  gen- 
erally, have  been  accepted  as  having  almost  the  force  of  a 
judicial  opinion,  that  franchises  have  with  some  impropriety 
been  classed  among  hereditaments.33  Again,  in  a  New  Jersey 
case  the  court  says  that:  "Although,  technically  speaking, 
franchises  are  property,  they  are  property  of  a  peculiar  char- 
acter, arising  only  from  legislative  grant,  and  are  not  in  ordi- 
nary cases,  subject  to  execution  or  to  sale  and  transfer,  even 
in  payment  of  the  debts  of  the  corporation  without  the  assent 
or  authority  of  the  legislature.34  And  it  is  also  held  that  an 
action  at  law  cannot  be  maintained  to  recover  possession  of 
a  franchise  of  a  corporation  because  it  is  intangible  and  is  in- 
capable of  physical  identification  or  delivery.35 

§  26.  Same  Subject  Continued.— Notwithstanding  any  as- 
sertion to  the  contrary,  franchises  are  property,  and  are 
almost  universally  classed  as  real  property  or  incorporeal 
hereditaments.36     But,  upon  the  point  that  the  legislature 

329,    41    N.   E.    579,    30    L.   R.    A.  editaments,  since  they  have  no  inher- 

218.  itable  quality,  inasmuch  as  a  corpo- 

30  City  of  Baltimore  v.  Johnson,  96  ration,  in  cases  where  there  is  no 
Md.  737,  747,  61  L.  R.  A.  568,  54  Atl.  express  limitation  to  its  continuance 
646,  per  Boyd,  J.;  State  v.  Philadel-  by  the  charter,  is  supposed  never  to 
phia,  Wilmington  &  Bait.  Rd.  Co.,  die,  but  to  be  clothed  with  a  kind  of 
45  Md.  361,379,  24  Am.  Rep.  511,  per  legal  immortality."  3  Kent's  Comm. 
Robinson,  J.  (a  case  of  taxation).  (14th    ed.)    bottom     p.    727,    *459; 

31  Fidelity  Title  &  Trust  Co.  v.  quoted  in  dissenting  opinion  of  Tap- 
Schenley  Park  &  Highlands  Rd.  Co.,  ley,  J.,  in  Kennebec  &  Portland  Rd. 
189  Pa.  363,  370,  42  Atl.  140,  69  Am.  Co.  v.  Portland  &  Kennebec  Rd. 
St.  Rep.  815.  Co.,  59  Me.  966  (a  case  of  mortgage 

32  Morse  v.  Garner,  1  Strobh.  (S.  and  foreclosure  of  franchise,  etc.,  of 
C.)  514,  520,  held  not  an  incorporeal  railroad). 

hereditament  "in  this  State."     See  34  Randolph  v.  Lamed,  27  N.  J. 

notes  under  next  following  section  Eq.  557,  561,  per  Green,  J. 

herein.  35  Budd  v.  Multnomah  St.  Rd.  Co., 

33  "These  incorporated  franchises  15  Oreg.  404,  15  Pac.  654. 

seem,  indeed  with  some  impropriety,        38  United    States:     Louisville    & 
to  be  classed  by  writers  among  her-    Jeffersonville  Ferry  Co.  v.  Kentucky, 

80 


NATURE    OF    FRANCHISE 


26 


had  no  power  to  authorize  the  construction  of  one  railroad 
across  another,  the  Supreme  Court  of  the  United  States  has 


188  U.  S.  385,  394,  23  Sup.  Ct.  463, 
47  L.  ed.  513  (ferry  franchise  is 
incorporeal  hereditament — taxation 
case);  Central  Pac.  Rd.  Co.  v.  Cal- 
ifornia, 162  U.  S.  91,  127,  16  Sup.  Ct. 
766,  40  L.  ed.  903,  per  Fuller,  C.  J. 
(is  property,  etc.,  a  case  of  taxation 
of  franchise);  Wilmington  v.  Reid,  13 
Wall.  (80  U.  S.  )  264,  268,  20  L.  ed. 
568,  per  Davis,  J.  (case  of  exemp- 
tion from  taxation);  Veazie  Bank  v. 
Fenno,  8  Wall.  (75  U.  S.)  533,  547, 
19  L.  ed.  482  ("  Franchises  are  prop- 
erty often  very  valuable  and  produc- 
tive"), Conway  v.  Taylor,  1  Black 
(66  U.  S.),  603,  17  L.  ed.  191  (ferry 
franchise  is  property,  and  as  sacred  as 
other  property);  West  River  Bridge 
Co.  v.  Dix,  6  How.  (47  U.  S.)  12  L. 
ed.  535  (property  held  by  an  incor- 
porated company  stands  upon  the 
same  footing  with  that  held  by  an  in- 
dividual, and  a  franchise  cannot  be 
distinguished  from  other  property); 
Bowman  v.  Wathen,  2  McLean  (U.  S. 
C.  C),  376,  Fed.  Cas.  No.  1,740  (is 
an  incorporeal  hereditament). 

Alabama:  Medical  &  Surgical  Soc. 
of  Montgomery  v.  Weatherly,  75  Ala. 
248,  253  (corporate  franchise  is  prop- 
erty, incorporeal  it  is  true,  but  never- 
theless valuable  in  the  eye  of  the  law) ; 
Horst  v.  Moses,  48  Ala.  129,  146  (an 
incorporeal  hereditament);  Stewart 
v.  Hargrove,  23  Ala.  429,  436  (fran- 
chise of  a  toll  bridge  is  properly  with- 
in the  bankrupt  law  and  passes  to 
the  assignee  in  bankruptcy). 

California:  City  of  South  Passa- 
dena  v.  Passadena  Land  &  Water  Co., 
(Cal.,  1908),  93  Pac.  490  (is  a  species 
of  real  property);  Stockton  Gas  & 
Electric  Co.  v.  San  Joachin  County, 
148  Cal.  313,  83  Pac.  54  (is  incorporeal 


hereditament;  real  estate  in  nature  of 
an  easement);  Oakland  R.  Co.  v.  Oak- 
land, Brooklyn  &  Fruit  Vale  Rd. 
Co.,  45  Cal.  365,  373,  13  Am.  Rep. 
181  (has  legal  character  of  estate  in 
property);  People  v.  Duncan,  41  Cal. 
507,  511  (franchise  to  construct  turn- 
pike road  and  collect  tolls  is  personal 
trust  reposed  in  grantee  and  is  not 
assignable  except  with  consent  of 
granting  party);  California  State 
Teleg.  Co.  v.  Alta  Teleg.  Co.,  22  Cal. 
398,  422  (is  in  nature  of  vested  right 
of  property  subject  to  conditions); 
San  Joaquin  &  Kings  River  Canal  Irr. 
Co.  v.  Merced  County,  2  Cal.  App. 
593,  84  Pac.  285  (is  property  subject 
to  taxation). 

Delaware :  Wilmington  &  Reading 
R.  Co.  v.  Downward  (Del.,  1888),  4 
Atl.  720,  723  (is  property  and  can- 
not be  wantonly  or  of  whim  be  taken 
away  by  legislative  act  and  trans- 
ferred to  another). 

Florida:  Gibbs  v.  Drew,  16  Fla. 
147,  26  Am.  Rep.  700  (are  incor- 
poreal hereditaments  of  intangible 
nature  not  embraced  within  terms, 
lands  and  tenements  in  act  regulating 
urdawful  detainer). 

Georgia:  Averett  v.  Brady,  20  Ga. 
523,  529  (ferry  right  is  incorporeal 
hereditament.  It  grows  out  of  the 
soil  and  may  be  granted). 

Idaho:  Evans  v.  Kroutinger,  9 
Ida.  153,  72  Pac.  882  (is  an  incor- 
poreal hereditament  which  may  be 
voluntarily  transferred — question  of 
right  to  transfer  discussed,  however). 
Illinois:  Dundy  v.  Chambers,  23 
111.  369  (ferry  franchise  is  real  estate, 
transferrable  only  in  accordance  with 
statutory  provisions). 

Iowa:  Lippincott  v.  Allander,  27 

81 


§  26 


NATURE   OF   FRANCHISE 


declared  that:  "The  grant  of  a  franchise  is  of  no  higher  order, 
and  confers  no  more  sacred  title  than  a  grant  of  land  to  an 


Iowa,  460,  1  Am.  Rep.  299  (ferry 
franchise  is  included  in  the  general 
denomination  of  incorporeal  heredita- 
ments, a  term  used  to  distinguish  one 
of  the  different  kinds  of  things  real). 

Kentucky:  Dufour  v.  Stacey,  90 
Ky.  288,  296,  29  Am.  St.  Rep.  374, 
14  S.  W.  48  (ferry  franchise  is  prop- 
erty alienable  and  descendable  and  a 
property  right  of  which  the  legisla- 
ture has  no  power  to  divest  the 
owner);  Frankfort,  Lexington  & 
Versailles  Turnpike  Co.  v.  Common- 
wealth, 82  Ky.  386,  388,  6  Ky.  L. 
Rep.  391,  392  (the  term  "property" 
in  its  broad  sense  includes  even  a 
franchise). 

Louisiana:  Maestri  v.  Board  of  As- 
sessors, 110  La.  157,  528,  529,  34  So. 
658  (is  taxable  property);  State  v. 
Morgan,  28  La.  Ann.  482,  493 
(franchises  are  incorporeal  heredita- 
ments known  as  a  species  of  property, 
as  well  as  any  estate  in  lands,  per 
Ludeling,  C.  J.,  in  dissenting  opinion, 
a  case  of  exemption  from  taxation 
and  construction  of  charter  and  right 
to  transfer). 

Maryland:  Jacob  Tome  In~t.  of 
Port  Deposit  v.  Crothers,  87  Md.  569, 
585,  40  Atl.  261  (a  vested  right  pecul- 
iar in  its  nature — a  quasi  property); 
Baltimore  &  Fredericktown  Turn- 
pike Road  v.  Baltimore,  Catonsville 
&  Ellicotts  Mills  Pass.  Rd.  Co.,  81 
Md.  247,  255,  31  Atl.  854  (fran- 
chise or  corporate  right  to  acquire 
land  by  right  of  eminent  domain  is 
an  incorporeal  hereditament,  not  a 
legal  title  to  the  land  itself). 

Michigan:  Billings  v.  Breinig,  45 
Mich.  65,  70,  7  N.  W.  722  (fran- 
chise of  keeping  rope  ferry  is  property 
possessing  valuable  incidents  of  other 

82 


species  of  property  and  transferrable 
subject  to  conditions  lawfully  im- 
posed). 

Minnesota:  McRoberts  v.  Wash- 
burne,  10  Minn.  23  (ferry  is  prop- 
erty entitled  to  protection  same  as 
other  property). 

Missouri:  Carroll  v.  Campbell,  108 
Mo.  550,  17  S.  W.  884  (ferry  fran- 
chise is  property  right);  Capital  City 
Ferry  Co.  v.  Cole,  etc.,  Transp.  Co., 
51  Mo.  App.  228,  234  (ferry  franchise 
is  property,  just  as  real  estate  or 
ordinary  chattels  are  property  and 
is  entitled  to  protection). 

Nebraska:  State  v.  Savage,  65 
Neb.  714,  91  N.  W.  716  ("property" 
includes  all  property  tangible  or  in- 
tangible). 

New  Jersey:  State  Board  of  As- 
sessors v.  Central  R.  Co.,  48  N.  J.  L. 
146,  283,  4  Atl.  578  (franchises  are 
undoubtedly  property  ana  as  such 
are  taxable). 

New  York:  Hatfield  v.  Strauss, 
189  N.  Y.  208,  219,  82  N.  E.  172, 
per  O'Brien  (a  franchise  is  property 
assignable,  taxable  and  transmis- 
sible); case  affirms  102  N.  Y.  Supp. 
934,  117  App.  Div.  671;  Mayor,  etc., 
of  New  York  v.  Starin,  106  N.  Y.  1, 
8  N.  Y.  St.  Rep.  655,  27  Wkly  Dig. 
124,  12  N.  E.  631  (a  ferry  franchise 
is  property,  an  incorporeal  heredita- 
ment, as  sacred  as  other  property); 
People  v.  Utica  Ins.  Co.,  15  Johns. 
(N.  Y.)  357,  386,  8  Am.  Dec.  243,  per 
Spencer,  J.  (is  a  species  of  incorporeal 
hereditament).  See  People  v.  Rob- 
erts, 158  N.  Y.  162,  167,  158,  52  N. 
E.  1102. 

North  Carolina:  Worth  v.  Wil- 
mington &  Weldon  Rd.  Co.,  89  N.  C. 
291,    301,    306,    45  Am.    Rep.   679 


NATURE   OF   FRANCHISE 


§  26 


individual;  and,  when  the  public  necessities  require  it,  the 
one  as  well  as  the  other,  may  be  taken  for  public  purposes 


(is  property — exemption  from  taxa- 
tion). 

Ohio:  Turnpike  Co.  v.  Parks,  50 
Ohio  St.  568,  576,  35  N.  E.  304  (is 
property  and  nothing  more — incor- 
poreal— cannot  be  distinguished 
from  other  property). 

Pennsylvania:  Shamokin  Valley 
Rd.  Co.  v.  Livermore,  47  Pa.  465, 
468,  per  Agnew,  J.  (land,  in  itself, 
is  not  a  franchise;  it  is  an  absolute 
tenement;  a  corporeal  thing.  Fran- 
chise is  an  incorporeal  hereditament). 

West  Virginia:  Mason  v.  Har- 
per's Ferry  Bridge  Co.,  17  W.  Va. 
396,  410,  417  (a  ferry  is  an  incor- 
poreal hereditament — it  is  private 
property  within  a  constitutional 
provision  that  private  property  shall 
not  be  taken  or  damaged  for  public 
use  without  just  compensation). 

Wisconsin:  Sellers  v.  Union  Lum- 
bering Co.,  39  Wis.  525,  527  (is  prop- 
erty— an  incorporeal  hereditament). 

Franchise  is  a  seventh  species  of 
incorporeal  hereditaments.  2  Black- 
stone's  Comm.  (Lewis's  ed.)  p.  506, 
*37;  (Hammond's  ed.)  67  [37];  (Wen- 
dell's ed.)  37  [38];  (Sharswood's  ed.) 
37;  (Chase's  ed.)  234  *37;  Taylor's 
Law  Gloss,  (ed.  1858)  p.  210. 

"  Besides  the  above  hereditaments 
there  are  others  *  *  *  called 
Franchises.  *  *  *  Such  are  every 
Liberty  or  Commodity  which  having 
their  Creation  at  first  by  Special 
Grant  of  the  King,  or  of  their  nature 
appertaining  to  him,  are  given  to  a 
common  Person  to  have  in  them 
some  Estate  of  Inheritance  or  for 
life,"  etc.  Finch's  Laws  of  Eng. 
125  [38].     See  §§  33-36,  herein. 

Property  in  its  broadest  and  most 
comprehensive    sense,    includes    all 


rights  and  interests  Jn  real  and  per- 
sonal property  and  also  in  easements, 
franchises  and  incorporeal  heredita- 
ments. Metropolitan  City  Ry.  Co.  v. 
Chicago  West  Division  Ry.  Co.,  87 
111.  317,  324. 

"It  is  clear  upon  authority  that 
the  franchise  of  a  corporation  is 
property,  and  as  such,  it  may  be  a 
proper  subject  of  taxation."  Porter 
v.  Rockford,  Rock  Island  &  St.  Louis 
Rd.  Co.,  76  III.  561,  573,  per  Schol- 
field,  J. 

A  franchise  "is  property  which 
may  be  transferred  by  sale  or  other- 
wise, and  it  will  descend  to  heirs  like 
other  property;  and  the  owner  has  the 
same  security  for  its  protection  under 
the  constitution,  as  has  the  owner 
of  any  other  property.  *  *  * 
As  this  is  a  species  of  property  derived 
by  grant  from  the  government,  it 
follows,  that  if  the  government  has 
no  power  to  make  the  grant,  either  be- 
cause it  is  contrary  to  public  policy, 
or  because  the  government  had  no 
title  to  the  thing  granted,  no  title 
will  be  conveyed  to  the  grantee." 
Norwich  Gas  Light  Co.  v.  The  Nor- 
wich City  Gas  Co.,  25  Conn.  19,  36, 
per  Hinman,  J. 

"A  franchise  is  an  incorporeal 
hereditament  known  as  a  species  of 
property,  as  well  as  any  estate  in 
lands.  It  is  property  which  may  be 
bought  and  sold,  which  will  descend 
to  heirs,  and  may  be  devised.  Its 
value  is  greater  or  less  according  to 
the  privilege  granted  to  the  pre]  rie- 
tors.  Enfield  Toll  Bridge  Co.  v. 
Hartford  &  New  Haven  Rd.  Co.,  17 
Conn.  40,  59,  per  Williams,  Ch.  J. 

Street  railroads.  "  A  franchise, 
both   at    common  law  and  by  New 

83 


§  26 


NATURE   OF   FRANCHISE 


on  making  suitable  compensation;  nor  does  such  an  exercise 
of  the  right  of  eminent  domain  interfere  with  the  inviolability 


York  statute,  is  real  estate,  being 
classified  as  an  incorporeal  heredita- 
ment,"  and  thus  applies  to  street 
railroads.  Thompson  v.  Schenectady 
Ry.  Co.,  124  Fed.  274,  278,  per  Ray, 
Dist.  J.  [citing  2  Wash.  R.  P.  C.  I., 
p.  291,  §  2,  note  I,  et  seq.;  3  Kent's 
Comm.  (12th  ed.),  p.  458;  Laws  N.  Y. 
1899,  p.  1589,  c.  712].  See  also  same 
case,  131  Fed.  577,  579,  per  Wal- 
lace, Cir.  J. 

Exclusive  right  vested  in  street  rail- 
road to  operate  line  in  city  is  prop- 
erty right  entitling  company  to  raise 
question  of  forfeiture  by  injunction 
suit.  Wilmington  City  Ry.  Co.  v. 
Wilmington  &  B.  S.  Ry.  Co.  (Del. 
Ch.),  46  Atl.  12. 

Gas  light  company.  A  franchise 
to  carry  on  its  business  in  a  town  and 
to  lay  conductors  in  the  streets  and 
highways  for  the  purpose  of  deliv- 
ering gas  is  property  of  which  the  gas 
light  company  cannot  be  divested 
except  for  cause  and  by  due  legal 
process.  People  ex  rel.  Woodhaven 
Gas  Co.  v.  Deehan,  153  N.  Y.  528,  47 
N.  E.  787,  rev'g.  11  App.  Div.  175. 

In  a  strict  sense  a  ferry  franchise 
is  not  real  estate,  but  it  is  held  that  it 
partakes  so  far  of  the  nature  of  real 
estate  that  it  may  be  partitioned  in 
the  same  manner  as  real  property,  and 
a  franchise  to  cross  a  river  and  receive 
tolls  is  so  connected  with  the  land 
on  each  side  of  the  river  as  a  part  of 
the  ferry  that  it  may  be  regarded  as  a 
part  of  the  land  for  the  purpose  of 
being  partitioned.  Bohn  v.  Harris, 
130  111.  525,  22  N.  E.  587. 

A  license  to  establish  a  ferry  is  the 
grant  of  an  incorporeal  hereditament 
subject  to  be  revoked  if  a  sufficient 
bond  is  not  executed  within  ten  days 

84 


after  such  requisition  is  made.  It  is 
an  interest  which  may  be  sold,  and 
will  descend  to  the  heir  as  an  incident 
of  the  fee.  "  At  common  law,  a 
ferry  was  an  incorporeal  heredita- 
ment, and  was  consequently  capable 
of  alienation,  and  would  pass  to  the 
heir  by  descent.  In  this  State,  the 
whole  matter  has  been  regulated  by 
statute;  so  that  we  must  therefore 
look  thereto  to  ascertain  what  rights 
appertain  to  the  grantee  of  a  ferry." 
Lewis  v.  Intendant  and  Town  Council 
of  Gainesville,  7  Ala.  85,  87,  per  Or- 
mond,  J. 

"There  can  be  no  doubt,  at  this 
day,  that  the  right  to  enjoy  a  ferry 
franchise  is  property,  the  full  use  of 
which  the  court  will  protect  by  appro- 
priate remedies,  one  of  which  is  in- 
junction, where  a  direct  pecuniary 
loss  ensues  to  plaintiff  by  the  un- 
authorized and  continuous  operation 
of  a  rival  ferry.  Cauble  v.  Craig,  94 
Mo.  App.  675,  69  S.  W.  49. 

In  the  Charles  River  Bridge  case 
the  court,  per  Story,  J.,  in  dissenting 
opinion,  said:  "This  franchise  is 
property;  is  fixed,  determinate  prop- 
erty. *  *  *  That  franchise,  so  far 
as  it  reaches,  is  private  property;  and 
so  far  as  it  is  injured,  it  is  the  taking 
away  of  private  property."  Charles 
River  Bridge  v.  Warren  Bridge,  11 
Pet.  (36  U.  S.)  420,  604,  618,  637, 
638,  643,  645,  9  L.  ed.  773. 

"  A  franchise  for  banking  is  in 
every  State  in  the  Union  recognized 
as  property."  Gordon  v.  Appeal 
Tax  Court,  3  How.  (44  U.  S.)  133, 150, 
11  L.  ed.  529,  per  Wayne,  J.  (a  case  of 
right  to  tax).  See  also  Home  Insur- 
ance Co.  v.  New  York,  134  U.  S. 
594,  601,  33  L.  ed.  1025,  10  Sup.  Ct. 


NATURE   OF   FRANCHISE  §§  27,  28 

of  contracts."  37  So  an  estate  in  a  franchise  vests  upon  the 
same  principle  as  estates  in  land,  being  equally  a  grant  of  a 
right  or  privilege  for  a  valuable  consideration.38 

§  27.  Same  Subject  Continued.— In  some  States  the  fran- 
chises and  privileges  of  a  corporation  are  declared  to  be  per- 
sonal property,  and  it  is  said  in  a  Federal  case  that:  "Accord- 
ing to  the  law  of  mo^t  States  this  franchise  or  privilege  of 
being  a  corporation  is  deemed  personal  property,  and  is  sub- 
ject to  separate  taxation."  39 

§  28.  Franchise  of  Members,  Shareholders  or  Corporators 
as  Property. — Each  individual  member  is  said  to  be  the 
owner  of  a  franchise,  and  his  privilege  of  membership  is,  there- 
fore, subject  to  protection  as  valuable.40  And  the  corporators 
have  a  property  in  the  franchise  of  a  private  civil  corporation 
of  which  they  cannot  be  deprived  without  due  process  of  law.41 

593,  per  Field,  J.,  citing  Monroe  Sav.  York,  143  U.  S.  305,  312,  36  L.  ed. 

Bk.  v.  City  of  Rochester,  37  N.  Y.  164,  12   Sup.  Ct.  403,  per   Field,  J. 

365,  369,  370.  (a    case    of    taxation    of    corporate 

37  Richmond,  Fredericksburg  &  franchises).  See  also  Home  Insurance 
Potomac  Rd.  Co.,  13  How.  (54  U.  S.)  Co.  v.  New  York,  134  U.  S.  594,  601, 
71,  83,  14  L.  ed.  55,  per  Grier,  J.  33  L.  ed.  1025,  10  Sup.  Ct.  593,  per 

A    franchise    of    a    corporation    is  Field,  J.;  Bank  of  California  v.  San 

property  and  may  be  condemned  for  Francisco,  142  Cal.  276,  280,  75  Pac. 

public  use  by  virtue  of  the  power  of  832;  Monroe  Sav.  Bk.  v.  City  of  Roch- 

eminent  domain,  due  compensation  ester,  37  N.  Y.  365,  367,  per  Fullerton 

being  made  therefor.    Porter  v.  Rock-  J.;  State  v.  Anderson,  90  Wis.  550, 

ford,  Rock  Island  &  St.  Louis  Rd.  501,  63  N.  W.  746. 

Co.,  76  111.  561,  575.  "Medical     &     Surgical     Soc.     of 

38  State  v.  Real  Estate  Bank,  5  Montgomery  v.  Weatherly,  75  Ala. 
Pike  (5  Ark.),  595,  41  Am.  Dec.  509.  248,  253. 

"All  the  elementary  writers  treat        41  State  ex  rcl.  Waring  v.  Georgia 

Of  franchises  as  real  property,  though  Medical  Soc,  38  Ga.  608,  626,  95  Am. 

incorporeal   in   their  nature.     Chan-  Dec.   408.      The   court,   per   Brown, 

ccllor    Kent,    in    his    commentaries,  C.    J.,    said:    "When    the   voluntary 

says  that   an  estate   in    a  franchise  society  accepted  the  charter,  it    be 

and  an  estate  in  land  rest  upon  the  came  a  private,  civil  corporation,  and 

same     principles."        Randolph     v.  the   corporators   then    in    being   ac- 

Larned,  27   N.  J.  Eq.  557,   561,   per  quired  a  property  in  the  franchise, 

Green,  J.  and  every  person  who  has  since  be- 

39  Horn  Silver  Mining  Co.  v.  New  come   a   corporator   has   acquired   a 

85 


§  2S  NATURE    OF   FRANCHISE 

In  a  Kentucky  case  the  legislature  by  statute  42  incorporated 
a  company  to  construct  a  railroad  from  Lexington  to  the  Ohio 
River,  giving  to  said  corporation  perpetual  succession,  and 
the  power  to  raise  funds  by  subscription  in  shares,  to  purchase 
ground  for  a  railway,  and  for  the  erection  of  suitable  buildings 
for  the  safe-keeping  of  articles  received  for  transportation, 
and  for  shops  for  the  accommodation  of  the  company,  cars, 
vehicles,  etc.,  and  to  charge  toll,  and  make  a  dividend  of  the 
profits  among  the  shareholders  according  to  the  amount  of 
stock  held  by  each.  It  was  determined  that  the  right  con- 
ferred on  each  shareholder  was  unquestionably  an  incorporeal 
hereditament.  The  court  said:  "It  is  a  right  of  perpetual 
duration;  and  though  it  springs  out  of  the  use  of  personalty, 
as  well  as  lands  and  houses,  this  matters  not.  It  is  a  fran- 
chise which  has  ever  been  classed  in  that  class  of  real  estate 
denominated  an  incorporeal  hereditament.  An  annuity, 
though  only  chargeable  upon  the  person  of  the  grantor  is  an 
incorporeal  hereditament;  and  though  the  owner's  security 
is  merely  personal,  yet  he  may  have  a  real  estate  in  it.43  Much 
less  can  it  be  doubted  that  a  franchise  created  by  act  of  in- 
like  property.  The  property  which  easement  and  the  like.  Blackstone 
the  corporator  acquires  is  not  visible,  says,  volume  2,  page  37,  it  is  likewise 
tangible  property;  but  it  is  none  the  a  franchise  for  a  number  of  persons 
less  property  because  it  is  invisible  to  be  incorporated  and  subsist  as  a 
and  intangible.  It  is  not  a  corporeal  body  politic,  with  power  to  maintain 
hereditament;  but  it  is  incorporeal,  perpetual  succession,  and  to  do  other 
Blackstone,  in  his  commentaries,  vol-  corporate  acts,  and  each  individual 
ume  2,  page  21,  says:  That  incorpo-  member  of  such  corporation  is  also 
real  hereditaments  are  divided  into  said  to  have  a  franchise  or  freedom, 
ten  sorts;  one  of  these  consists  of  fran-  We  think  it  well  settled  by  these  and 
chises.  *  *  *  The  law  books  are  other  authorities,  that  a  corporator 
full  of  the  doctrine  that  persons  may  in  a  private  civil  corporation  has  a 
have  a  property  in  incorporeal  here-  property  in  the  franchise,  of  which 
ditaments,  franchises,  etc.  Property,  he  cannot  be  deprived  without  due 
says  Bouvier,  volume  2,  page  381,  is  process  of  law." 
divided  into  corporeal  and  incorpo-  See  Bank  of  California  v.  City  & 
real.  The  former  comprehends  such  County  of  San  Francisco,  142  Cal. 
property  as  is  perceptible  to  the  276,  64  L.  R.  A.  918,  75  Pac.  832. 
senses,  as  lands,  houses,  goods,  mer-  *2  Approved  Jan'y  27,  1830.  Ses- 
chan-dise  and  the  like;  the  latter  con-  sion  Acts  1829,  126. 
sists in  legal  rights,  as  choses  in  action,        "  Citing  2  Blackstone's  Comm.  40. 

86 


NATURE    OF    FRANCHISE 


§  29 


corporation,  unlimited  in  duration,  and  springing  out  of  the 
combined  use  of  lands  and  personalty,  should  be  denominated 
and  classed  as  real  estate."  44  So  in  the  Dartmouth  College 
case  it  is  declared  that  the  franchise  of  a  corporation  and  that 
of  its  members,  "like  other  franchises,  is  an  incorporeal  here- 
ditament, issuing  out  of  something  real  or  personal,  or  con- 
cerning or  annexed  to,  and  exercisable  within,  a  thing  corpo- 
rate. To  this  grant,  or  this  franchise,  the  parties  are  the 
king  and  the  persons  for  whose  benefit  it  is  created,  or  trustees 
for  them.    The  assent  of  both  is  necessary."  45 

§  29.  Corporate  Franchises  are  Legal  Estates,  not  Mere 
Naked  Powers. — In  respect  to  corporate  franchises,  they 
are,  properly  speaking,  legal  estates  vested  in  the  corporation 
itself  as  soon  as  it  is  in  esse.  They  are  not  mere  naked  powers 
granted  to  the  corporation,  but  powers  coupled  with  an  in- 
terest, which  vest  in  the  corporation  by  virtue  of  its  charter. 
The  property  of  the  corporation  vests  upon  the  possession  of 
its  franchises;  and  whatever  may  be  thought  as  to  the  cor- 
porators, it  cannot  be  denied  that  the  corporation  itself  has 
a  legal  interest  in  such  franchises.  It  may  sue  and  be  sued 
for  them.46 


44  Price  v.  Price's  Heirs,  6  Dana 
(36  Ky.),  107,  citing  2  Blackstone's 
Comm,  20-22,  37-38;  Co.  Litt.  19, 
20;  Com.  Dig.,  title  "Franchise." 

45  Dartmouth  College  v.  Wood- 
ward, 4  Wheat.  (17  U.  S.)  518,  657, 
4  L.  ed.  629,  per  Washington,  J.,  Id., 
700,  per  Story,  J. 

40  Dartmouth  College  v.  Woodward, 
4  Wheat.  (17  U.  S.)  518,  700,  4  L.  ed. 
629,  per  Story,  J.;  Hamilton  Mfg.  Co. 


v.  Massachusetts,  6  Wall.  (73  U.  S.) 
632,  638,  18  L.  ed.  904,  per  Clifford, 
J.;  Society  for  Savings  v.  Corte,  6 
Wall.  (73  U.  S.)  594,  606,  18  L.  ed. 
897,  per  Clifford,  J.  (a  case  of  impo- 
sition of  franchise  tax);  Bank  of  Cal- 
ifornia v.  San  Francisco,  142  Cal. 
276,  281,  75  Pac.  832,  per  Angel- 
lotti,  J.  See  also  Commonwealth  v. 
St.-.ndard  Oil  Co.,  101  Pa.  119,  127 
(a  case  of  taxation). 


87 


§  30 


NATURE   OF   FRANCHISE   CONTINUED- 


CHAPTER  IV. 


NATURE   OF   FRANCHISE  CONTINUED — DISTINCTIONS. 


30.  Franchises   Essential   and  not 

Essential  to  Corporate  Exist- 
ence— "  Essentially  Corpo- 
rate Franchises." 

31.  "  Corporate    Powers  or  Privi- 

leges "  not  Franchises  Essen- 
tial to  Corporate  Existence. 

32.  Franchises    and     Powers — To 

What  Extent  Distinguished. 

33.  Franchise  to  Be  Separate  and 

Distinct  from  Property  or 
Franchise  Which  Corpora- 
tion May  Acquire. 

34.  Same  Subject  Continued. 

35.  Same       Subject  —  "  Personal 

Franchise"  Distinguished 
from   Property   Franchise. 

36.  Franchise  Differs  from  Grant 

of  Land — Easement — Free- 
hold. 

37.  General     Creative     Franchise 

and  Special  Franchise  Dis- 
tinguished. 

38.  Franchises   Belonging  to  Cor- 

porators and  Those  Belong- 
ing to  Corporation  Distin- 
guished. 

39.  franchise  to  Be  and  to  Carry 

on  Business  Distinguished — 
"  Corporate  Franchise  or 
Business." 


§  40.  Franchise  Distinguished  from 
Means  Employed  in  Exer- 
cising it. 

41.  Charter     and     Franchise — To 

What  Extent  Distinguished. 

42.  Charter    and    Franchise    Con- 

tinued— How  Extent  of  Pow- 
ers Is  Ascertained. 

43.  Charter    and    Franchise    Con- 

tinued— Where  Franchise 
Does  Not  Take  Effect  Before 
Actual  Formation  of  Cor- 
poration. 

44.  Charter    and    Franchise    Con- 

tinued— Charter  Rights  and 
Privileges  Derived  Through 
Organization  —  "Additional 
Franchise  or  Privilege"  Ac- 
quired after  Incorpora- 
tion. 

45.  Charter    and    Franchise    Con- 

tinued— Distinction  Exists. 

46.  Charter    and    Franchise    Con- 

tinued— "Charter"  as  Syn- 
onymous with  "Franchise." 

47.  Whether  Certain  Grants  Con- 

stitute a  License,  Privilege, 
Permission,  Gratuity  or  Con- 
tract; and  not  a  Franchise 
— Distinction. 

48.  Same  Subject  Continued. 


§  30.  Franchises  Essential  and  not  Essential  to  Corporate 
Existence — "  Essentially  Corporate  Franchises." — It    may 

be  stated  generally  that  a  marked  distinction  exists  between  a 
88 


DISTINCTIONS 


§  30 


franchise  which  is  essential  to  the  creation  and  continued  ex- 
istence of  a  corporation,  to  its  right  to  exist  as  an  artificial 
being,  and  inseparable  from  it,  and  other  franchises,  rights  and 
privileges,  subsidiary  in  their  nature,  which  it  possesses  and 
may  exercise  under  and  by  virtue  of  the  franchise  to  be  and  to 
the  enjoyment  of  which  corporate  existence  is  not  a  prerequi- 
site.1 So  it  is  declared  that:  "The  essential  properties  of  cor- 
porate existence  are  quite  distinct  from  the  franchises  of  the 
corporation.  The  franchise  to  be  is  distinct  from  a  franchise 
as  a  corporation  to  maintain  and  operate  a  railway.  The  latter 
may  be  mortgaged  without  the  former,  and  may  pass  to  a  pur- 


1  As  to  primary  and  secondary  fran- 
chises of  corporations,  see  §  8,  herein. 

"The  Western  North  Carolina 
Railroad  Company  was  created  a 
corporation  by  the  legislature  of  that 
State  in  the  exercise  of  a  sovereign 
power.  This  sovereign  power  made 
of  several  persons  a  single  entity, 
and  conferred  on  them  the  franchise 
of  acting  as  one  person.  This  new 
person,  creature  of  the  law,  and  ex- 
isting through  the  grace  and  at  the 
will  of  the  sovereign,  was  then  clothed 
with  certain  powers,  and  granted 
certain  privileges.  These  are  its 
franchises.  First,  the  franchise  of 
existence  as  a  corporation, — its  life 
and  being.  This  is  inseparable  from 
it.  When  it  parts  with  it, — with 
this  franchise, — it  parts  with  its 
life.  But,  with  respect  to  the  other 
franchises  with  which  it  has  been 
clothed, — the  right  and  privilege  to 
act  as  a  common  carrier,  to  carry 
passengers  and  goods,  to  charge  tolls, 
to  operate  a  railroad, — these  it  en- 
joys as  an  individual  could,  and 
they  are  not  inseparable  from  its  ex- 
istence. They  are  its  property.  A 
franchise  to  be  a  corporation  is  dis- 
tinct from  a  franchise,  as  a  corpo- 
ration to  maintain  and  operate  a  rail- 
road."    Central  Trust  Co.  of  N.  Y. 


v.  Western  North  Carolina  Rd.  Co., 
89  Fed.  24,  31,  per  Simonton,  Cir.  J. 

"The  right  to  be  a  corporation  is 
itself  a  separate,  distinct  and  inde- 
pendent franchise,  complete  within 
itself,  and  a  corporation  having  been 
created,  enjoying  this  franchise, 
may  receive  a  grant  and  enjoy  other 
distinct  and  independent  franchises, 
such  as  may  be  granted  to  and  en- 
joyed by  natural  persons;  but  be- 
cause it  enjoys  the  latter  franchises, 
they  do  not,  therefore,  constitute  a 
part  of  the  distinct  and  independent 
essential  franchise, — the  right  to  be 
a  corporation.  They  are  additional 
franchises  given  to  the  corporation, 
and  not  parts  of  the  corporation  it- 
self,— not  of  the  essence  of  the  cor- 
poration." Southern  Pacific  Rd. 
Co.  v.  Orton,  32  Fed.  457,  474,  per 
Sawyer,  J. 

"  By  the  term  '  corporate  franchise 
a  business'  as  here  used  *  *  * 
is  meant  *  *  *  the  right  or 
privilege  given  by  the  State  to  two 
or  more  persons  of  being  a  corpo- 
ration, that  is,  of  doing  business  in  a 
corporate  capacity,  and  not  the  privi- 
lege or  franchise  which,  when  in- 
corporated, the  company  may  exor- 
cise." Cobb  v.  Commissioners  of 
Durham  County,  122  N.  C.  307,  309, 

89 


§   30  NATURE   OF   FRANCHISE   CONTINUED — 

chaser  at  a  foreclosure  sale.2  And  a  franchise  to  take  tolls, 
which  comes  into  existence  by  grant,  not  directly  from  the 
State,  but  from  a  local  board,  is  distinct  from  a  corporate 
franchise.  So  a  franchise  to  be  a  corporation  may  continue  to 
exist,  though  any  particular  franchise  annexed  to  it  may  have 
been  surrendered  or  forfeited.3  In  a  California  case  it  is  said: 
"This  corporate  franchise — viz.,  the  franchise  to  be  and  exist 
as  a  corporation  for  the  purposes  specified  in  the  articles  of 
incorporation — appertains  to  every  corporation,  for  whatever 
purpose  it  may  be  formed,  and  there  is  no  distinction  in  this 
regard  between  the  banking  or  grocery  corporation,  and  the 
railroad,  water  or  gas  corporation.  The  right  to  engage  in 
every  such  business  is  open  to  all  citizens,  independent  of  any 
grant  from  the  sovereign,  but  it  is  available  to  no  one  to  con- 
duct any  such  business  through  the  agency  of  a  corporation 
without  such  grant.  Certain  occupations  are,  however,  of 
such  a  nature  that  various  privileges  conferrable  only  by  the 
sovereign  power  are  convenient,  and  in  most  cases  absolutely 
essential,  to  the  successful  maintenance  of  the  business  to  be 
carried  on,  whether  it  be  carried  on  by  a  corporation  or  by  an 
individual — such,  for  instance,  as  the  right  to  use  public  high- 
ways. Such  rights  and  privileges  are  also  known  as  franchises, 
but  they  constitute  a  class  entirely  distinct  from  and  inde- 
pendent of  the  corporate  franchise."  4  Again,  what  have  been 
called  "Essentially  corporate  franchises"  are  those  without 
which  the  corporation  could  not  exist,  and  which  are,  in  their 
nature,  incapable  of  being  vested  in,  or  enjoyed  by,  a  natural 
person — such  as  the  right  or  franchise  of  being  a  corporation, 
of  having  a  corporate  succession,  etc.  But  the  franchise  of 
taking  private  property,  or  the  right  of  eminent  domain,  is 
not  perhaps  necessarily  a  corporate  right.    So  the  franchises  to 

30  S.  E.  338,  per  Montgomery,  J.,  3  Grand    Rapids    Bridge    Co.     v. 

quoting  Home  Ins.  Co.  v.  New  York,  Prange,  35  Mich.  400,  405,  24  Am. 

134  U. .  S.  594,  599,  33  L.  ed.  1025,  Rep.  585. 

10  Sup.  Ct.  593,  per  Field,  J.  4  Bank  of  California  v.  San  Fran- 

2  Memphis  &  Little  Rock  Rd.  Co.  cisco,  142  Cal.  276,  280,  75  Pac.  832, 

v.  Commissioners,  112  U.  S.  609,  619,  per  Angellotti,  J. 
28  L.  ed.  837,  5  Sup.  Ct.  299 

90 


DISTINCTIONS  §§31,32 

build,  own  and  manage  a  railroad,  and  to  take  tolls  thereon, 
are  not  necessarily  corporate  rights;  they  are  capable  of  ex- 
isting and  being  enjoyed  by  natural  persons.  The  franchise 
of  maintaining  a  plank  road  and  taking  tolls,  is  not  necessarily 
a  corporate  franchise,  more  than  that  of  a  ferry.5 

§31.  "  Corporate  Powers  or  Privileges"  not  Franchises 
Essential  to  Corporate  Existence. — In  granting  franchises  to 
street  railway  corporations  to  use  and  occupy  city  streets,  a 
common  council  may  exercise  delegated  legislative  powers,  but 
they  are  not  grants  of  "corporate  powers  or  privileges"  under 
a  constitution  prohibiting  the  enactment  of  any  special  or 
private  law  granting  corporate  powers  or  privileges.  They  are 
not  franchises  essential  to  corporate  existence,  granted  as 
part  of  the  organic  act  of  incorporation,  but  are  such  as  may 
be  sold  and  assigned,  if  assignable,  or  lost  by  forfeiture,  and 
yet  not  affect  the  corporate  existence  of  the  street  railway. 
It  is  said,  however,  that  some  confusion  undoubtedly  exists 
.in  the  cases  upon  this  subject  and  such  franchises  have  been 
sometimes  called  "corporate  franchises, "  but  that  this  does  not 
affect  the  true  character  of  the  franchises.6 

§  32.  Franchises  and  Powers — To  What  Extent  Distin- 
guished.— A  distinction  is  made  in  a  Minnesota  case  between 

5  Joy  v.  Jackson  &  Michigan  Plank  corporate  charters.  This  is  implied 
Road  Co.,  11  Mich.  155,  164,  165,  not  only  by  the  word  grant,  but  also 
per  Christiancy,  J.  by  the  word  corporate.     A  franchise 

6  Linden  Land  Co.  v.  Milwaukee  is  not  essentially  corporate;  and  it 
Elect.  Ry.  &  Light  Co.,  107  Wis.  is  not  the  grant  of  franchise  which 
493,  513,  514,  83  N.  W.  858,  per  is  prohibited,  but  of  corporate  fran- 
Winslow,  J.  chise;  that  is,  as  we  understand  it, 

"We  feel  bound  to  hold,  and  find  franchise  by  act  of  incorporation." 
n  >  difficulty  in  holding,  the  phrase  Attorney  Gen'l  v.  Chicago  &  North- 
in  the  amendment"  (of  a  state  con-  western  Rd.  Co.,  35  Wis.  425,  560, 
stitution  prohibiting  the  legislature  per  Ryan,  C.  J.,  quoted  in  Brady  v. 
from  passing  special  laws,  amongst  Moulton,  61  Minn.  185,  186,  per 
other  purposes,  for  corporate  powers  Mitchell,  J.  (holding  that  a  special 
or  privileges,  except  to  cities)  "  to  law  authorizing  a  city  to  issue  bonds 
grant  corporate  powers  or  privileges,  for  waterworks  is  not  a  grant  of 
to  mean  in  principio  donationis,  and  "corporate  powers  or  privileges  un- 
equivalent  to  the  phrase,  to  grant  der    the    state     constitutional    pro- 

91 


§   32  NATURE   OF   FRANCHISE   CONTINUED — 

franchises  and  powers,  and  it  is  said  that  in  order  to  consti- 
tute a  franchise  the  right  possessed,  the  privilege  or  immunity 
of  a  public  nature  must  be  such  as  to  require  the  express  per- 
mission of  the  sovereign  power,  through  legislative  authoriza- 
tion or  grant,  to  warrant  its  exercise;  that  the  right,  whether 
existing  in  a  natural  or  artificial  person,  to  carry  on  any  par- 
ticular business  is  not  necessarily  a  franchise;  that  a  business 
which  corporations  are  organized  to  carry  on  under  a  statute 
are  powers  and  not  franchises  where  such  right  is  one  pos- 
sessed by  all  citizens  who  choose  to  engage  in  it  without  any 
legislative  grant;  and  that  the  only  franchise  which  corpora- 
tions so  organized  possess  is  the  general  franchise  to  be  or  exist 
as  a  corporate  entity  so  that  if  they  engage  in  any  business  not 
authorized  by  the  statute  it  is  ultra  vires  or  in  excess  of  their 
powers,  but  not  a  usurpation  of  franchises  not  granted  nor 
necessarily  a  misuser  of  those  granted.7  It  is  also  declared, 
however,  that  the  term  power  is  in  a  sense  synonymous  with 
franchise.  Thus,  the  capacity  or  liability  to  incur  obligations 
in  conducting  the  legitimate  business  of  banking  is  said  not  to 
be  a  power  in  any  just  sense.8  So  it  is  asserted  that:  "The 
various  powers  conferred  on  corporations  are  franchises;  the 
execution  of  a  policy  of  insurance  by  an  insurance  company, 
and  the  issuing  of  a  bank  note  by  an  incorporated  banking 
company  are  the  exercise  of  franchises;  without  legislative 
authority  neither  could  be  lawfully  done  by  a  corporation."  9 
And  in  a  case  in  the  Federal  Supreme  Court  it  is  said  that: 
"The  franchise  to  be  a  corporation  is  distinguished  from  the 
franchise  to  exercise  as  a  corporation  the  banking  powers 
named  in  this  charter."  10    It  may  be  stated,  in  this  connec- 

vision  substantially  the  same  as  that  distinction    between    franchises   and 

last  above  considered).  powers,  in  substance  same  as  the  last 

'  State     v.     Minnesota     Thresher  above  cited  case,  but  citing  no  cases. 

Mfg.  Co.,  40  Minn.  213,  225,  226,  41  8  Curtis  v.   Leavitt,    15  N.  Y.   9, 

N.   W.    1020,   3  L.   R.   A.   510,   per  170,  per  Shankland,  J. 

Mitchell,  J.  9  State    v.    Mayor,    etc.,    of    New 

Examine  Wait  on  Operations  Pre-  York,  3  Duer  (N.  Y.),  119,  144,  per 

liminary  to  Construction  in  Engineer-  Bosworth,  J. 

ing    &     Architecture,    §  862,    as    to  10  Mercantile  Bank  v.   Tennessee, 

92 


DISTINCTIONS  §    33 

tion,  that  all  the  functions  of  a  corporation  are,  in  one  sense 
franchises.  Thus,  the  right  to  hold  property  in  the  corporate 
name,  to  sue  and  be  sued  in  that  capacity,  to  have  and  to 
use  a  corporate  seal,  and  by  that  to  contract,  and  some  others, 
perhaps,  are  franchises,  which  constitute  the  very  definition 
of  a  corporation.  And  whenever  and  wherever  the  corpora- 
tion is  recognized,  for  any  purpose,  the  existence  and  exercise 
of  these  franchises  must  also  be  recognized.11 

§  33.  Franchise  to  Be  Separate  and  Distinct  from  Property 
or  Franchise  Which  Corporation  May  Acquire. — Corporations 
may  by  virtue  of  a  legislative  grant  of  a  franchise  obtain  or 
acquire  certain  property  essential  to  their  successful  opera- 
tions. Thus  an  electrical  company  which,  in  pursuance  of  a 
grant  of  a  right  by  the  proper  authorities  to  enter  upon  and 
occupy  streets  or  highways,  proceeds  to  the  construction  and 
erection  of  its  lines,  obtains  a  right,  partaking  of  the  nature  of 
an  easement  in  property,  of  which  it  cannot  be  deprived,  in 
the  absence  of  a  reservation  of  the  right  so  to  do.12    Again,  it  is 

161  U.  S.  160,  171,  40  L.  ed.  656,  16  was  irrevocable  after  acceptance,  un- 
Sup.  Ct.  466,  per  Peckham,  J.  (a  less  the  power  to  alter  or  revoke  was 
case  of  judicial  sale  of  franchises  of  reserved."  See  Pikes  Peak  Power 
a  corporation;  of  tax  exemption,  Co.  v.  City  of  Colorado  Springs,  105 
and  purchasers'  rights).  Fed.  1,  44  C.  C.  A.  33. 

11  State  v.  Boston,  Concord  &  Illinois:  Village  of  London  Mills 
Montreal  Rd.  Co.,  25  Vt.  433,  442,  v.  White,  208  111.  289,  70  N.  E.  313, 
per  Redfield,  Ch.  J.  aff'g   105   111.   App.    146;   People   v. 

12  United  States:  City  of  Morris-  Central  Illinois  Tel.  Co.,  192  111.  307, 
town    v.    East     Tennessee    Teleph.    61  N.  E.  428. 

Co.,  115  Fed.  304,  53  C.  C.  A.  132,  8  Kansas:    City  of  Baxter   Springs 

Am.    Elec.  Cas.  3.     The   court,    per  v.  Baxter  Springs  L.  &  P.  Co.,  64 

Lurton,  C.  J.,  said:  that  the  consent  Kan.  591,  68  Pac.  63,  8  Am.  Elec. 

of  the  municipal  authorities  "to  the  Cas.   125. 

occupancy  of   the   streets   by  poles  Michigan:     Mohan    v.    Michigan 

and  wires  of  the  telephone  company  Teleph.  Co..,  132  Mich.  242,  93  N.  W. 

for    the    purpose    of    maintaining    a  629,  8  Am.  Elec.  Cas.  38;  Michigan 

telephone  system  was  a  grant  of  an  Teleph.  Co.  v.  City  of  St.  Joseph,  121 

easement  in  the  streets  and  a  con-  Mich.  502,  80  N.  W.  383,  7  Am.  Elec. 

vcyance    of    an    estate    or    property  Cas.  1. 

interest,  which,  1  eing  in  a  large  sense  Minnesota:   City    of     Duluth  v. 

the  exercise  of  a  proprietory  or  con-  Duluth  Teleph.  Co.,  84  Minn.  486, 

tractual  right  rather  than  legislative,  87  N.  W.  1128,  8  Am.  Elec.  Cas.  136; 

93 


§   33  NATURE   OF   FRANCHISE   CONTINUED — 

declared  to  be  settled  law  that  when  in  pursuance  of  proper 
legislative  authority  a  grant  is  made  of  a  valid  franchise, 
right  or  privilege  to  use  or  occupy  a  public  street,  common, 
or  levee,  or  navigable  waters  adjacent  thereon,  for  a  public 
purpose,  such  as  the  construction  and  maintenance  of  wharves 
in  aid  of  commerce,  water  tanks  for  use  in  sprinkling  streets, 
telegraph  and  telephone  poles,  railway  tracks  and  the  like, 
and  the  grantee,  relying  upon  such  grant,  expends  money  in 
prosecuting  the  enterprise  he  thereby  acquires  the  property  in- 
terest or  right  of  which  he  cannot  be  deprived  except  under 
the  power  of  eminent  domain  and  upon  compensation  there- 
for. In  such  case  the  grantee  acquires  a  right  or  easement 
different  in  kind  from  that  enjoyed  by  the  general  public.13 
So  where  the  consents  of  abutting  owners  is  necessary  to  the 
use  of  streets  and  the  construction  of  an  electric  street  railway, 
property  rights  are  created,  by  such  valid  consents,  which 
cannot  be  abandoned  except  by  action  of  all  parties  interested, 
including  the  consent  of  the  State;  nor  can  the  rights  acquired 
under  such  consents  be  destroyed  by  the  action  of  a  receiver 
of  the  company  appointed  in  foreclosure  proceedings,  under 

Northwestern  Teleph.  Exch.  Co.  v.  9,  76  Pac.  347,  per  Bean,  J.,  citing 

Minneapolis,  81  Minn.  140,  83  N.  W.  1  Dillon,  Munc.  Corp.  (4th  ed.)  §§  110,, 

527,  7  Am.  Elec.  Cas.  168.  Ill,  29  Am.  &  Eng.  Ency.  of  Law 

New  Jersey:  Inhabitants  of  East  (1st  ed.),  69;  Portland  &  Willamette 

Orange  v.  Suburban  Elec.  L.  &  P.  Valley    Rd.    Co.    v.    Portland,     14 

Co.,  59  N.  J.  Eq.  563,  44  Atl.  628,  7  Oreg.  188,  12  Pac.  265,  58  Am.  Rep. 

Am.  Elec.  Cas.  37.  299;  Savage  v.  Salem,  23  Oreg.  381, 

See  §§  25-27,  herein.  31  Pac.  832,  24  L.  R.  A.  787,  37  Am. 

"  The  right  to  use  the  public  streets  St.  Rep.  688;  City  of  Des  Moines 
or  highways  is  a  property  right  and  v.  Chicago,  R.  I.  &.  P.  R.  Co.,  41 
has  an  assessable  value.  Western  Iowa,  569;  Phillipsburg  Elect.  Light- 
Union  Teleg.  Co.  v.  City  of  Omaha  ing,  Heating  &  Power  Co.  v.  Phillips- 
(Neb.,  1905),  103  N.  W.  84,  85,  86,  burg,  66  N.  J.  L.  505,  49  Atl.  445; 
per  Letton,  O,  quoting  from  People  Langdon  v.  Mayor,  etc.,  of  New 
ex  rel.  Retsof  Min.  Co.  v.  Priest,  York,  93  N.  Y.  129;  Williams  v. 
77  N.  Y.  Supp.  382,  75  App.  Div.  Mayor,  etc.,  of  New  York,  110  N.  Y. 
131,  case  aff'd  (Mem.)  175  N.  Y.  569,  18  N.  E.  435.  See  also  Wyan- 
511,  67  N.  E.  1088  (which  determines  dotte  Elec.  L.  Co.  v.  City  of  Wyan- 
what  franchises  are  taxable  under  dotte,  124  Mich.  43,  82  N.  W.  821, 
the  statute).  7  Am.  Elec.  Cas.  43. 

13  Mead  v.   Portland,  45  Oreg.   1, 

94 


DISTINCTIONS  §    33 

an  order  limiting  his  authority  to  the  management,  operation 
and  protection  of  its  property,  in  abandoning  that  portion  of 
the  road  to  which  such  consents  attached ;  nor  has  the  city  any 
power  to  authorize  such  abandonment.14     But  where  it  is 
provided  by  ordinance  that  telegraph,  telephone  and  electric 
light  companies  may  lay  wires  under  the  streets  of  a  city,  and 
that  such  company  shall  remove  its  conduits  whenever  di- 
rected so  to  do  by  the  city  council,  the  company  does  not  ac- 
quire a  right  of  property  in  the  street  which  cannot  be  dis- 
continued and  appropriated  to  another  public  use  without 
compensation,  but  only  a  right  to  use  the  streets  in  the  man- 
ner specified,  which  is  subject  to  revocation,  and  a  statute 
providing  for  the  removal  of  electrical  appliances  from  the 
streets  and  that  the  companies  shall  have  the  right  either  to 
remove  the  same  or  to  put  them  in  underground  conduits 
which  are  to  be  constructed  under  regulations  does  not  con- 
fer a  franchise  which  includes  an  individual  right  of  property 
in  the  public  easement,  and  in  such  a  case  the  right  so  reserved 
may  be  exercised  either  by  the  municipality  or.  by  the  legis- 
lature.15   And  it  is  also  decided  that  though  the  right  of  an 
electrical  company  to  use  the  streets  for  its  purposes,  is  recog- 
nized as  within  the  public  easement,  which  was  paid  for  in 
assessing  damages  to  the  owner  when  the  street  was  opened, 
such  company  acquires  no  property  rights  in  the  streets  by 
reason  of  the  fact  that  it  is  authorized  to  construct  its  conduits 
therein  by  statute  or  ordinances  which  clearly  do  not  purport 
to  convey  private  rights  of  property.18 

14  Paige  v.  Schenectady  Ry.  Co.  l8  New  England  Teleph.  &  Teleg. 
(Thompson  v.  Same),  178  N.  Y.  102,  Co.  v.  Boston  Terminal  Co.,  182 
70  N.  E.  213,  case  reverses  82  N.  Y.  Mass.  397,  65  N.  E.  835,  8  Am.  Elec. 
Supp.  192,  84  App.  Div.  91,  and  Cas.  132.  In  this  case  the  court,  per 
Whitmyre  v.  Same,  84  App.  Div.  Knowlton,  J.,  said:  "In  this  Com- 
91,  but  affirms  Lansing  v.  Same,  84  mon wealth,  on  the  laying  out  or 
App.  Div.  91;  Van  Epps  v.  Same,  construction  of  a  highway  or  public 
84  App.  Div.  91;  Beatty  v.  Same,  street,  the  fee  of  the  land  remains  in 
84  App.  Div.  91,  see  131  Fed.  577.  the   landowner,   and   the   public   ac- 

15  Boston  Electric  Light  Co.  v.  quire  an  easement  in  the  street  for 
Boston  Terminal  Co.,  184  Mass.  5G6,  travel.  *  *  *  The  rights,  in 
69  N.  E.  346,  8  Am.  Elec.  Cas.  50.  t  lie  streets  which  are  so  exercised  or 

95 


§  34 


NATURE  OF  FRANCHISE  CONTINUED — 


§  34.  Same  Subject  Continued. — It  is  apparent,  therefore, 
from  what  is  above  stated,  that  a  corporation  in  the  exercise 
of  its  franchise  may  or  may  not  obtain  certain  property  rights 
according  to  the  nature  of  the  franchise  or  character  of  the 
grant.  It  also  appears,  as  we  have  stated  elsewhere,  that  the 
right  to  acquire  property  is  declared  to  be  a  franchise.17  But 
the  right  and  privilege,  or  what  is  termed  the  franchise  of 
being  a  corporation,  is  of  value  to  its  members,  and  is  considered 
as  property  separate  and  distinct  from  the  property  or  fran- 
chises which  the  corporation  may  itself  acquire  subsequent 
to  its  incorporation  by  the  use  of  its  franchise.18    So  the  corpo- 


enjoyed  are  not  private  rights  of 
property,  but  are  part  of  the  public 
rights  which  are  shared  in  common." 

Rails  and  other  materials  of  a  street 
railway  company  embedded  in  the 
surface  of  the  public  streets  of  a  city 
remain  personal  property  and  may 
be  disposed  of  as  such.  French  v. 
Jones,  191  Mass.  522,  526,  78  N.  E. 
118. 

17  See  §  12,  herein. 

"Central  Pac.  R.  Co.  v.  Cali- 
fornia, 162  U.  S.  91,  127,  16  Sup.  Ct. 
766,  40  L.  ed.  903,  per  Fuller,  C.  J. 
(a  case  of  taxation  of  franchise); 
Horn  Silver  Mining  Co.  v.  New 
York,  143  U.  S.  305,  312,  36  L.  ed. 
164,  12  Sup.  Ct.  403,  per  Field,  J. 
(a  case  of  taxation  of  corporate  fran- 
chises); Bank  of  California  v.  San 
Francisco,  142  Cal.  276,  280,  64  L. 
R.  A.  918,  75  Pac.  832,  per  Angellotti, 
J.;  Consolidated  Gas  Co.  v.  Balti- 
more City,  101  Md.  541,  545-548,  per 
McSherry,  C.  J.;  Lumberville  Bridge 
Co.  v.  Assessors,  55  N.  J.  L.  529, 
535,  26  Atl.  711,  25  L.  R.  A.  134, 
per  Garrison,  J.  See  Western  Union 
Teleg.  Co.  v.  Norman,  77  Fed.  13, 
22;  City  of  Bridgeport  v.  New  York 
&  New  Haven  Rd.  Co.,  36  Conn. 
255,  266,  4  Am.  Rep.  63;  Bailey  v. 

96 


Southern  Ry.  Co.,  112  Ky.  424,  61 
S.  W.  31;  Smith  v.  Mayor,  etc.,  of 
New  York,  68  N.  Y.  552,  555. 

"The  powers  and  privileges  which 
constitute  the  franchises  of  a  cor- 
poration were  in  a  just  sense  prop- 
erty, quite  distinct  and  separate 
from  the  property  which  by  the  use 
of  such  franchises  the  corporation 
might  acquire."  Home  Insurance 
Co.  v.  New  York,  134  U.  S.  594, 
601,  33  L.  ed.  1025,  10  Sup.  Ct.  593, 
per  Field,  J.  (taxability  of  franchises 
considered). 

See  §§  25-27,  herein. 

"Much  confusion  often  happens 
from  a  failure  to  distinguish  between 
those  franchises  that  are  corporate 
in  a  strict  legal  sense  and  not  really 
property  of  the  corporation,  and 
franchises  acquired  by  a  corporation 
after  corporate  existence  commenced, 
that  it  may  part  with  if  they  be  as- 
signable, or  deprived  of  without 
corporate  existence  being  affected 
and  which  may  survive  the  death  of 
the  corporation."  State  v.  Portage 
City  Water  Co.,  107  Wis.  441,  446, 
83  N.  W.  697,  per  Marshall,  J.  (a 
case  of  action  to  forfeit  a  waterworks 
franchise  granted  by  a  city  to  in-* 
dividuals  and  assigned  to  defendant). 


DISTINCTIONS  §    34 

rate  property  of  a  bank  is  separable  from  the  franchise,  and 
the  banking  capital  attached  to  the  franchise  is  another  prop- 
erty owned  in  its  parts  by  persons,  corporate  or  natural,  and 
the  corporate  property  may  be  taxed  in  the  absence  of  a 
special  contract  otherwise.19  And  although  the  franchise  or 
privilege  of  running  a  railroad  and  taking  fares  and  freight 
is  property  which  is  valuable,  still  it  is  not  the  same  sort  of 
property  as  the  rolling  stock,  roadbed,  and  depot  grounds.20 
The  roadbed,  acquired  by  purchase  or  condemnation,  is 
altogether  distinct  from  the  pre-existing  franchise  to  exist 
and  to  build  the  road,  even  though  it  is  obtained  as  a  result 
of  the  exercise  of  such  franchise  to  be.  That  franchise  con- 
sists in  the  incorporeal  right,  the  property  acquired  is  not  the 
franchise;  this  distinction  is  clear  between  a  franchise,  as  such, 
and  the  property  acquired  by  the  exercise  or  use  thereof,  even 
though  the  property  so  acquired  may  be  largely  augmented  by 
the  use  to  which  the  franchise  enables  that  property  or  easement 
to  be  put  and  although  it  may  have  no  particular  value  inde- 
pendent of  the  use  made  as  incidental  to  the  franchise  to  be.21 
Again,  the  real  estate  of  a  corporation  is  a  distinct  thing  from  its 
franchises,  even  though  the  right  to  acquire  and  sell  real  estate 
is  a  franchise.22    And  a  structure,  such  as  a  pier,  or  bridge,  is 

18  Gordon   v.   Appeal  Tax  Court,  thing;    the   property  rights,  includ- 

3  How.  (44  U.  S.)  133,  150,  11  L.  ed.  ing   rights  of  way  which  the  char- 

529,  per  Wayne,  J.  tered  body  may  acquire  from   pri- 

20  Wilmington  Railroad  v.  Reid,  vate  individuals,  is  quite  another. 
13  Wall.  (80  U.  S.)  264,  268,  20  L.  ed.  These  latter  may  be  lost  by  acts  of 
568,  per  Davis,  J.  (a  case  of  exemp-  the  corporation  and  the  approval 
tion  from  taxation,  including  fran-  of  the  State  is  not  necessary,"  al- 
chise  of  railroad  company).  though  it  may  be  true  that  a  cor- 

21  Consolidated  Gas  Co.  v.  Balti-  poration  cannot  abandon  its  fran- 
more  City,  101  Md.  541,  545-548,  61  chise  without  the  consent  of  its 
Atl.  532,  per  McSherry,  C.  J.  creator,    the    State.     Thompson    v. 

"A  'franchise',  i.  e.,  the  right  to  Schenectady  Ry.  Co.,  124  Fed.  274, 

exist   and    perform    certain   acts,  is  279,  per  Ray,  Dist.  J.,  see  same  case 

a  thing   distinct   from  the  property  131  Fed.  577. 

rights  which  the  corporation  when        22  Davis  v.  Gray,  16  Wall.  (83  U. 

created   may  acquire  from   individ-  S.)    203,    228,    21    L.    ed.    447,    per 

uals.     *     *     *     The  'franchise,'  the  Swayne,   J.    (a  suit   by   receiver  of 

charter  granted  by  the  State  is  one  railroad,  grantee  of  lands  from  State, 

7  97 


§  34 


NATURE   OF   FRANCHISE    CONTINUED — 


not  a  franchise;  it  differs  from  the  franchise  right  or  privilege 
to  construct  and  maintain  the  pier,  etc.,  and  take  wharfage, 
tolls,  rates  or  like  charges  for  the  use  thereof.23  It  is  also  de- 
clared that:  "In  every  instance  of  a  private  easement — that 
is,  an  easement  not  enjoyed  by  the  public — there  exists  the 
characteristic  feature  of  two  distinct  tenements — one  dominant 
and  the  other  servient.  On  the  other  hand,  a  franchise  is  a 
special  privilege  conferred  by  government  on  individuals, 
which  does  not  belong  to  the  citizens  of  the  country  generally 
by  common  right.24  A  franchise  does  not  involve  an  interest 
in  land — it  is  not  real  estate,  but  a  privilege  which  may  be 
owned  without  the  acquisition  of  real  property  at  all.  The  use 
of  a  franchise  may  require  the  occupancy,  or  even  the  owner- 
ship, of  land,  but  that  circumstance  does  not  make  the  fran- 
chise itself  an  interest  in  land.    To  define  the  nature  of  a  thing 


to  enjoin  forfeiture  and  grant  of 
same  lands  to  another;  was  as  pre- 
venting fulfillment  of  conditions  of 
grant). 

See  §  12,  herein. 

23  "  The  plaintiff  has  a  franchise 
to  construct  and  maintain  this  pier 
and  take  wharfage  for  its  use.  The 
pier  itself  is  a  structure  built  under 
bis  franchise.  It  is  tangible,  bulky- 
property,  and  in  no  sense  incorporeal. 
(2  Black.  Comm.  191).  It  is  not 
like  a  mere  right  or  privilege  which 
has  no  physical  existence.  A  per- 
son may  have  a  franchise  to  build 
and  maintain  a  bridge  and  take  toll 
for  its  use.  The  bridge  as  a  struc- 
ture is  not  a  franchise.  *  *  *  A 
railroad  company  has  a  franchise 
to  construct  and  maintain'  a  rail- 
road *  *  *  its  road  and  other 
structures  may  be  taxed  as  real  es- 
tate." Although  under  the  laws  of 
the  State  a  mere  franchise  is  not  tax- 
able except  by  special  statute. 
Smith  v.  Mayor,  etc.,  of  New  York, 
SS  N.  Y.  552,  555,  per  Earl,  J. 

"The    consideration    for    building 

98 


the  bridge  was  the  franchise  to  col- 
lect tolls  for  a  designated  number  of 
years.  The  plaintiffs  needed  the 
bridge  for  the  convenience  of  the 
public.  The  defendants  agreed  to 
build  it  for  the  franchise  granted. 
The  bridge  as  soon  as  completed  be- 
came the  property  of  the  plaintiffs, 
and  at  the  termination  of  this  fran- 
chise they  are  compelled  to  deliver 
the  bridge  to  plaintiffs.  They  as- 
serted their  duty  in  their  charter, 
when  in  the  fifth  section  they  agreed 
to  abandon  the  bridge  to  the  plain- 
tiffs. The  defendants  owned  the 
franchise  and  not  the  bridge.  They 
had  the  use  of  the  bridge  during  the 
existence  of  their  franchise,  and  held 
it  in  trust  for  the  public.  The 
defendant  corporation,  under  their 
charter,  stood  in  the  same  relation 
to  the  public  as  the  plaintiffs  would 
have  done  had  they  built  the  bridge." 
Police  Jury  v.  Bridge  Co.,  44  La. 
Ann.  137,  141,  10  So.  677,  per  Mc- 
Enery,  J. 

24  Citing  2  Wash.  Real  Prop.  303. 
See  §  2,  herein. 


DISTINCTIONS  §§   35,  36 

by  the  accidents  which  are  employed  in  its  use,  is  to  confound 
the  thing  itself  with  the  agencies  applied  in  its  adaptation. 
Because  land  may  be  required  in  putting  a  franchise  into  ef- 
fective operation,  it  does  not  follow  that  the  franchise  is  land, 
or  an  interest  in  land.  But  an  easement  is  quite  a  different 
thing.  It  is  essentially  and  inherently  an  interest  in  land.  It 
is  an  estate — a  dominant  estate  imposed  upon  a  servient 
tenement.  *  *  *  It  will  be  found  upon  examining  some 
of  the  cases  that  there  is  occasionally,  in  the  arguments  of 
counsel,  a  want  of  exactness  in  the  use  of  terms,  and  now  and 
then  the  right  to  do  a  particular  thing  is  confused  with  the 
results  achieved  in  the  exercise  of  the  right,  and  those  results 
are  inaccurately  spoken  of  as  the  franchise.  The  right  to 
occupy  the  streets  with  gas  mains  is  a  franchise — the  actual 
occupation  of  them  in  that  way  pursuant  to  the  franchises  the 
acquisition  of  an  easement.  You  must  distinguish  between  the 
right  to  do  the  thing,  and  the  interest  acquired  in  the  soil  by 
the  exercise  of  that  right."  25 

§  35.  Same  Subject — "  Personal  Franchise  "  Distin- 
guished from  Property  Franchise. — A  clear  distinction  is  made 
between  that  franchise  which  creates  a  corporation  that  has 
the  power  to  own  property,  and  the  franchise  which  authorizes 
the  corporation  thus  organized  to  construct  and  operate  a  rail- 
road. The  first  has  been  called  the  "personal  franchise,"  so 
denominated,  by  virtue  of  which  the  corporation  becomes  a 
legal  entity,  and  obtains  the  capacity  to  acquire  property  and 
other  rights.  The  other  franchise  is  declared  to  be  purely  and 
only  a  property  franchise.26 

§  36.  Franchise  Differs  from  Grant  of  Land — Easement 
— Freehold. — The  grant  of  franchises  and  privileges  is  unlike 
a  grant  of  land,  since,  in  the  latter,  the  grantee  is  invested  with 

"  Consolidated  Gas  Co.   v.   Balti-        26  Sandham  v.  Nye,  30  N.  Y.  Supp. 

more  City,  101  Md.  541,  61  Atl.  532,  552,  555,  62  N.  Y.  St.  Rep.  198,  9 

545-548,   per  McSherry,  C.  J.     See  Misc.  541,  per  Rumsey,  J.    See  §§25- 

§§  26,  36,  herein.  27,  herein. 

99 


§   37  NATURE   OF   FRANCHISE   CONTINUED — 

exclusive  dominion.  But  there  is,  however,  a  certain  resem- 
blance to  a  grant  to  a  telephone  company  of  the  use  of  a  cer- 
tain space  on,  above  or  beneath  the  earth's  surface,  since  it 
cannot  be  excluded  from  the  space  which  it  is  lawfully  en- 
titled to  possess  for  its  purposes,  although  this  rule  is  subject 
to  many  qualifications  dependent  upon  a  lawful  exercise  of 
the  public  rights  in,  and  public  user  of  streets.  Nor  is  the  right 
existent  in  an  electrical  company  to  claim  any  exclusive  right 
in  the  earth  as  an  electrical  field  for  the  conduct  of  electricity.27 
Again,  it  is  declared  that,  "The  exercise  of  the  power  of  using 
streets  for  laying  gas  pipes  is  rather  an  easement  than  a  fran- 
chise." 28  In  an  Illinois  case  where  it  was  sought  to  set  aside 
or  redeem  from  conveyance  of  a  patent  it  was  held  that  a 
franchise  was  not  involved  so  that  a  direct  appeal  to  the  Su- 
preme Court  would  lie,  the  existence  or  validity  of  the  patent 
not  being  questioned,  and  the  court  in  its  argument  upon  the 
point  of  analogy  of  title  to  a  freehold  declared  that  franchises 
differ  in  their  nature  from  freeholds;  that  the  very  essence  of 
a  freehold  lies  in  the  title  to  the  land;  that  no  question  can 
arise  as  to  the  existence  of  the  land,  but  only  as  to  the  title  to 
it;  that  a  franchise  is  something  incorporeal  and  artificial, 
created  by  the  will  of  the  sovereign  authority  and  its  very  es- 
sence lies  in  its  existence,  in  the  right  to  exercise  it.29 

§  37.  General  Creative  Franchise  and  Special  Franchise 
Distinguished.30 — Under  the  constitution  of  California,  fran- 
chises must  be  classed  as  property,  subject  to  taxation.     The 

27  Hudson  River  Telephone  Co.  Jessup,  162  N.  Y.  122,  56  N.  E.  538, 
v.  Watervliet  Turnpike  &  Rd.  Co.,  where  franchise  is  distinguished  from 
56  Hun  (N.  Y.),  67,  3  Am.  Elec.  Cas.  easement.  Case  reverses  42  N.  Y. 
387,  389,  9  N.  Y.  Supp.  177,  per  Lan-  Supp.  4,  10  App.  Div.  456. 

don,  J.     See  §§  25-27,  33,  34,  herein.  An    indefeasible    interest    in    land. 

28  People  ex  rel.  Kunze  v.  Fort  See  Ghee  v.  Northern  Union  Gas 
Wayne  &  Elmwood  Ry.  Co.,  92  Co.,  158  N.  Y.  510,  513,  53  N.  E.  692. 
Mich.  522,  525,  52  N.  W.  1010,  per  Case  reverses  56  N.  Y.  Supp.  450,  34 
Montgomery,     J.;     People     ex    rel.  App.  Div.  551. 

Maybury  v.  Mutual  Gas  Light  Co.,        29  Maginn  v.  Bassford,  196  111.  266, 
38  Mich.  154,  155,  per  Campbell,  C.    63  N.  E.  668,  per  Carter,  J. 
J.     See  Trustees  of  Southampton  v.        30  See  §§  6-8,  herein. 

100 


DISTINCTIONS  §   38 

franchises  so  assessable,  may  be  classified  as  creative  and 
special.  The  creation  of  a  corporation,  the  grant  of  power 
to  exist  and  act  as  such  is,  in  itself,  a  franchise  distinctly  held 
to  be  assessable  as  property.  This  creative  franchise  is,  how- 
ever, inseparable  from  the  being  or  personality  of  the  corporate 
body.  But  the  right  to  collect  water  rates  or  compensation 
for  water  distributed  or  furnished  is  a  franchise  independent 
of  the  creative  or  corporate  franchise;  it  is  a  separate  entity 
or  franchise,  a  special  franchise  distinct  from  the  general 
franchise  to  be  and  act  as  a  corporation.  It  is  also  a  property 
right.  So  it  is  declared  that  a  difference  exists  "  between  the 
general  creative  franchise  to  be,  and  the  special  franchises 
which,  when  accepted  or  purchased,  vest  privileges  or  franchises 
resting  in  special  grant  from  governmental  sources.  *  *  * 
The  mere  fact  that  a  corporation  is  organized  for  the  specific 
purpose  of  acquiring,  and  is  given  power  to  acquire  public 
uses  or  franchises,  does  not  carry  with  it  the  idea  that  such 
franchises,  when  acquired,  be  they  many  or  few,  are  merged 
in,  and  must  be  assessed  as  part  and  parcel  of  the  general 
corporate  franchise.  *  *  *  The  distinction  between  the 
corporate  or  creative  franchise,  and  other  special  franchises 
which  the  corporate  entity  may  acquire  and  exercise,  has  long 
been  recognized  by  our  courts."  31 

§  38.  Franchises  Belonging  to  Corporators  and  Those 
Belonging  to  Corporation  Distinguished. — The  franchise  of 
being  a  corporation  belongs  to  the  corporators,  while  the 
powers,  rights  and  privileges  vested  in  and  to  be  exercised 
by  the  corporate  body  as  such  constitute  franchises  of  the 
corporation.32  So  it  is  declared  by  Judge  Baldwin  that:  "In 
the  common  case  of  the  incorporation  of  a  domestic  company 
to  build  and  operate  a  domestic  railroad,  the  franchises  granted 
are  also  distinct,  and  are  held  by  different  persons.    The  fran- 

31  San    Joaquin    &    King's    River  32  Memphis    &    Little    Rock    Rd. 

Canal  &  Irrig.  Co.  v.  Merced  County,  Co.  v.  Commissioners,  112  U.  S.  609, 

2  Cal.  App.  593,  595,  597,  599,  84  619,  28  L.  ed.  837,  5  Sup.  Ct.  299, 

Pac.  285,  per  McLaughlin,  J.    See  per    Matthews,    J.     See    §§11,    28, 

§§  5,  11,  12,  herein.  herein. 

101 


§  39 


NATURE   OF   FRANCHISE   CONTINUED — 


chiso  to  become  and  exist  as  an  artificial  person  vests  in  the 
corporators;  that  to  act,  when  incorporated,  in  such  a  way  as 
to  accomplish  certain  purposes,  vests  in  the  corporation."  33 
But,  a  franchise  granted  by  a  city  to  an  electric  light  company 
is,  under  an  Indiana  case,  the  property  of  the  corporation  and 
not  of  the  owner  of  stock  therein.34 


§  39.  Franchise  to  Be  and  to  Carry  on  Business  Distin- 
guished— "  Corporate  Franchise  or  Business." — The  franchise 


33  Baldwin's  Amer.  Rd.  Law  (ed. 
1904),  p.  26. 

"  Now  it  is  clear  from  these  defini- 
tions, and  from  the  very  nature  of  a 
corporation,  that  a  franchise,  or  the 
right  to  be  and  act  as  an  artificial 
body,  vests  in  the  individuals  who 
compose  the  corporation  and  not 
in  the  corporation  itself,"  although 
"  It  will  be  kept  in  mind  that  the 
corporate  body,  for  most  purposes, 
has  a  distinct  identity  from  that  of 
the  individual  corporators."  Feit- 
sam  v.  Hay,  122  111.  293,  295,  3  Am. 
St.  Rep.  492,  13  N.  E.  501,  per 
Mulkey,   J. 

"It  has  been  said,  'the  essence  of 
a  corporation  consists  in  the  capacity 
(1)  to  have  perpetual  succession  un- 
der a  special  name,  and  in  an  artifi- 
cial form;  (2)  to  take  and  grant 
property,  contract  obligations,  sue 
and  be  sued  by  its  corporate  name, 
as  an  individual;  and  (3)  to  receive 
and  enjoy,  in  common,  grants  of 
privileges  and  immunities.  *  *  * 
Under  the  two  first  is  described 
what  may  be  termed  the  franchise 
of  the  corporators,  or  individual 
members  of  the  corporation,  and 
under  the  last  what  may  be  termed 
the  franchises  of  the  corporation.'" 
Coe  v.  Columbus,  Piqua  &  Indiana 
Rd.  Co.,  10  Ohio  St.  372,  385,  75 
Am.  Dec.  518,  per  Gholson,  J.,  citing 
Thomas  v.  Dakin,  22  Wend.  (N.  Y.) 

102 


71;  Pierce  v.  Emery,  32  N.  H.  484- 
507. 

"The  word  'franchise'  is  often 
used  as  a  generic  name,  descriptive 
of  all  the  rights,  privileges  and  im- 
munities contained  in  the  charter, 
including  the  right  of  the  corporation 
to  become  and  continue  to  be  a  legal 
person;  but  in  a  narrower  sense  it 
includes  only  the  rights,  powers  and 
privileges  conferred  by  the  legislature 
upon  the  corporation  as  such  after 
it  has  come  into  existence  as  a  legal 
person.  The  right  to  form  a  cor- 
poration is  a  franchise  which  may  be 
said  to  belong  to  the  corporators; 
while  the  right  to  take  land  for  rail- 
road purposes,  to  operate  the  railroad 
and  to  take  tolls  there,  are  properly 
called  'franchises'  which  belong  to 
the  corporation."  Driscoll  v.  Nor- 
wich &  Worcester  Rd.  Co.,  65  Conn. 
230,  256,  32  Atl.  354,  per  Torrance, 
J.,  in  dissenting  opinion. 

Formation  of  corporation  to  ac- 
complish fraud  or  other  illegal  act 
cannot  be  based  upon  distinction 
that  corporation  and  corporators 
have  independent  existence.  First 
Nat.  Bank  v.  J.  C.  Trebein  Co.,  59 
Ohio  St.  316,  41  Ohio  L.  J.  142,  52 
N.  E.  834.  See  also  Chesapeake  & 
Ohio  R.  Co.  v.  Howard,  14  App.  D. 
C.  262,  27  Wash.  L.  Rep.  146. 

34  Payne  v.  Goldbach,  14  Ind. 
App.  100,  42  N.  E.  642. 


DISTINCTIONS  §    39 

to  be  or  exist  is  only  one  of  the  franchises  of  a  corporation.  The 
franchise  to  do,  to  carry  on  the  business  of  the  corporation,  is 
an  independent  franchj.se,  or  rather,  a  combination  of  fran- 
chises, embracing  all  things  which  a  corporation  is  given  power 
to  do,  and  this  power,  this  authority,  constitutes  a  thing  of 
value  and  a  part  of  the  corporation's  intangible  property  as 
much  as  does  the  franchise  to  be.  Franchises  to  do,  go  wherever 
the  work  is  done;  for  the  transaction  of  its  business  the  cor- 
poration may  go  into  various  States,  and  wherever  it  goes  as 
a  corporation  it  also  carries  with  it  the  franchise  to  be,  for 
although  for  the  purposes  of  jurisdiction  in  the  Federal  courts, 
it  is  also  true  that  a  corporation  is  presumed  to  be  a  citizen  of 
the  State  which  created  it,  still  it  does  not  follow  that  its 
franchise  to  be  is  for  all  purposes  to  be  regarded  as  confined 
to  that  State.  Again,  it  would  seem  that  these  intangible 
properties,  these  franchises  to  do,  exercised  in  connection  with 
the  tangible  property  which  it  holds,  create  a  substantive 
matter  of  taxation  to  be  asserted  by  every  State  in  which  that 
tangible  property  may  be  found.35  So  in  a  Nebraska  case  a 
distinction  is  made  between  a  franchise  to  be  and  a  franchise 
consisting  of  a  right  to  do  business  in  a  State,  where  the  latter 
franchise  is  sought  to  be  reached  for  the  purpose  of  taxation, 
whether  such  right  is  derived  through  an  act  of  Congress,  or 
of  the  legislature,  or  by  an  ordinance  of  a  municipality;  that 
is,  the  thing  which  is  so  sought  to  be  reached  for  taxation  is 
the  intangible  right  to  transact  or  carry  on  business  by  means 
of  the  usual,  visible  and  tangible  agencies  with  which  the 
operations  of  such  business  are  carried  on  independent  of  the 

35  Adams    Express    Co.    v.    Ohio  it  can  be  said  to  be  valuable.     The 

State  Auditor,   1G6  U.   S.   185,  224,  wharf  without  a  right  to  use  it  would 

41  L.  ed.  965,  17  Sup.  Ct.  G04,  per  be   of   no    appreciable   value.     It   is 

Brewer,    J.     Denying    rehearing    in  the    combination    of    the    two — the 

165  U.  S.  194,  255,  17  Sup.  Ct.  305,  wharf  and  the  franchise— that  mutu- 

41  L.  ed.  683,  707.  ally  impart  to  each  other,  when  com- 

"The    franchise  or   bare   right   to  bined,  an  estimable  value.     *     *     * 

do  a  thing  considered  with  reference  No  franchise  is  of  any  value  when 

to  itself  alone  is  of  no  value.     It  is  considered   without    reference  to   its 

only  whf-n  it  is  considered  relatively  utility."     Sullivan  v.  Lear,  23   Mi. 

and  in  connection  with  its  u.se  that  463,  2  So.  846,  11  Am.  St.  Rep.  388. 

L03 


§§    40,  41        NATURE    OF    FRANCHISE    CONTINUED — 

instrumentalities  themselves.  It  was  also  said  in  this  case, 
that  there  was  a  clear  distinction  between  "corporate  franchise " 
and  franchises  or  privileges  which  a  corporation  or  individual 
might  exercise.36  The  term  "corporate  franchise  or  business" 
as  used  in  the  tax  law  of  New  York 37  providing  for  the  tax- 
ation of  corporations,  means  (not  referring  to  corporations 
sole  which  are  not  usually  created  for  commercial  business) 
the  right  or  privilege  given  by  the  State  to  two  or  more  persons 
of  being  a  corporation,  that  is,  of  doing  business  in  a  corporate 
capacity,  and  not  the  privilege  or  franchise  which,  when  in- 
corporated, the  company  may  exercise.38 

§  40.  Franchise  Distinguished  from  Means  Employed  in 
Exercising  It. — A  franchise  is  distinguished  from  the  means 
employed  in  exercising  it,  as  in  case  of  a  franchise  of  furnishing 
a  city  and  its  inhabitants  water  for  public  and  private  pur- 
poses and  limited  to  the  city.  In  such  case,  the  fact  that  the 
water  is  pumped  and  stored  without  the  city,  constitutes  only 
a  means  of  exercising  the  franchise.  The  franchise  does  not 
consist  in  pumping  the  water  or  in  maintaining  the  reservoirs.39 

§41.  Charter  and  Franchise— To  What  Extent  Distin- 
guished.— In  determining  to  what  extent,  if  any,  a  charter 
and  franchise  may  be  distinguished,  we  will  first  consider  the 
meaning  of  the  word  "  charter,"  where  definitions  of  the  word 
have  a  bearing  upon  the  question.    The  definitions  of  a  fran- 

36  Western  Union  Teleg.  Co.  v.  point  in  People  v.  Miller,  83  N.  Y. 
City  of  Omaha  (Neb.,  1905),  103  Supp.  184,  187,  85  App.  Div.  211, 
N.  W.  84-86,  per  Lurton,  C.  which  case  is  reversed,  177  N.  Y.  51, 

37  Act  May  26,  1881,  c.  361.  69  N.  E.  124,  which  is  cited  in  People 

38  Home  Insurance  Co.  v.  New  v.  Miller,  86  N.  Y.  Supp.  420,  422, 
York,  134  U.  S.  594,  599,  33  L.  ed.  90  App.  Div.  588.  This  last  case  is 
1025,  10  Sup.  Ct.  593,  per  Field,  J.  reversed,  179  N.  Y.  49,  71  N.  E. 
Case  affirms  People  v.  Home  Insur-  463. 

ance  Co.,  92  N.  Y.  328,  also  affirmed        39  Board  of  Councilmen  of  City  of 

by  divided  court,  119  U.  S.  129,  30  Frankfort  v.  Stone,  108  Ky.  400,  22 

L.  ed.  350,  8  Sup.  Ct.  1385,  restored  Ky.  L.  Rep.  25,  56  S.  W.  679  (a  case 

to  calendar,  122  TJ.  S.  636  (Mem.),  of   taxation    and   apportionment   of 

The  principal  case  is  cited  to  above  tax). 

104 


DISTINCTIONS  §   42 

chise  have  been  fully  given  elsewhere.40  A  charter  of  incorpo- 
ration is  defined  as  the  instrument  evidencing  the  act  of  a 
legislature,  governor,  court,  or  other  authorized  department 
or  person,  by  which  a  corporation  is  or  was  created.41  The 
word  "charter"  is  also  used  to  signify  the  agreement  between 
the  shareholders  of  the  corporation,  whether  this  agreement 
be  contained  in  a  special  act  of  the  legislature,  or  in  articles  of 
association,  or  in  either  of  these  taken  in  connection  with  the 
general  laws  of  the  State.42  So  the  general  law  under  which 
corporations  are  formed,  together  with  the  articles  of  associa- 
tion adopted  in  pursuance  thereof,  sometimes  called  "  constating 
instruments, "  constitute  the  charter  of  the  corporation.43 

§  42.  Charter  and  Franchise  Continued — How  Extent  of 
Powers  Is  Ascertained. — It  may  be  stated,  as  pertinent  to  the 
question  as  to  the  distinction  between  a  charter  and  a  fran- 
chise, that  resort  must  be  had  to  the  charter  in  connection  with 
the  general  law  in  order  to  ascertain  the  extent  of  the  powers, 
rights  and  privileges  conferred,  and  where  a  private  corpora- 
tion is  organized  under  the  general  incorporation  law,  the 
franchises  conferred  by  the  State,  when  it  was  organized,  are 
to  be  ascertained  or  determined  from  the  objects  of  the  in- 
corporation as  stated  and  set  forth  in  the  articles  of  incorpo- 

40  See  Chap.  I,  herein.  on  Stock  and  Stockholders,  §§2,  9; 

41  Anderson's  L.  Diet.,  "Charter."  People  v.  Chicago  Gas  Trust  Co.,  130 
See  State  Bank  of  Chicago  v.  Carr,  111.  268,  22  N.  E.  798;  1  Morawetz  on 
130  N.  C.  479,  41  S.  E.  876.  Exam-  Corp.  (2d.  ed.)  §  318;  and  cited  in 
ine  State  v.  Pittman,  32  Wash.  137,  State  v.  Anderson,  31  Ind.  App.  34, 
72  Pac.  142.  67  N.  E.  207. 

"  Floyd  v.  National  Loan  &  In-  Examine    Union   Traction   Co.    v. 

vestment  Co.,  49  W.  Va.  327,  345,  87  Chicago,  199  111.  484,  59  L.  R.  A.  631, 

Am.  St.  Rep.  805,  38  S.  E.  653,  54  65  N.  E.  451;  Bixler  v.  Summerfield, 

L.  R.  A.  536,  per  Poffenbarger,  J.,  195  111.  147,  62  N.  E.  849;  McLeod  v. 

citing  Morawetz  on  Corp.  §  967.  Lincoln  Medical  College,  69  Neb.  550, 

"Attorney  Genl.  v.  Perkins  (Ma-  96  N.  W.  265. 

son  v.  Perkins),  73  Mich.  303,  319,  For  other  definitions,  see  Merrick 

320,  41  N.  W.  426,  per  Champlin,  J.  v.  Santvoord,  34  N.  Y.  208,  214,  per 

See  also  to  same  point  Bent  v.  Un-  Porter,  J.;  Lehigh  Water  Co.'s  Ap- 

derdown,  156  Ind.  516,  519,  60  N.  E.  peal,  102  Pa.  515,  517. 
307,  per  Monks,   J.,    citing   1  Cook 

105 


§  43 


NATURE    OF   FRANCHISE   CONTINUED — 


ration.  And  although  the  statute,  under  which  it  is  organized, 
vests  it  with  and  authorizes  it  to  exercise  all  the  powers  nec- 
essary and  requisite  to  carry  into  effect  the  objects  for  which 
it  was  formed,  nevertheless  the  general  powers  intended  by 
the  enactment  are  such  powers  only  as  are  necessarily  incident 
and  supplemental  to  the  special  powers  granted.44 


§  43.  Charter  and  Franchise  Continued — Where  Fran- 
chise Does  not  Take  Effect  Before  Actual  Formation  of 
Corporation. — It  may  be  also  stated,  as  a  consideration 
having  an  important  bearing  upon  the  matter  under  discussion, 
that  a  corporation  may  be  presently  created  by  the  terms  of 
a  statute,  without  condition  precedent  or  preliminary.     And 


44  Chicago  Municipal  Gas  Light  & 
Fuel  Co.  v.  Town  of  Lake,  130  111. 
42,  53,  22  N.  E.  616;  Dartmouth  Col- 
lege v.  Woodward,  4  Wheat.  (17  U. 
S.)  518,  635,  4  L.  ed.  629,  per  Mar- 
shall, C.  J.;  Meyer  v.  Johnston,  53 
Ala.  237,  324,  per  Manning,  J. 

See  the  following  cases: 

United  States:  Thomas  v.  Rail- 
road Co.,  101  U.  S.  71,  25  L.  ed.  950. 

Illinois:  People,  Moloney,  v.  Pull- 
man's Palace  Car  Co.,  175  111.  125, 
51  N.  E.  664,  64  L.  R.  A.  366. 

Missouri:  State,  Crow,  v.  Lincoln 
Trust  Co.,  144  Mo.  562,  46  S.  W. 
593. 

New  York:  McGraw,  In  re,  v.  Cor- 
nell University,  45  Hun  (N.  Y.),  354, 
10  N.  Y.  Supp.  495  and  cases  cited. 

Texas:  Ft.  Worth  Street  Rd. 
Co.  v.  Rosedale  Street  Rd.  Co.,  68 
Tex.  169,  4  S.  W.  434;  Gulf,  Colorado 
&  Santa  Fe  R.  Co.  v.  Morris,  67  Tex. 
692,  4  S.  W.  156. 

Utah:  Weyeth  Hardware  &  M.  Co. 
v.  James-Spencer-Bateman  Co.,  15 
Utah,  110,  47  Pac.  604. 

"A  corporation  being  the  mere 
creature  of  the  legislature,  its  rights, 
privileges  and  powers  are   dependent 

106 


solely  upon  the  terms  of  its  charter." 
Horn  Silver  Mining  Co.  v.  New  York, 
143  U.  S.  305,  312,  36  L.  ed.  164,  12 
Sup.  Ct.  403,  per  Field,  J.  (a  case  of 
taxation  of  corporate  franchises). 

Railroad  corporations  possess  only 
those  rights,  powers  or  properties 
which  the  charters  of  their  corpora- 
tions confer  upon  them,  either  ex- 
pressly or  as  incidental  to  their  ex- 
istence, and  this  applies  to  all  other 
corporations.  St.  Louis,  Iron  Moun- 
tain &  Southern  Ry.  Co.  v.  Paul,  64 
Ark.  83,  40  S.  W.  705,  37  L.  R.  A. 
504,  62  Am.  St.  Rep.  154. 

Articles  of  incorporation  under  gen- 
eral laws  have  the  effect  of  a  charter 
when  necessary  to  ascertain  the  ex- 
tent of  the  powers  conferred  upon 
the  corporation  so  organized.  North 
Point  Consol.  Irrig.  Co.  v.  Utah  & 
S.  L.  Canal  Co.,  16  Utah,  246,  52 
Pac.  168,  40  L.  R.  A.  851,  8  Am.  and 
Eng.  Corp.  Cas.  (N.  S.)  98.  See  also 
Detroit  Driving  Club  v.  Fitzgerald, 
109  Mich.  670,  67  N.  W.  899,  4  Am. 
and  Eng.  Corp.  Cas.  (N.  S.)  546,  3 
Det.  L.  N.  232;  International  Boom 
Co.  v.  Rainy  Lake  River  Boom  Corp., 
97  Minn.  513,  107  N.  W.  735. 


DISTINCTIONS  §   44 

very  commonly  charters  are  framed,  not  of  themselves  creat- 
ing, but  authorizing  the  formation  of  corporations  upon  pre- 
liminary conditions.  Under  the  former  class  of  charters,  the 
corporation  created  is  the  grantee  of  the  franchises  conferred. 
Under  the  latter  class,  however,  neither  the  franchise  to  be  a 
corporation,  nor  the  particular  franchise  conferred,  takes 
effect  before  the  actual  formation  of  the  corporation.  When 
the  corporation  is  formed,  the  franchises  conferred  vest  in  it 
as  grantee.  Franchises  so  conferred  are  like  any  other  estate 
granted  upon  condition  precedent,  the  estate  vesting  upon 
condition  fulfilled.  But  like  every  other  operative  grant, 
franchises  so  conferred  have  a  certain  grantee.45  Again,  it  is 
necessary  to  complete  the  corporate  organization  by  the  elec- 
tion of  the  proper  and  necessary  officers  before  a  corporation 
can  exercise  the  power  of  condemnation  of  property.46 

§  44.  Charter  and  Franchise  Continued — Charter  Rights 
and  Privileges  Derived  Through  Organization — "  Addi- 
tional Franchise  or  Privilege  "  Acquired  After  Incorpora- 
tion.— Another  point  in  the  determination  of  the  ques- 
tion as  to  the  difference  between  a  charter  and  a  franchise 
may  be  stated  as  follows: — A  privilege  of  supplying  a  city  with 
water  may  be  such  that  it  cannot  be  said  in  the  strict  sense  of 
the  word,  to  be  a  "  corporate  franchise  " ;  that  is,  not  a  privilege 
derived  from  or  obtained  by  the  act  of  incorporation,  when 
charter  rights  and  privileges  are  such  only  as  come  to  a  cor- 
poration through  its  organization  under  the  general  corpo- 
ration law,  and  so  not  include  the  right  to  furnish  water  to  a 
city.  Such  right  may  only  be  acquired  after  the  incorporation 
is  accomplished,  and  upon  the  agreement  and  consent  of  the 
city.  Although  the  grant  of  corporate  capacity  is  from  the 
State,  and  the  subsequent  grant  from  the  city  may  be  said 
theoretically  to  have  been  also  from  the  State,  still  such  city 

*'■  Sellers  v.  Union  Lumbering  Co.,  4B  Consolidated    St.    Ry.    Co.    v. 

30  Wis.  525,  527,  per  Ryan,  C.  J.,  Toledo  Elect.  St.  Ry.  Co.,  6  Ohio  N. 

Citing    Att'y    General    v.    Railway  P.  537,  8  Ohio  S.  &  C.  P.  Dec.  268- 
Companies,  35  Wis.  599. 

107 


§    45  NATURE    OF   FRANCHISE    CONTINUED — 

is  under  no  legal  obligation  to  make  the  grant,  and  may  re- 
fuse it,  without  in  any  manner  affecting  the  company's  corpo- 
rate rights,  powers  or  franchises.  If  the  city  makes  the  grant 
it  gives  the  corporation  what  may  be  called  an  "additional 
franchise  or  privilege."  47  A  privilege  granted  by  a  munici- 
pality to  a  telephone  company  to  erect  its  lines  in  the  streets 
and  alleys  of  the  city  is  not  a  charter,  where  such  city  has  no 
legislative  power  to  authorize  the  use  of  its  streets  for  the 
erection  of  telephone  poles  and  wires  and  cannot  grant  to  any 
person  or  corporation  the  use  of  the  streets  and  alleys  of  a 
city  or  town  for  any  other  purpose  than  that  for  which  they 
were  dedicated ;  and  where  subsequently  the  state  constitution 
prohibits  the  use  of  such  streets,  alleys  or  public  grounds  of  a 
city  or  town,  without  the  prior  consent  of  the  proper  legisla- 
tive authorities,  such  consent  is  a  prerequisite  and  if  it  is  not 
obtained,  the  company  has  no  right  to  occupy  such  streets 
and  alleys,  unless  the  right  so  to  do  existed  by  virtue  of  a 
charter  antecedently  granted  and  work  had  in  good  faith  been 
begun  thereunder.  Nor  was  it  the  purpose  of  the  constitution 
to  render  valid  a  resolution  or  ordinance  of  a  board  of  council- 
men  granting  a  franchise  which,  under  the  law  at  the  time  of 
its  adoption,  was  invalid.48 

§  45.  Charter  and  Franchise  Continued — Distinction 
Exists. — It  appears  from  the  preceding  statements  that  the 
charter  is  the  instrument  evidencing  the  act  of  the  authority 
creating  the  corporation;  that  it  is  also  the  agreement  between 
the  shareholders  of  the  corporation  whether  the  agreement 
is  contained  in  the  statutes  or  in  the  articles  of  association,  in 
either  or  both ;  that  resort  must  be  had  to  the  charter,  in  con- 
nection with  the  general  law,  or  to  the  articles  of  incorpora- 
tion, to  ascertain  the  extent  of  the  powers,  rights  and  privi- 

47  Cedar    Rapids    Water    Co.     v.        48  East  Tennessee  Teleph.  Co.  v. 

Cedar  Rapids,   118  Iowa,  234,  239,  City  of  Russellsville,   106  Ky.  667, 

91  N.  W.  1081,  per  Weaver,  J.,  citing  21   Ky.  L.  Rep.  305,  51  S.  W.  308; 

Grand  Rapids  Bridge  Co.  v.  Prange,  Ky.  Const.  §  163. 
35  Mich.  400,  24  Am.  Rep.  585. 

108 


DISTINCTIONS  §    46 

leges  conferred;  that  where  a  charter  authorizes  the  formation 
of  corporations  upon  conditions,  neither  the  franchise  to  be  a 
corporation  nor  the  particular  franchise  conferred  takes  effect 
or  vests  in  the  grantee  before  the  actual  formation  of  the  cor- 
poration; and  that  a  "corporate  franchise  "  may  not  be  a  privi- 
lege derived  by  the  act  of  incorporation,  but  one  which  can 
only  be  acquired  by  subsequent  grant,  and  so  may  never 
vest.  It  would  seem,  therefore,  that  to  the  extent  set  forth 
within  this  summary  a  distinction  may  reasonably  be  declared 
to  exist  between  a  charter  and  a  franchise.49 

§  46.  Charter  and  Franchise  Continued — "  Charter  "  as 
Synonymous  with  "  Franchise." — Notwithstanding  what  is 
said  in  the  preceding  sections,  it  is  declared  that  "a,  charter  of 
incorporation  is  a  franchise."  50  And  that  every  grant  of  a 
franchise  is  a  charter.  It  may  be  a  grant  of  the  mere  franchise 
of  being  a  corporation,  or  a  grant  of  powers  to  a  corporation 
already  in  existence.  In  either  case,  the  grant  is  the  company's 
charter  to  exercise  the  rights  and  privileges  and  enjoy  the 
immunities  granted.51  Again,  where  a  statute  gives  authority 
to  mortgage  its  charter,  the  word  "charter"  is  said  to  include 
at  least  its  franchises  in  the  sense  of  the  right  to  own  and 

49  See  Chap.  I,  herein,  as  to  defini-        51  State,  Morris  &  Essex  Rd.  Co. 

tions  of  franchise.  Pros.  v.  Commissioner  of  Rd.  Taxa- 

"  A  charter  contains  the  grant  of  a  tion,  37  N.  J.  L.  228,  237,  per  Depue, 

franchise,  but  it  is  not  the  franchise  J.,  who  adds:  "Bouvier  defines  the 

itself.    The  charter  is  evidence  that  a  word  'charter'  to  be,  a  grant  made 

franchise    has    been    granted    rather  by  the  sovereign,  either  to  the  whole 

than  the  franchise,   for   that   is  the  people,  or  to  a  portion  of  them,  se- 

thing  the  charter  grants.    The  consti-  curing   to    them    the    enjoyment   of 

tutional  inhibition  against  impairing  certain  rights.     Bouvier's  Law  Diet., 

the  obligation  of  contract  is  not  oper-  'Charter.'    '  All  franchises,'  says  Chief 

ative  upon  the  charter  but  upon  the  Baron  Comyn,  'are  derived  from  the 

contract  which  the  charter  contains,  king,   and  ought   to   be   claimed   by 

and  protects  franchises  because  they  charter.'       Com.    Dig.,    'Franchises' 

are    valuable    property    or    contract  A,   71.     'Besides  the  charter  of  in- 

rights."    Elliott   on   Rds.     (2d  ed.),  corporation,    a     body     politic     has 

§  G4.  granted  to  it  other  charters,  by  which 

60  State  v.  Peel  Splint  Coal  Co.,  36  the  crown,  from  time  to  time,  adds 

W.  Va.  802,  812,  15  S.  E.  1000,  17  L.  to    or    modifies    the    powers,'    etc. 

R.  A.  385,  per  Lucas,  Pres.  Grant  on  Corp.  13." 

109 


§   47  NATURE   OF   FRANCHISE   CONTINUED — 

operate  the  road,  take  tolls  and  carry  on  its  business,  even 
though  there  may  be  a  question  whether  more  is  intended  to  be 
embraced  in  the  transfer.52 

§  47.  Whether  Certain  Grants  Constitute  a  License, 
Privilege,  Permission,  Gratuity  or  Contract,  and  not  a 
Franchise — Distinction. — In  Illinois  a  distinction  exists  be- 
tween a  franchise  and  a  license,  and  where  a  street  railway  is 
incorporated  under  an  act  of  the  legislature,  but  the  power  to 
construct  and  operate  is  by  its  charter  dependent  upon  the 
consent  of  the  city,  and  such  privilege  is  granted  by  ordinance, 
such  grant  by  the  city  is  held  a  mere  license  and  not  a  fran- 
chise; such  license  may,  however,  become  a  contract.53  So  un- 
der another  decision  in  the  same  State  a  distinction  exists  be- 
tween a  franchise  granted  by  the  sovereign  power  of  a  State 
and  an  authority  given  by  ordinance  of  a  city  to  construct  a 
railway  on  the  city  streets,  as  the  grant  in  the  ordinance  is 
not  a  franchise  but  a  mere  license.  Such  a  privilege  of  .the  use 
of  public  streets  in  a  city  or  town,  when  granted  by  ordinance, 
is  not,  however,  always  a  mere  license  revocable  at  will  of  the 
municipality,  but  it  may  be  a  valid  and  binding  contract,  as 
where  the  grant  is  based  upon  an  adequate  consideration  and 
is  accepted  by  the  grantee,  or,  even  though  considered  as  a 
mere  license,  it  may  have  been  acted  upon  in  such  a  manner 
that  it  would  be  inequitable  and  unjust  to  revoke  it.54    It  is 

52  Memphis  &  Little  Rock  Rd.  Co.  Chicago  City  Ry.  Co.  v.  The  People, 
v.  Berry,  37  N.  J.  L.  436,  443.  73  111.  541,  where  it  is  asserted  that 

53  Belleville  v.  Citizens'  Horse  Ry.  a  grant  or  license  given  by  an  ordi- 
Co.,  152  111.  171,  185,  38  N.  E.  584,  nance  comes  within  no  definition  of  a 
26  L.  R.  A.  681.  franchise.    Id.,  547. 

"License  to  operate  railroad" — Li-       An  authority  given  a  street  railway 

cense  defined,  see  State  ex  rel.  Chi-  company  to  use  city  streets  for  the 

cago,  Milwaukee  &  St.  Paul  Ry.  Co.  construction    and    operation    of    its 

v.  McFetridge,  56  Wis.  256,  259,  14  road  is  a  mere  license  or  permission 

N.  W.  185.  subject  to  conditions  specified  in  the 

54  Chicago  Municipal  Gas  Light  ordinance.  Blocki  v.  People,  220  111. 
&  Fuel  Co.  v.  Town  of  Lake,  130  111.  444,  77  N.  E.  172. 

42,  22  N.  E.  616,  citing  City  of  Ordinance  granting  such  a  right  to 
Quincjr  v.   Bull,    106  111.   337,   351;   railroad  to  use  streets  is  not  a  mere 

110 


DISTINCTIONS  §    47 

also  determined  in  that  State  that  a  municipal  grant  of  a  right 
to  a  company  to  use  the  streets  for  its  poles,  etc.,  is  not  a  fran- 
chise but  a  license  or  contract;  a  binding  contract,  upon  ac- 
ceptance of  the  privilege  by  the  company,  which  cannot  be 
revoked  except  for  cause  shown.55  So  a  municipal  ordinance 
granting  the  use  of  streets  for  a  system  of  waterworks  is  held 
not  to  confer  a  franchise  but  merely  a  license,  as  a  municipal 
body  cannot  grant  a  franchise.56  In  Maine,  permissive  rights 
given  by  statute,  1885, 57  "regulating  the  erection  of  posts  and 
lines  for  the  purposes  of  electricity,"  granted  no  franchises. 
Prior  to  1895  the  legislature  kept  the  granting  of  franchises 
in  its  own  hands.  Quasi-public  corporations  are,  however, 
required  to  obtain  authority,  either  general  or  special,  from 
the  legislature,  besides,  a  permit  is  required  from  municipal 
officers,  even  though  a  general  franchise  is  obtained,  under  the 
act  of  1895. 58  It  is  declared  in  a  Michigan  case,  that  the  ex- 
ercise of  the  power  of  using  streets  for  laying  gas  pipes  is  rather 
an  easement  than  a  franchise;  that,  it  is  not  a  state  franchise 
but  a  mere  grant  of  authority  which,  whether  coming  from 
private  owners  or  public  agents,  vests  in  contract  or  license 
and  nothing  else.59  In  Nebraska,  the  right  of  a  street  car  com- 
pany to  so  occupy  the  streets  of  a  city,  when  granted  by  a 
vote  of  the  electors,  is,  if  nothing  more,  a  license  coupled  with 
an  interest,  and  such  licenses  are  assignable.60    Again,  it  is  held 

revocable     license.       Workman     v.  56  Cain  v.  City  of  Wyoming,   104 

Southern  Pac.  R.  Co.,  129  Cal.  536,  62  111.  App.  538. 

Pac.  185.  "  Chap.    378,    Pub.    Laws,    1885, 

55  People  v.  Union  Tel.  Co.,  192  111.  p.  318. 
307,  61   N.  E.  428.     See  People  v.  58  Twin  Village  Water  Co.  v.  Da- 
Chicago   Teleph.   Co.,   220   111.    238,  mariscotta    Gas    Light    Co.,  98  Me. 
77  N.  E.  245;  Chicago  Teleph.  Co.  v.  325,  56  Atl.  1112. 
Northwestern  Teleph.   Co.,    199   111.  59  People   ex   rel.    Kunze   v.    Fort 
324,  65  N.  E.  329,  8  Am.  Elec.  Cas.  Wayne    &    Elmwood    Ry.    Co.,    92 
81.     See  Baxter  Springs,  City  of,  v.  Mich.  522,  525,  52  N.  W.  1010,  per 
Baxter   Springs  Light  &  Power  Co.,  Montgomery,  J.;  People  ex  rel.  May- 
64   Kan.    591,    68   Pac.    63,    8    Am.  bury  v.   Mutual   Gas  Light  Co.,   38 
Elec.  Cas.  125;  Duluth,  City  of,  v.  Mich.  154,  155,  per  Campbell.  J. 
Duluth   Teleph.  Co.,    84   Minn.  486,  "State,  Caldwell,  v.  Citizens'  St. 
8   Am.    Elec.    Cas.    136,   87   N.   W.  Ry.  Co.  (Neb.,  1907),  141  N.  W.  429. 
1128.  The    charter    rights    are    derived 

111 


§    48  NATURE    OF   FRANCHISE   CONTINUED — 

that  a  grant  by  private  act  of  a  right  to  maintain  a  ferry  is  a 
mere  license  or  gratuity  and  not  a  contract.61  A  distinction 
also  exists  between  a  franchise  as  a  special  privilege  conferred 
by  the  legislature,  and  not  belonging  of  common  right  to  the 
citizens  of  the  country  generally,  and  a  mere  license  intended 
by  the  legislature  as  a  means  for  the  regulation  of  a  business 
and  which  confers  no  special  right  or  privilege  upon  the  holder.62 
It  is  also  declared  that  a  consent,  given  to  a  department  store 
by  the  proper  municipal  authorities,  to  construct  a  spur  track 
connecting  with  a  street  railroad  for  the  conveyance  of  goods 
confers  no  franchise,  but  is  merely  a  license  to  private  parties.63 
So  a  grant  by  the  legislature  may  be  a  mere  gratuity  conferring 
only  a  privilege,  as  where  it  is  not  an  act  of  incorporation  and 
confers  no  chartered  rights  and  does  not  amount  to  a  contract.64 

§  48.  Same  Subject  Continued.65 — Under  a  Louisiana  de- 
cision the  authorities  of  a  city  are  not  invested  with  legal 
power  to  create  corporations  or  to  grant  franchises;  that  can 
be  done  only  by  the  State;  a  city  can,  however,  concede  a 

from  the  State,  and  the  provisions  of  110,  84  N.  W.  802,  cited  in  Western 

the  ordinance,  under  which  the  con-  Union    Telegraph    Co.    v.    City    of 

sent  of  a  majority  of  the  electors  is  Omaha  (Neb.,  1905),  103  N.  W.  84-86. 

secured,  obligate  the  street  railway  61  Robinson  v.   Lamb,   126  N.  C. 

company  to  construct  its  street  rail-  492,  36  S.  E.  29.     Examine  Roy  v. 

way  within  the  time  and  in  the  man-  Henderson,  132  Ala.  175,  31  So.  457. 

ner  stated,  and  make  it  subject  to  62  Martens  v.  The  People,  186  111. 

such  regulations  as  might   lawfully  314,  318,  57  N.  E.  871  (holding  that 

be    established    by    ordinance;    the  a  license  to  keep  a  saloon  is  not  a 

corporation  is  thereby  privileged  or  franchise).     See   §  21,   herein, 

permitted  to  enter  upon  the  streets  of  63  Hatfield  v.  Strauss,   189  N.  Y. 

the  city  for  the  purpose  of  construct-  208,  218,  224,  226,  per  O'Brien,  J., 

ing  its  tracks  and  to  carry  out  the  Bartlett,  J.,  and  Chase,  J.,  in  dis- 

purposes  of  its  organization;  and  it  senting  opinion, 

thereby  derives  no  other  or  greater  64  Gregory  v.  Trustees  of  Shelby 

right    than    a    privilege,    license,    or  College,  2  Mete.  (59  Ky.)  589  (a  case 

permission  to  enter  upon  the  streets  of    a   lottery   privilege).     But    com- 

for  such  purpose.     Its  grant  of  cor-  pare  Commonwealth  v.  City  of  Frank- 

porate  franchises  or  privileges  is  not  fort,  13  Bush  (76  Ky.),  185,  189  (as 

determined  by  such  ordinance,  but  to  lottery  privilege  being  in  the  na- 

by    general    law.     Lincoln    St.    Ry.  ture  of  a  franchise). 

Co.  v.  City  of  Lincoln,  61  Neb.  109,  65  See  §§  14-16,  herein. 

112 


DISTINCTIONS  §   48 

right  of  way  through  its  streets,  but  such  right  does  not  con- 
stitute a  franchise  in  law.  The  privileges  so  conceded  are  held 
to  be  "secondary  franchises,"  instrumentalities  by  means  of 
which  the  corporate  powers  granted  by  the  charter  may  be 
exercised.66  Where  the  word  "franchise"  is  not  used  in  an 
ordinance  and  it  does  not  purport  to  grant  any  franchise,  and 
it  is  apparent  that  such  ordinance  is  only  intended  to  exercise 
the  authority  to  regulate,  such  regulation  is  not  the  grant  of  a 
franchise  and  no  effective  municipal  franchise  is  granted  dis- 
tinct from  the  Federal  franchise  which  a  telegraph  company 
may  hold  under  the  post-roads  act,  even  though  the  character 
of  the  ordinance,  in  view  of  its  provisions,  may  have  the  char- 
acter of  an  attempted  grant  of  a  franchise.67  The  right  of  a 
corporation  to  occupy  city  streets  for  railroad  purposes  is  a 
franchise  which  primarily  resides  in  the  State  and  must  pro- 
ceed from  that  source  whatever  may  be  the  agencies  through 
which  it  is  conferred; 68  and  where  a  city  has  delegated  powers 
it  acts  as  agent  for  the  State  so  that  its  grant  by  ordinance 
conferring  such  rights  is  a  franchise.69  So  a  grant  by  ordinance 
of  an  exclusive  right  to  supply  a  city  with  water  is  a  fran- 
chise,70 as  is  also  a  grant  by  a  common  council  to  construct 
and  operate  a  system  of  waterworks,  where  such  city  council 
is  an  authorized  legislative  agency  of  the  State.71  The  same 
rule  applies  where  consent  by  town  authorities,  acting  under 

88  Shreveport  Traction  Co.  v.  Kan-  Grant  to  street  railway  company 

sas  City,  Shreveport  &  Gulf  Ry.  Co.,  is  franchise  where  city  empowered 

119  La.  759,  44  So.  457.  by  statute  to  make  grants  for  use  of 

87  Western  Union  Teleg.  Co.  v.  streets.  Linden  Land  Co.  v.  Mil- 
City  of  Visalia,  149  Cal.  744,  87  Pac.  waukee  Elec.  Ry.  &  Light  Co.,  107 
1023.  Wis.  493,  83  N.  W.  851. 

88  Adee  v.  Nassau  Elec.  Rd.  Co.,  88  Port  of  Mobile  v.  Louisville  & 
72  N.  Y.  Supp.  992,  1000,  65  App.  Nashville  Rd.  Co.,  84  Ala.  115,  4  So. 
Div.  529,  106  N.  Y.  St.  R.  992,  per  106;  Los  Angeles  Ry.  Co.  v.  City  of 
Woodward,  J.,  citing  Beekman  v.  Los  Angeles  (Cal.,  1907),  92  Pac. 
Third  Ave.  Rd.  Co.,  153  N.  Y.  144,  490. 

152,  47  N.  E.  277.     Principal  case  ,0  Cedar    Rapids    Water    Co.     v. 

aff'd,  173  N.Y.  580  (Mem.),  65  N.  E.  Cedar  Rapids,  118  Iowa,  234,  91  N. 

1113.     See  also  Baltimore,  City  of,  W.   1081. 

v    United   Rys.  &  Elec.   Co.    (Md.,  "State    v.    Portage    City    Water 

1908),  68  Atl.  557.  Co.,  107  Wis.  441,  83  N.  W.  697. 

8  113 


§   48  NATURE   OF  FRANCHISE   CONTINUED — 

a  statute,  is  given  to  a  gas  company  to  occupy  and  use  the 
public  streets  and  highways  for  the  purpose  of  conducting 
and  delivering  gas,  as  such  grant  constitutes  a  franchise.72 
Again,  it  is  declared,  in  a  Newark  case,  that  the  consent 
which  the  "municipal  authorities,"  under  a  statute  are  re- 
quired to  give,  operates  to  create  a  franchise  by  which  is 
vested  in  the  corporation  receiving  it  an  indefeasible  interest 
in  the  land  constituting  the  streets  of  a  municipality.  Al- 
though the  franchise  comes  from  the  State,  nevertheless,  the 
act  of  the  local  authorities,  who  represent  the  State  by  its 
permission  and  for  that  purpose,  constitutes  the  act  upon 
which  the  law  operates  to  create  the  franchise.  The  consent 
of  local  authorities  is  unnecessary  as  the  State  may  grant 
the  franchise  directly,  although  the  tendency  is  to  delegate 
the  power  to  municipal  or  local  authorities.  The  legal  effect 
of  the  consent  is,  however,  the  same  as  if  the  local  authorities 
in  form  granted  the  franchise  and  the  interest  in  the  land.73 
In  another  case  in  the  same  State  it  is  decided  that  the  right, 
created  by  a  resolution  of  the  trustees  of  a  town,  vested  by 
royal  charters  granted  in  colonial  days,  with  title  and  sov- 
ereignty over  the  waters  of  a  bay  in  that  town  and  the  lands 
thereunder,  authorizing  a  riparian  proprietor  "to  make  a 
roadway  and  to  erect  a  bridge"  across  the  bay,  the  said  bridge 
to  be  a  drawbridge,  and  providing  that  there  shall  be  no  un- 
necessary delay  to  those  navigating  the  waters  of  the  bay, 
is  a  franchise  as  distinguished  from  a  license  or  an  easement.74 
In  this  case,  the  court,  per  Vann,  J.,  said:  "We  think  it  is  a 
franchise,  because  it  was  granted  in  the  exercise  of  a  govern- 

12  People  ex  rel.  Woodhaven   Gas  franchise    proceeds   from   the    State 

Co.  v.  Deehan,   153  N.  Y.   528,  47  and  the  consent  of  the  local  authori- 

N.  E.  787,  rev'g  11  App.  Div.  175.  ties  is  merely  to  a  form  of  street  use, 

73  Ghee    v.    Northern    Union    Gas  even   though   it    has   been    asserted 

Co.,  158  N.  Y.  510,  513,  53  N.  E.  692.  that  a  distinction  exists  between  the 

This  case  reverses  56  N.  Y.  Supp.  grant  of  a  franchise  and  the  consent 

450,  34  App.  Div.  551.     But  it  was  of  a  municipality, 
said    in   the   reversed   case,   that   a        74  Trustees     of     Southampton     v. 

municipality  acting  under  a  properly  Jessup,  162  N.  Y.  122,  56  N.  E.  538, 

delegated    legislative    power   or   au-  rev'g  42  N.  Y.  Supp.  4,  10  App.  Div. 

thority  may  grant  a  franchise,  as  the  456. 

114 


DISTINCTIONS  §    48 

mental  power  conferred  by  royal  charter  in  colonial  days.75 
It  is  a  special  privilege,  because  it  is  not  of  common  right; 
is  permanent,  because  there  is  no  limitation  as  to  time,  and  is 
of  public  concern,  because  it  relates  to  the  public  domain. 
A  roadway  necessarily  includes  a  right  of  way,  which  when 
granted  by  a  legislative  body  is  a  franchise.  The  resolution 
has  the  same  effect  as  if  a  like  privilege  had  been  granted  by 
act  of  the  legislature  in  relation  to  similar  lands  held  by  the 
State  for  public  use.  A  grant  by  a  resolution  of  a  legislative 
body  is  as  effective  as  a  grant  by  deed  of  an  executive  body 
and  is  the  usual  form  in  which  franchises  are  conferred."  But, 
although  a  right  to  construct  a  railroad  or  a  telephone  system 
is  conferred  by  the  proper  city  authorities,  still  if  the  munici- 
pality has  no  power  to  make  such  a  grant  it  is  invalid.76  In 
conclusion,  it  would  seem  to  be  immaterial  whether  the  grant 
is  made  directly  by  the  legislature  or  through  the  agency  of 
a  municipality  or  like  body  acting  under  delegated  powers 
and  exercising  proper  legislative  authority,  and,  therefore,  in 
so  far  as  this  question  as  to  distinctions  is  concerned,  such 
grant  ought  in  the  latter  case  to  be  considered  as  a  franchise 
as  well  as  in  the  former  instance. 

75  Citing  People  ex  rel.  Howell  v.  etc.,  of  City  of   New  York,  3  Duer 

Jessup,    160   N.   Y.  249,   54    N.    E.  (10  N.  Y.  Super.  C),   119;  State  v. 

682.  Milwaukee  Independent  Teleph.  Co. 

"State  of  New  York  v.  Mayor,  (Wis.,  1907),  114  N.  W.  108,  315. 


115 


§  49 


DEFINITIONS,   CLASSIFICATION, 


CHAPTER  V. 

DEFINITIONS,    CLASSIFICATION,    NATURE    OF    CORPORATION    AND 

DISTINCTIONS. 


§  49.  Change  in  Nature  and  Rela- 
tions of  Corporations — Ef- 
fect upon  Early  Definitions. 

50.  Definitions  of  a  Corporation. 

51.  Summary  of  Expressions  Used 

in  Defining  a  Corporation. 

52.  To  What  Extent  Definition  of 

Corporation  Includes  a  Com- 
pany, Association  and  Joint- 
Stock  Association  or  Com- 
pany— Partnership . 

53.  Same  Subject — Continued. 

54.  Same  Subject — Conclusion. 

55.  General  Classification  of  Cor- 

porations— Public  and  Pri- 
vate. 

56.  General  Classification  of  Cor- 

porations Continued— Quasi- 
Public  Corporations — Quasi- 
Municipal  Corporations. 

57.  Other  Divisions  or  Kinds  of 

Corporations. 

58.  Classification    as   Affected    by 

Constitutions  and  Statutes. 

59.  Classification    as    Affected   by 

Public  Service  Commission 
Law  or  Public  Utilities  Act. 

60.  Corporation      Considered      as 


Civil  or  Political  Institu- 
tion— Distinctions  Between 
Incorporation  and  Corpora- 
tion— Distinction  Between 
Public  and  Private  Corpora- 
tions. 
§  61.  Public,  Quasi-Public  and  Pri- 
vate Corporations  Defined 
and  Distinguished. 

Same    Subject — Continued. 

Duties,  Obligations  and  Power 
as  affecting  Classification  or 
Nature  of  Corporations — 
Public  Service  Corpora- 
tions. 

To  what  Extent  Corporations 
are  "Persons" — Generally. 
65.  To  What  Extent  Corporations 
are  "Persons"  Under  Stat- 
utes. 

Corporations  as  "  Persons  "  un- 
der Constitution  of  United 
States. 

Corporations  as  "Citizens"  for 
Federal  Jurisdiction  Pur- 
poses— Not  "Citizens"  Un- 
der Constitution  of  United 
States. 


62. 
63. 


64. 


66. 


67. 


§  49.  Change  in  Nature  and  Relations  of  Corporations — 
Effect  upon  Early  Definitions. — What  is  said  by  the  court  in 
a  case  in  the  United  States  Supreme  Court,  decided  in  1870, 
is  pertinent  here;  it  is  as  follows:  "The  subject  of  the  powers, 
duties,  rights  and  liabilities  of  corporations,  their  essential 
116 


NATURE   OF   CORPORATION   AND  DISTINCTIONS  §   50 

nature  and  character,  and  their  relations  to  the  business  trans- 
actions of  the  community,  have  undergone  a  change  in  this 
country  within  the  last  half  century,  the  importance  of  which 
can  hardly  be  overestimated.  They  have  entered  so  ex- 
tensively into  the  business  of  the  country,  the  most  important 
part  of  which  is  carried  on  by  them,  as  banking  companies, 
telegraph  companies,  insurance  companies,  etc.,  and  the  de- 
mand for  the  use  of  corporate  powers  in  combination  with  the 
capital  and  the  energy  required  to  conduct  these  operations 
is  so  imperative,  that  both  by  statute,  and  by  the  tendency 
of  the  courts  to  meet  the  requirements  of  these  public  neces- 
sities, the  law  of  corporations  has  been  so  modified,  liberalized 
and  enlarged,  as  to  constitute  a  branch  of  jurisprudence  with 
a  code  of  its  own,  due  mainly  to  very  recent  times.  To  at- 
tempt, therefore,  to  define  a  corporation,  or  limit  its  powers 
by  the  rules  which  prevailed  when  they  were  rarely  created 
for  any  other  than  municipal  purposes,  and  generally  by  royal 
charter,  is  impossible  in  this  country  and  at  this  time."  1 

§  50.  Definitions  of  a  Corporation. — Under  a  definition 
given  in  a  comparatively  recent  case  in  the  Federal  Supreme 
Court  a  corporation  is  but  an  association  of  individuals  with 
a  distinct   name  and  legal  entity.2    The  definition,  however, 

1  Liverpool  Ins.  Co.  v.  Massachu-  compose  it,  and  is  for  certain  pur- 
setts,  10  Wall.  (77  U.  S.)  566,  574,  poses,  considered  as  a  natural  per- 
575,  19  L.  ed.  1029,  per  Miller,  J.  son.  *  *  *  It  means  an  intel- 
See  also  Thomas  v.  Dakin,  22  Wend,  lectual  body,  composed  of  individuals, 
(N.  Y.)  1,  70.  and  created  by  law;   a  body  which  is 

2  Hale  v.  Henkel,  201  U.  S.  43,  50  united  under  a  common  name,  and 
L.  ed.  652,  26  Sup.  Ct.  370.  See  also  the  members  of  which  are  capable 
Pembina  Consolidated  Silver  Mining  of  succeeding  each  other,  that  the 
&  Milling  Co.  v.  Pennsylvania,  125  U.  body  (like  a  river),  continues  always 
S.  181,  189,  8  Sup.  Ct.  737,  31  L.  ed.  the  same,  notwithstanding  the  change 
650.    See  §  51,  herein.  in    the    parts    which    compose    it." 

"A  corporation  is  a  body,  created  Angell   &   Ames  on  Corp.   (9th  ed.) 

by    law,    composed    of    individuals  §§  1,  30. 

united  under  a  common  name,  the       "A    body    politic    or    corporate, 

members  of  which  succeed  each  other,  formed  and  authorized  by  law  to  act 

so  that  the  body  continues  the  same,  as  a  single  person,  and  endowed  by 

notwithstanding  the  individuals  who  law  with  the  capacity  of  perpetual 

117 


§   51  DEFINITIONS,    CLASSIFICATION, 

which  has  been  the  most  extensively  quoted,  adopted  and 
relied  upon,  is  that  given  by  Chief  Justice  Marshall,  as  fol- 
lows: ''A  corporation  is  an  artificial  being,  invisible,  intangi- 
ble and  existing  only  in  contemplation  of  law.  Being  the 
mere  creature  of  law,  it  possesses  only  those  properties  which 
the  charter  of  its  creation  confers  upon  it,  either  expressly,  or 
as  incidental  to  its  very  existence.  These  are  such  as  are 
supposed  best  calculated  to  effect  the  object  for  which  it  was 
created.  Among  the  most  important  are  immortality,  and  if 
the  expression  may  be  allowed,  individuality;  properties  by 
which  a  perpetual  succession  of  many  persons  are  considered 
as  the  same  and  may  act  as  a  single  individual."  3  It  is  said, 
however,  that:  'It  is  not  essential  to  the  idea  of  a  corporation 
that  it  shall  have  perpetual  existence,  for  limited  corporations 
are  a  matter  of  most  common  occurrence,  whether  organized 
under  general  or  special  laws.  Neither  is  it  essential  that  it 
shall  have  capacity  to  sue  and  be  sued  under  its  corporate 
name,  for  it  may  be  authorized  only  to  sue  in  the  name  of  its 
officers,  as  was  the  case  under  the  New  York  banking  law. 
That  it  shall  have  capacity  to  sue  and  be  sued  under  some 
name  standing  for  the  collective  body  is  all  that  is  necessary. 
In  the  last  analysis,  the  only  essential  attribute  of  a  corpora- 
tion is  the  capacity  to  exist  and  act  within  the  powers  granted, 
as  a  legal  entity,  apart  from  the  individual  or  individuals  who 
constitute  its  members."  4 

§  51.  Summary  of  Expressions  Used  in  Defining  a  Cor- 
poration.— The  following  summary  of  the  expressions  used  by 
the  courts  in  defining  a  corporation  evidences  a  substantial 
agreement  upon  certain  essential  points  irrespective  of  the 
form  in  which  any  particular  court  has  given  such  definition. 

succession;  a  society  having  the  ca-  Coke  Co.,  86  Fed.  585,  589,  30  C.  C.  A. 

pacity  of  transacting  business  as  a  293,  58  U.  S.  App.  444,  per  Lurton, 

single  individual."     Webster's  Diet.  Cir.  J.     That  this  case  is  overruled, 

8  Dartmouth  College  v.  Woodward,  see  Great  Southern  Fire  Proof  Hotel 

4  Wheat.  (17  U.  S.)  518,  636,  4  L.  ed.  Co.  v.  Jones,  177  U.  S.  449,  457,  44 

629.    See  note  to  §  51,  herein.  L.  ed.  842,  20  Sup.  Ct.  690,  per  Har- 

*  Andrews    Bros.    v.    Youngstown  Ian,  J. 

118 


NATURE   OF   CORPORATION    AND   DISTINCTIONS  §   51 

Thus  a  corporation  is  defined  as:  "An  artificial  being,  invisible, 
intangible;  an   artificial  body;  an  artificial  legal  person;  an 
artificial  person  representing  shareholders;  an  artificial  person 
created  to  become  the  business  representative,  agent  or  trustee 
of  those  furnishing  money  for  the  business;  an  artificial  person 
created  by  statute;  an  intelligent  though  artificial  person;  an 
intellectual  body  created  by  law;  a  legal  person;  a  legal  being, 
a  legal  institution;  a  fictitious  person;  an  ideal  body;  in  a  cer- 
tain sense  legislative  bodies;  a  creature  of  the  law*  a  body 
created  by  the  supreme  power  of  the  State;  a  creature  existing 
by  statute;  created  by  the  legislature;  a  franchise  created  by 
the  king;  an  association  of  individuals;  an  association  of  per- 
sons; a  collection  or  association  of  individuals  united  in  one 
body;  composed  of  persons  made  into  one  body;  an  aggregate 
body;  an  aggregation  of  individuals  united  by  operation  of  law 
so  as  to  form  but  one  person;  a  collective  unity;  a  body  con- 
sisting of  one  or  more  persons;  a  body  consisting  of  one  or 
more  natural  persons;  a  collection  of  many  individuals  in  one 
body;  an  assembly  of  many  into  one  body;  a  body  composed 
of  persons  which  the  law  prescribes;  a  body  united  in  its  fran- 
chises and  liberties;  an  artificial  being  existing  only  in  con- 
templation of  law;  a  body  distinct  in  law  from  all  its  members, 
or  existing  independent  of  its  members;  a  distinct  entity;  a 
legal  entity;  an  entity  distinct  from  its  members;  a  body  politic 
or  corporate;  a  franchise  for  a  number  of  persons  to  exist  as  a 
body  politic;  existing  only  in  political  capacity  or  in  both  a 
political  and  natural  capacity;  composed  of  individuals  vested 
with  a  political  character  and  personality  distinct  from  their 
natural  capacity;  composed  of  individuals  who  subsist  as  a 
body  politic;  a  body  united  for  a  lawful  purpose;  a  mere  creature 
of  the  law  established  for  special  purposes;  a  personification 
of  certain  legal  rights;  a  body  established  by  law  with  usually 
some  specific  purpose,  or  for  certain  specific  purposes;  a  body 
with  special  privileges  not  possessed  by  individuals;  a  body 
composed  for  the  purpose  of  obtaining  franchises  or  privileges 
not  allowed  to  corporators  as  individuals;  composed  of  in- 
dividuals united  under  a  common  name,  or  a  special  name; 

119 


§    51  DEFINITIONS,    CLASSIFICATION, 

having  a  distinctive  artificial  name;  subsisting  under  a  special 
denomination;  having  common  stock  and  common  business;  a 
person  or  legal  being  capable  of  transacting  some  kind  of  busi- 
ness as  a  natural  person;  a  person  with  capacity  to  transact 
business  as  an  individual;  having  power  or  capacity  to  act 
as  an  individual ;  having  capacity  to  act  as  a  single  individual ; 
a  body  acting  in  many  respects  as  individuals;  having  certain 
powers  and  duties  of  natural  persons;  having  like  powers  and 
liabilities  as  natural  persons;  an  artificial  being  with  capacity 
of  acting  within  the  scope  of  its  charter  as  a  natural  person; 
a  body  which  acts  and  speaks  through  its  officers  or  agents; 
a  legal  institution  conferring  on  its  members  powers,  privileges 
and  immunities  which  they  would  not  otherwise  possess;  a 
personification  of  certain  legal  rights;  a  body  possessed  with 
power  to  do  corporate  acts,  but  with  prescribed  powers,  or 
with  powers  prescribed  by  law,  or  with  powers  only  of  the 
kind  and  degree  conferred  by  law;  a  body  constituted  by 
policy  with  capacity  to  take  or  do;  being  in  its  corporate 
capacity  a  mere  creature  of  the  act  to  which  it  owes  its  exist- 
ence; receiving  all  its  powers  from  the  act  creating  it;  a  body 
with  its  existence,  powers  and  liabilities  fixed  by  the  act  of 
incorporation;  a  body  limited  to  one  peculiar  mode  of  action; 
a  body  whose  existence  is  evidenced  by  the  exercise  of  certain 
franchises  and  functions;  a  person  vested  with  power  and 
capacity  to  make  contracts  within  the  scope  of  its  powers;  a 
person  with  capacity  to  take  and  grant  property  as  an  indi- 
vidual; a  body  with  right  to  sue  and  be  sued  like  natural  per- 
sons; composed  of  constantly  changing  members,  or  with  a 
right  to  change  of  members  without  dissolution;  a  succession 
of  individuals ;  in  law  a  single  continuous  person ;  a  body  with 
such  a  grant  of  privileges  as  secures  a  succession  of  members 
without  changing  the  identity  of  the  body,  a  body  continued 
by  a  succession  of  members,  as  its  members  succeed  each  other 
so  that  the  body  is  always  the  same  notwithstanding  change 
of  individuals;  a  body  with  capacity  of  succession  irrespective 
of  change  in  membership;  or  with  a  capacity  of  succession  in 
perpetuity,  by  transfer  of  shares;  a  body  with  capacity  of 
120 


NATURE    OF    CORPORATION   AND   DISTINCTIONS 


§  52 


succession,  perpetual  or  limited;  a  permanent  body  or  thing;  a 
body  which  never  dies.5 

§  52.  To  What  Extent  Definition  of  Corporation  Includes 
a  Company,  Association  and  Joint-Stock  Association  or 
Company — Partnership. — The  constitution  of  New  York  pro- 


5  See  the  following  cases  for  defini- 
tions of  a  corporation.  (Explanatory 
note.  Cases  preceded  by  a  *  give,  in 
whole  or  in  part,  Chief  Justice  Mar- 
shall's definition,  quoted  in  the  pre- 
ceding section;  cases  preceded  by  a 

*  and  also  a  f  give  same  definition 
and  also  another  or  other  definitions. 
Unmarked  cases  give  still  other  and 
different  definitions.) 

United  States:  *  Waters-Pierce 
Oil  Co.  v.  Texas,  177  U.  S.  28,  44,  44 
L.  ed.  657,  20  Sup.  Ct.  518,  per  Mc- 
Kenna,  J.;  Kansas  Pac.  Rd.  Co.  v. 
Atchison,  Topeka  &  Santa  Fe  Rd. 
Co.,  112  U.  S.  414,  416,  5  Sup.  Ct.  208, 
28  L.  ed.  794;  Baltimore  &  Potomac 
Rd.  Co.  v.  Fifth  Baptist  Church,  108 
U.  S.  317,  330,  27  L.  ed.  739,  per 
Field,  J.;  Ohio  &  Mississippi  Rd.  Co. 
v.  Wheeler,  1  Black  (66  U.  S.),  286, 
295,  17  L.  ed.  130  ("  a  corporation  ex- 
ists only  in  contemplation  of  law  and 
by  force  of  law");  *  Marshall  v.  Bal- 
timore &  Ohio  Rd.  Co.,  16  How.  (57 
U.  S.)  314,  327,  14  L.  ed.  953,  per 
Grier,  J.;  Louisville,  Cincinnati  & 
Charleston  Rd.  Co.  v.  Letson,  2  How. 
(43  U.  S.)  497,  558,   11  L.  ed.  553; 

*  Runyan  v.  Lessee  of  Coster,  14  Pet. 
(39  U.  S.)  122,  129,  10  L.  ed.  382,  per 
Thompson,  J.;  *  Bank  of  Augusta  v. 
Earle,  13  Pet.  (38  U.  S.)  519,  587,  10 
L.  ed.  274,  per  Taney,  C.  J.;  Bank  of 
United  States  v.  Deveaux,  5  Cranch 
(9  U.  S.),  61  88,  per  Marshall,  C.  J.; 

*  Seattle  Gas  &  Electric  Co.  v.  Citi- 
zens' Light  &  Power  Co.,  123  Fed. 
588,  592,  per  Hanford,  Dist.  J.;  An- 
drews   Bros.    v.    Youngstown    Coke 


Co.,  86  Fed.  585,  588,  589,  30  C.  C.  A. 
293,  58  U.  S.  App.  444,  per  Lurton, 
Cir.  J.  [quoting  Kyd;  Thomas  v. 
Dakin,  22  Wend.  (N.  Y.)  9,  70,  1 
Dill.  Munic.  Corp.  (3d.  ed.)  §  18;  An- 
gel &  Ames  on  Corp.  §§  1-30];  Ames 
v.  Union  Pac.  Rd.  Co.,  62  Fed.  7,  14 
("a  corporation  is  organized  capital; 
it  is  capital  consisting  of  money  and 
property,"    per    Caldwell,    Cir.    J.); 

*  Ross  v.  Chicago,  M.  &  St.  P.  Ry. 
Co.,  8  Fed.  544,  per  McCrary,  J.  (simi- 
lar to  first  part  of  Chief  Justice 
Marshall's  definition);  Santa  Clara, 
County  of,  v.  Southern  Pac.  Rd.  Co., 
18  Fed.  385,  402. 

Alabama:  *  Dillard  v.  Webb,  55 
Ala.  468,  474,  per  Stone,  J.;  Askew 
v.  Hale  County,  54  Ala.  639,  642,  25 
Am.  Rep.  730,  per  Brickell,  C.  J. 

Arkansas :  *t  Conway,  Ex  parte, 
4  Ark.  (4  Pike)  302,  351,  per  Lacy,  J. 

California:  *  San  Luis  Water  Co. 
v.  Estrada,  117  Cal.  168,  177,  48  Pac. 
1075,  per  Chipman,  C;  Dean  v. 
Davis,  51  Cal.  406,  410,  per  Crockett, 
J.  (code  definition). 

Colorado :  *  Utley  v.  Clark-Guard- 
ian Lode  Min.  Co.,  4  Colo.  369,  372, 
per  Deady,  J. 

Connecticut:  Barber  v.  Inter- 
national Co.  of  Mexico,  73  Conn.  587, 
606,  48  Atl.  758,  per  Baldwin,  J.; 

*  Coite  v.  Society  for  Savings,  32 
Conn.  173,  185,  per  McCurdy,  J.; 
Hartford  Fire  Ins.  Co.  v.  Hartford, 
3  Conn.  15,  25,  per  Hosmer,  Ch.  J. 

Delaware:  *  Higgins  v.  Down- 
ward, 8  Houst.  (Del.)  227,  240,  40 
Am.  St.  Rep.  141,  32  Atl.  133,  per 

121 


§   52  DEFINITIONS,    CLASSIFICATION, 

vides  that:  "The  term  corporations  as  used  in  this  article 
shall  be  construed  to  include  all  associations  and  joint-stock 
companies  having  any  of  the  powers  or  privileges  of  corpora- 

Saulsbury,  Ch.;  *f  Coyle  v.  Mcln-  793  (Code  definition),  per  Provosty, 
tire,  7  Houst.  (Del.)  44,  88,  40  Am.  J.;  State  v.  New  Orleans  Debenture 
St.  Rep.  109,  30  Atl.  728,  per  Sauls-  Redemption  Co.,  51  La.  Ann.  1827, 
bury,  Ch..;  *  Deringer  v.  Deringer,  1834,  26  So.  586,  per  Breaux,  J. 
5  Houst.  (Del.)  416,  429,  1  Am.  St.  Maine:  Goddard  v.  Grand  Trunk 
Rep.  150,  per  Wales,  J.  Ry.  Co.,  57  Me.  202,  241,  per  Tapley, 
Georgia:  *f  Goldsmith  v.  Rome  J.;  *  Miller  v.  Ewer,  27  Me.  509,  518, 
Rd.  Co.,  62  Ga.  473,  481,  per  Bleck-  46  Am.  Dec.  619,  per  Shepley,  J. 
ley,  J.;  Central  Rd.  &  Banking  Co.  v.  Massachusetts:  Central  Bridge 
State,  54  Ga.  401,  406,  per  Warner,  Corp.  v.  Bailey,  8  Cush.  (62  Mass.) 
C.  J.  (giving  Code  and  Comyns,  Dig.  319,  322,  per  Fletcher,  J.;  Pratt  v. 
definitions);  Hightower  v.  Thornton,  Bacon,  10  Pick.  (27  Mass.)  123,  125, 
8  Ga.  486,  492,  52  Am.  Dec.  412  126;  Phillips  Academy  v.  King,  12 
("  corporations  aggregate  are  but  Mass.  546,  554,  per  Thatcher,  J. 
associations  of  individuals")  per  Michigan:  Thompson  v.  Waters, 
Lumpkin,  J.;  South  Carolina  Rd.  Co.  25  Mich.  214,  223,  224,  per  Chris- 
v.  McDonald,  5  Ga.  531,  535,  per  Nis-  tiancy,  Ch.  J.;  *  Swan  v.  Williams, 
bet,  J.  2  Mich.  (1  Gibbs)  427,  433,  per  Mar- 
Illinois:  Sellers  v.  Greer,  172  111.  tin,  J. 
549,  50  N.  E.  246,  40  L.  R.  A.  589;  Mississippi:  *  Bank  of  the  United 
Fietsam  v.  Hay,  122  111.  293,  295,  3  States  v.  State,  12  Smedes  &  Marsh 
Am.  St.  Rep.  492,  13  N.  E.  501,  per  (20  Miss.),  456,  459,  per  Clayton,  J. 
Mulkey,  J.;  *  Mather  v.  City  of  Missouri:  State  v.  Turley,  142  Mo. 
Ottawa,  114  111.  659,  664,  3  N.  E.  403,  410,  44  S.  W.  267,  268,  per  Bur- 
216,  per  Craig,  J.;  Porter  v.  Rock-  gess,  J.;  Jones  v.  Williams,  139  Mo. 
ford,  Rock  Island  &  St.  Louis  Rd.Co.,  1,  25,  61  Am.  St.  Rep.  436,  37  L.  R. 
76  111.  561,  573,  574,  per  Scholfield,  A.  682,  per  Macfarlane,  J.;  State  v. 
J.;  People  ex  rel.  Cairo  &  St.  Louis  Payne,  129  Mo.  468,  478,  31  S.  W. 
Ry.  Co.  v.  Dupuyt,  71  111.  651,  655,  797,  33  L.  R.  A.  576,  per  Macfarlane, 
per  Craig,  J.  J. 

Indiana:      Tippecanoe       County,  Nebraska:  *  Horbach  v.  Tyrell,  48 

Board  of  Commissioners  of,  v.  Lafay-  Neb.  514,  526,  37  L.  R.  A.  434,  67  N. 

ette,  Muncie  &  Bloomington  Rd.  Co.,  W.  485,  per  Ryan,  J.,  in  dissenting 

50  Ind.  85,  108,  per  Biddle,  J.;  *  Cut-  opinion. 

shaw  v.  Fargo,  8  Ind.  App.  691,  693,  Nevada:    *t  Edwards    v.    Carson 

36  N.  E.  650,  34  N.  E.  376,  per  Gavin,  Water  Co.,  21  Nev.  469,  479,  34  Pac. 

C  J.  381,  per  Murphy,  C.  J. 

Kansas:    *  Land    Grant    Ry.    &  New  Jersey:    North  Hudson  Co. 

Trust  Co.  v.  Coffey    County,  Board  Ry.  Co.  v.  May,  48  N.  J.  L.  401,  5 

of  Commissioners   of,    6   Kan.    245,  Atl.  276. 

253,  per  Valentine,  J.  New  York:  Anglo-American  Pro- 
Louisiana:  State  ex  rel.  Saunders  vision  Co.   v.   Davis  Provision  Co., 
v.  Kohnke,  109  La.  838,  843,  33  So.  169  N.  Y.  506,  511,  88  Am.  St.  Rep. 

122 


NATURE    OF   CORPORATION   AND   DISTINCTIONS  §   52 

tions  not  possessed  by  individuals  or  partnerships.  And  all 
corporations  shall  have  the  right  to  sue  and  shall  be  subject 
to  be  sued  in  all  courts  in  like  cases  as  natural  persons."  6 

608,  per  Gray,  J.;  *  Codd  v.  Rath-  Texas:  *  Waterbury  &  Co.  v.  City 

bone,  19  N.  Y.  37,  40,  per  Grover,  of  Laredo,  60  Tex.  519,  521. 

J.;  *  Curtis  v.  Leavitt,  15  N.  Y.  9,  Utah:   Weyeth  Hardware  &  Mfg. 

257,    per   Selden,    J.,    in    dissenting  Co.  v.  James-Spencer-Bateman  Co., 

opinion;     *f  Warner    v.     Beers,     23  15  Utah,  110,  121,  47  Pac.  604,  per 

Wend.  (N.  Y.)  103,  123,  124;  Thomas  Bartch,  J. 

v.  Dakin,  22  Wend.  (N.  Y.)  9,  70,  71,  Virginia:    *  Roanoke    Gas  Co.  v. 
104;   Niagara  County  v.   People,   7  Roanoke,  88  Va.  810,  824,  14  S.  E. 
Hill    (N.    Y.),    504,    507;    Farmers'  665,  per  Richardson,  J. 
Loan  &  Trust  Co.  v.  New  York,  7  West   Virginia:    *  Roanoke    Gas 
Hill    (N.   Y.),   261,   283,   per  Scott,  Co.  v.  Clarksburg,  30  W.  Va.  491, 
Senator;    Purdy    v.    People,    4    Hill  494,   4   S.    E.   774,   per   Woods,   J.; 
(N.  Y.),  384,  406,  per  Scott,  Senator;  *  Hope  v.  Valley  City  Salt  Co.,  25 
People  v.   Assessors  of  Watertown,  W.  Va.  789,  797,  per  Woods,  J. 
1  Hill  (N.  Y.),  616,  620,  per  Bron-  Wisconsin:  State  ex  rel.  Attorney 
son,  J.;  *t  Gifford  v.  Livingston,  2  Gen'l  v.   Milwaukee   Lake  Shore   & 
Denio  (N.  Y.),  380,  395,  per    Hand,  Western  Ry.  Co.,  45  Wis.  579,  592, 
Senator;  Sandford  v.  New  York,  15  593,  per  Orton,  J. 
How.    Pr.    (N.    Y.)    172,    175,    per  •  Const.  N.  Y.,  art.  8,  §  3. 
Da  vies,  J.;  Bradley  Fertilizer  Co.  v.  See  also  the  following   state  con- 
South  Pub.  Co.,  23  N.  Y.  Supp.  675,  stitutions: 

678,  53  N.  Y.  St.  Rep.  214,  4  Misc.  Alabama:  Const.,  art.  12,  par.  241. 

172,  per  Bookstaver,  J.;  People  v.  California:  Const.,  art.  12,  §  4. 

North  River  Sugar  Refining  Co.,  3  Idaho:  Const.,  art.  11,  §  16. 

N.   Y.    Supp.    401,    407,    per    Bar-  Kansas:     Const.,     art.      12,     §6 

rett,  J.  (Dassler's  Gen'l  Stat.  §  215). 

Ohio:  State  v.  Standard  Oil  Co.,  Kentucky:  Const.,  §  208. 

49  Ohio  St.  137,  178,  34  Am.  St.  Rep.  Louisiana:  Const.,  art.  268. 

541,  15  L.  R.  A.  145,  30  N.  E.  279,  Michigan:  Const.,  art.  15,  §  11. 

per  Marshall,  J.  Minnesota:  Const.,  art.  10,  §  1. 

Pennsylvania:      Gibbs's    Estate,  Mississippi:  Const.,  §  199,  art.  7. 

Halstead's  Appeal,  157   Pa.  59,  69,  Missouri:  Const.,  art.  12,  §  11. 

33  Wkly.  N.  C.  120,  22  L.  R.  A.  276,  Montana:  Const.,  art.  15,  §  18. 

27  Atl.  383,  per  Williams,  J.;  Com-  North  Carolina:  Const.,  art.  8,  §  3. 

monwealth  v.  Fall  Brook  Coal  Co.,  North    Dakota:    Const.,    art.    7, 

156  Pa.  488,  494,  26  Atl.  1071,  per  §  144. 

Williams,  J.  Pennsylvania:     Const.,    art.    16, 

South   Carolina:   *  McCandless  v.  §13. 

Richmond    R.    Co.,    38   S.    C.    103,  South    Carolina:    Const.,  art.   9. 

110,  18  L.  R.  A.  440,  16  S.  E.  429,  §  1. 

per  Pope,  J.;  State  ex  rel.  Copes  v.  South    Dakota:    Const.,    art.    17, 

Charleston,    10   Rich.    Law    (S.   C),  §  19. 

491,  503.  Utah:  Const.,  art.  17. 

123 


§   52  DEFINITIONS,    CLASSIFICATION, 

Under  the  Public  Service  Commissions  Law  of  that  State  the 
term  "corporation,"  when  used  in  that  act,  includes  a  cor- 
poration, company,  association  and  joint-stock  association.7 
But  under  the  Joint-Stock  Association  Law  of  the  same  State 
the  term  "  joint-stock  association  "  does  not  include  a  corpora- 
tion.8 In  People  ex  rel.  Winchester  v.  Coleman9  it  is  held 
that  notwithstanding  the  various  legislative  enactments  ex- 
tending the  powers  of  joint-stock  companies,  and  clothing 
them  with  many  of  the  essential  attributes  possessed  by  and 
characteristic  of  corporations,  the  distinction  between  the 
two  classes  of  organizations  still  exists,  and  a  joint-stock  com- 
pany is  not  taxable  upon  its  capital  under  statutes  subjecting 
"all  money  or  stock  corporations  deriving  an  income  or 
profit  from  their  capital  or  otherwise,"  to  such  a  tax.  In 
People  ex  rel.  Piatt  v.  Wemple  10  it  is  held  that  the  words 
"incorporated  or  organized  under  any  law  of  this  State,"  as 
used  in  a  statute  providing  for  the  taxation  of  certain  corpora- 
tions, joint-stock  companies  and  associations,11  are  not  to  be 
taken  in  a  technical  or  restricted  sense  and  confined  to  asso- 
ciations brought  into  being  according  to  the  formality  of  a 
statute,  but  as  including  any  combination  of  individuals  upon 
terms  which  embody  or  adopt  as  rules  or  regulations  of  busi- 
ness the  enabling  provisions  of  the  statutes,  and,  so  far  as 
possible  for  it,  assume  an  independent  personality,  and  claim 

Virginia:    Const.,  art.    12,    §  153  written   articles  of   association   and 

(Pollard's  Code,  1904).  capital    stock    divided    into    shares, 

Washington:  Const.,  art.  12,  §  5.  but  does  not  include  a  corporation; 

Power  to  sue  under  New  York  con-  and   the   term  stockholder  includes 

stitution  includes  power  to  maintain  every   member   of   such    an    associ- 

only   actions    relating   to    corporate  ation."     Joint     Stock     Assn.     Law, 

rights.     Board     of      Education     v.  N.  Y.  Laws  1894,  ch.  235,  §  2. 

Board  of  Education,  78  N.  Y.  Supp.  9  133  N.  Y.  279,  31  N.  E.  96,  16  L. 

522,  76  App.  Div.  355.  R.  A.  183,  45  N.  Y.  St.  R.  217,  46 

7  Public    Service    Commissions    of  Alb.  L.  J.  50,  30  Am.  &  Eng.  Corp. 
N.  Y.,  Laws  1907,  p.  891,  ch.  429,  Cas.   1. 

art.  1,  §  2.  10 117  N.  Y.  136,  6  L.  R.  A.  303, 

8  "As  used  in  this  chapter  the  term   22  N.  E.  1046. 

joint-stock  association  includes  every  "  Ch.  542,  Laws  N.  Y.  1880,  as 
unincorporated  joint-stock  associ-  am'd  by  §  3,  ch.  361,  Laws  1881; 
ation,  company  or  enterprise  having   ch.  501,  Laws  1885. 

124 


NATURE   OF   CORPORATION  AND   DISTINCTIONS  §   52 

privileges  not  possessed  by  individuals  or  copartnerships,  and 
that  an  association  described  in  the  articles  as  a  "joint-stock 
company"  has  the  characteristics,  in  certain  respects,  of  a 
corporation  and  not  a  mere  partnership,  in  view  of  the  capaci- 
ties and  attributes  with  which  it  was  endowed,  and  in  view 
also  of  the  statutes  which  legalized  its  assumed  capacities  and 
made  valid  and  effective  its  asserted  right  of  succession,  its 
distinctive  name  and  the  inalienability  of  its  shares,  even 
though  the  articles  contained  no  reference  to  any  statute  of 
the  State  as  one  under  or  by  which  the  company  was  or- 
ganized.12 In  Fargo  v.  McVicker  13  it  is  held  that  in  case  of 
joint-stock  associations  the  question  of  citizenship,  in  respect 
to  the  removal  of  causes  to  the  Federal  courts,  should  be 
governed  by  the  same  principles  of  law  which  determine  the 
question  of  citizenship  in  the  case  of  corporations  authorized 
by  the  laws  of  a  State.  In  Waterbury  v.  Merchants'  Union 
Express  Co.14  the  nature  and  legal  character  of  joint-stock 
associations  organized  under  the  New  York  laws  is  considered, 
and  it  is  declared  that  they  have  all  the  attributes  of  a  corpo- 
ration except  the  technical  one  of  a  common  seal;  and  that  in 
respect  to  the  absence  of  a  common  seal  they  are  like  partner- 
ships. In  Supervisors  of  Niagara  v.  People  15  it  is  held  that 
associations  formed  under  the  general  banking  law  are  cor- 
porations within  the  purview  of  the  statute  16  and  liable  to 
taxation  on  their  capital.  In  a  case  in  the  Supreme  Court 
of  the  United  States  it  appeared  that  a  joint-stock  association 
was,  by  a  deed  of  settlement  in  England  and  certain  acts  of 
Parliament,  endowed  with  certain  faculties  and  powers,  which 
were:  a  distinct  artificial  name  by  which  it  could  make  con- 
tracts; a  statutory  authority  to  sue  and  be  sued  in  the  name 
of  its  officers  as  representing  the  association;  a  statutory 
recognition  of  the  association  as  an  entity  distinct  from  its 

12  Shareholders  of  joint-stock   com-  13  55  Barb.  (N.  Y.)  437. 

pany    considered    as    partners,    liable  14  50  Barb.  (N.  Y.)  157. 

for  debts,  etc.,  of  company  in  Hibbs  ,5  7  Hill  (N.  Y.),  504. 

v.  Brown,  98  N.  Y.  Supp.  353,  112  '•  1  Rev.  Stat.  414,  §  1. 
App.  Div.  214. 

125 


§    52  DEFINITIONS,    CLASSIFICATION, 

members  by  allowing  them  to  sue  and  be  sued  by  it;  and  a 
provision  for  its  perpetuity  by  transfers  of  its  shares,  so  as  to 
secure  succession  of  membership.  It  was  decided  that  such 
foreign  association  was,  in  view  of  these  like  powers,  a  corpo- 
ration in  this  country,  notwithstanding  the  acts  of  Parlia- 
ment in  accordance  with  a  local  policy  declared  that  it  should 
not  be  so  held.  It  was  also  determined  that  such  corpora- 
tions, whether  organized  under  the  laws  of  a  State  of  the 
Union  or  a  foreign  government,  could  be  taxed  by  another 
State  for  the  privilege  of  conducting  their  corporate  business 
within  the  latter;  and  that  in  this  country  the  individual 
responsibility  of  the  shareholder  for  the  association's  debts 
was  not  incompatible  with  the  corporate  idea.17 

17  Liverpool  Insurance  Co.  v.  Mas-  ation  only  possess  it  under  the  cir- 
sachusetts,  10  Wall.  (77  U.  S.)  566,  cumstances  mentioned"  in  the  cited 
574,  19  L.  ed.  1029,  aff'g  Oliver  v.  case).  Cited  in  Edgeworth  v.  Wood, 
Liverpool  &  London  Life  &  Fire  Ins.  58 N.  J.  L.  463,  467,  33  Atl.  942  (hold- 
Co.,  100  Mass.  531;  Bradley,  J.,  dis-  ing  that  a  joint-stock  company  or 
sented.  association  formed  under  New  York 

This  last  cited  case  has  been  cited,  laws  and  expressly  authorized  there- 
explained,  distinguished  and  criti-  under  to  sue  and  be  sued  is  a  cor- 
cised  as  appears  from  the  following  porate  entity  subject  to  action 
decisions:  against  it  in  New  Jersey  in  the  name 

Cited  in  Board  of  Levee  Inspectors  of  designated  officers  though  not  in 

of  Chicot  County  v.  Crittenden,  94  its  corporate  name.     And  the  court, 

Fed.  613,  616  (holding  that  a  board  per   Magie,    J.,    said,    "Whether   an 

of  levee  inspectors  possessed  of  the  aggregation  of  individuals  united  in 

powers  usually  incident  to  a  corpo-  an  artificial  body  is  a  corporation  or 

ration  is  a  corporation  even  though  not  is  to  be  determined  rather  by  the 

the  statute  creating  such  board  does  faculties  and  powers  conferred  upon 

not   expressly   declare   them   to    be  the  body  than  by  the  name  or  de- 

such).     See  also  Dean  v.  Davis,  51  scription  given  to  it.)     Cited  in  Tide 

Cal.   406,   411;  Elmore  v.   Commis-  Water  Pipe  Co.,  Lim.,  v.  State  Board 

sioners,  135  111.  269,  25  N.  W.  1010;  of  Assessors,  57  N.  J.  L.  516,  517,  27 

Archer  v.   Board  of  Levee   Inspec-  L.  R.  A.  684,  31  Atl.  221   (holding 

tors  of  Chicot  County,  128  Fed.  125,  that  joint-stock  companies  or  part- 

127.     Cited    in    American    Steel    &  nership     associations    organized    in 

Wire   Co.   v.   Wire   Drawers   &  Die  Pennsylvania    even   if  not  a  corpo- 

Makers'  Unions,  90  Fed.  598,  600,  ration  in  the  State  of  its  creation, 

per  Hammond,  J.  (to  point  that  "The  still  it  may  be  deemed  a  corporation 

right  to  sue  and  be  sued  is  a  corpo-  within  the  Corporation  Tax  Act  of 

rate  franchise,  must  be  granted  by  New  Jersey  where  such  company  is 

legislation,    and    voluntary    associ-  invested  with  the  essential  charac- 

126 


NATURE   OF  CORPORATION  AND   DISTINCTIONS 


§  53 


§  53.  Same  Subject  Continued. — In  a  case  in  the  Federal 
Circuit  Court  of  Appeals  it  is  held  that  an  allegation  in  respect 
of  the  plaintiff,  styled  a  "limited  partnership  association 
organized  and  existing  under  the  laws  of  the  State  of  Michi- 


teristics  of  a  corporation  and  assumes 
to    exercise    corporate    powers   and 
statutory    privileges    in    the    latter 
State.     Cited  in  McGregor  v.  Erie  Ry. 
Co.,  35  N.  J.  L.  115,  118  (but  only 
to   the    point  that  a  foreign  corpo- 
ration might  have  the  character  of  a 
corporation  in  New  Jersey  although 
it  is  not  so  expressly  declared).     Dis- 
tinguished in  Imperial  Refining  Co. 
v.  Wyman,  38  Fed.  574,  575,  579, 
3  L.  R.  A.  504  (holding  that  Pennsyl- 
vania  limited   partnerships  are  not 
"citizens"    under    the    Constitution 
and  laws  of  the  United  States  defin- 
ing the   limited   judicial   powers  of 
the  United  States.     Distinguished — 
as  to  point  that  "  if  incorporated  it 
seems  that  in  this  country  it  is  to  be 
regarded  as  at   least  a  quasi-corpo- 
ration, "    although  otherwise   where 
unincorporated, — in  Allen   v.   Long, 
80  Tex.  261,  266,  26  Am.  St.  Rep. 
735,  739,  16  S.  W.  45  (which  holds 
that    an    unincorporated  joint-stock 
company  or  association  lacking  the 
element  of  succession  or  perpetuity 
is  not  a  corporation  but  a  joint-stock 
association  governed  by  general  laws 
of     partnership).     Distinguished     in 
Andrew  Bros.  v.  Youngstown  Coke 
Co.,  86  Fed.  585,  587-589,  595,  30 
C.  C.  A.   293,   58   U.   S.  App.    444 
(upon  point  that  statute  in  this  case 
does  not  disclaim  a  purpose  to  create 
a  corporation.     This  last  case  holds 
that  a   "  limited  partnership  associ- 
ation "  is  a  corporation  and  "  citizen  " 
no  as  to  give  Federal  courts  jurisdic- 
tion).    But  the  court,  per  Harlan,  J., 
in  great  Southern  Fire  Proof  Hotel 
Co.  v.  Jones,  177  U.  S.  449,  457,  44 


L.  ed.  842,  20  Sup.  Ct.  690,  says  of 
this  case:  "For  the  reasons  stated  we 
are   unable   to   concur  in   the   view 
taken   by   that    court."      Explained 
and  distinguished  in  Gregg  v.  San- 
ford,  65  Fed.  151,  154,  12  C.  C.  A. 
525  (holding  that  a  joint-stock  com- 
pany or    association    formed  in  the 
State  of  New  York  was  not  subject 
to  taxation   under  the  Pennsylvania 
statutes  taxing  the  capital  stock  of 
"incorporated"   companies,  as   such 
joint-stock  association  was  not  a  cor- 
poration  but  a  partnership  relying 
as  to  taxation  upon  People  v.  Cole- 
man, 133  N.  Y.  279,  31  N.  E.  96,  16 
L.  R.  A.  183;  relying  as  to  partner- 
ship upon  Chapman  v.  Barney,  129 
U.  S.  677,  9  Sup.  Ct.  426;  Gleason  v. 
McKay,    134   Mass.   419;   Boston   & 
Albany  Rd.  v.   Pearson,   128  Mass. 
445;  Taft  v.  Ward,  106  Mass.  518; 
explaining    and    distinguishing    Oak 
Ridge    Coal    Co.     v.     Rogers,     108 
Pa.    147).     Criticised.     The    dissent- 
ing opinion  of  Bradley,   J.,   in  the 
principal    case,    upon    the    question 
whether  the  company  was  a  corpo- 
ration,   is    said    by   the    court,    per 
Lathrop,  J.,  in  Edwards  v.  Warren 
Linoline  &  Gasoline  Works,  168  Mass. 
564,  567,  568,  38  L.  R.  .A.  793,  47  N. 
E.  503  (to  be  "in  accord  with  the 
view  of  this  court  and  we  are  not 
aware  that  the  view  taken  by  the 
Supreme  Court  of  the  United  States 
has  been  followed  in  this  common- 
wealth.    The  decisions  we  have  al- 
ready cited  show  that  a  foreign  joint- 
stock  company  is  considered  as  an 
association  or  partnership  and  not  a 
corporation"). 

127 


§    53  DEFINITIONS,    CLASSIFICATION, 

gan,"  is  not,  in  the  absence  of  some  further  averment  as  to 
citizenship  of  its  members  a  "citizen"  within  the  Federal 
jurisdictional  rule,  unless  such  organization  is  a  corporation 
within  such  rule.  And  it  was  also  decided  that  the  association 
was  not  such  a  corporation  as  to  become  a  citizen  of  the  State 
of  its  domicile,  independent  of  the  members,  either  under  the 
state  constitution  or  under  a  statute  which  did  not  declare 
such  associations  to  be  corporations.18  It  is  decided,  how- 
ever, in  that  court  that,  for  the  purpose  of  jurisdiction  of  the 
Federal  court,  such  company  or  association  may  be  considered 
as  a  corporation  and  not  as  a  limited  partnership.19  It  is  also 
determined  in  an  early  case  in  the  United  States  Circuit  Court 
that  a  joint-stock  company  is  a  citizen  of  the  State  of  organiza- 
tion in  the  same  sense  that  corporations  are  citizens  and  that 
such  company  may  sue  and  be  sued,  in  the  name  of  its  proper 
officer,  in  the  Federal  courts  as  a  citizen  of  such  State.  Gre- 
sham,  J.,  said:  "Corporations  are  artificial  persons— ideal  crea- 
tures of  the  State— and  so  are  New  York  joint-stock  com- 
panies. It  is  of  no  consequence  that  in  the  statutes  under 
which  these  companies  are  organized  they  are  called  'unin- 
corporated associations.'  In  determining  what  such  institu- 
tions really  are,  regard  is  to  be  had  to  their  essential  attributes 
rather  than  to  any  mere  name  by  which  they  may  be  known. 
If  the  essential  franchises  of  a  corporation  are  conferred  upon 
a  joint-stock  company,  it  is  none  the  less  a  corporation  for 
being  called  something  else."  The  court  also  relies  upon  the 
New  York  constitution.20  In  a  comparatively  recent  case  in 
Idaho  it  is  decided  that  an  unincorporated  association  or 
joint-stock  company,  formed  for  the  purpose  of  acquiring 
certain  land,  is  a  partnership,  or  governed  by  some  of  the 
principles  of  partnership,  but  is  not  a  general  partnership,  and 
that  its  rights,  powers  and  privileges  are  not  those  of  a  corpo- 

18  Fred  Macey  Co.  v.  Macey,  135  20  Fargo  v.  Louisville,  New  Albany 
Fed.  725.  See  the  first  note  under  &  Chicago  Ry.  Co.,  10  Biss.  (U.  S.  C. 
§  52,  herein.  C.)  273,  277.     See  §  52,  herein,  for 

19  Bushnell  v.  Park  (U.  S.  C.  C),  provisions  of  New  York  constitution 
46  Fed.  209.  above  relied  on. 

128 


NATURE   OF   CORPORATION   AND   DISTINCTIONS  §   53 

ration  as  that  word  is  defined  under  the  constitution  of  that 
State.  In  its  discussion  of  the  questions  involved  the  court 
says:  "From  a  reading  of  said  section  16,  article  11  of  the  con- 
stitution of  Idaho,  it  will  be  observed  that  the  word  '  corpora- 
tion' does  not  include,  as  therein  defined,  all  joint-stock  com- 
panies and  associations,  but  only  such  as  '  have  or  exercise  any 
of  the  powers  or  privileges  of  corporations  not  possessed  by 
individuals  or  partnerships.'  The  provisions  of  that  section 
expressly  affirm  that  there  are  joint-stock  companies  or  asso- 
ciations that  do  not  have  or  exercise  any  such  powers  or  privi- 
leges, and  to  which  the  term  '  corporation '  as  used  in  section  16 
does  not  apply.  In  said  section  16  the  term  'corporation'  is 
there  defined  only  with  reference  to  its  use  in  said  section. 
The  definition  of  the  term  '  corporation '  as  given  in  said  section 
would  not  apply  to  the  Denver  Townsite  Company  unless  it 
possessed  or  exercised  some  of  the  powers  or  privileges  not 
possessed  by  an  individual  or  partnership.  The  constitutional 
definition  of  the  term  'corporation'  has  been  held  by  some 
courts  as  not  being  a  general  definition,  but  only  a  definition 
of  that  term  as  it  is  used  in  that  article  of  the  constitution. 
The  Supreme  Court  of  the  United  States  in  the  case  of  Great 
Southern  Fireproof  Hotel  Co.  v.  Jones,21  referring  to  the  defini- 
tion of  the  term  'corporation'  as  used  in  section  13,  article  16 
of  the  Pennsylvania  state  constitution,  said  'the  only  effect 
of  that  clause  is  to  place  the  joint-stock  companies  or  associa- 
tions referred  to  under  the  restrictions  imposed  by  that  article 
upon  corporations,  but  not  to  invest  them  with  all  the  at- 
tributes of  corporations.'  In  People  v.  Coleman,21"  it  was 
held  that  this  provision  in  the  constitution  of  New  York  only 
applied  to  the  term  'corporation'  as  used  in  the  article  re- 
ferred to  in  that  constitution,  requiring  that  there  should  be 
entered  after  the  word  'corporation'  at  every  place  in  that 
article  the  following:  'All  associations  and  joint-stock  com- 
panies having  or  exercising  any  of  the  powers  or  privileges  of 

21  177  U.  S.  449,  44  L.  ed.  842,  20   N.  Y.  279,  21  N.  E.  96,  16  L.  R.  A. 
Sup.  Ct.  693.  183. 

J,a  5  N.  Y.  Supp.  394,  aff'd  in  133 

9  129 


§   53  DEFINITIONS,    CLASSIFICATION, 

corporations  not  possessed  by  individuals  or  partnerships.'  "  22 
In  Kentucky  it  is  held  that  a  joint-stock  association,  created 
under  the  laws  of  the  State  of  New  York,  is  not  a  corporation 
under  a  statute  requiring  all  corporations  doing  business  in 
the  State,  except  foreign  insurance  companies,  to  have  an 
agent  in  the  State  to  accept  service,  and  also  requiring  a  speci- 
fied statement  to  be  filed  with  the  Secretary  of  State;  nor  is  it 
a  corporation  within  such  a  statute,  even  though  the  word 
"corporation"  in  the  constitution  embraces  joint-stock  com- 
panies, and  under  a  statute  the  words  "corporation"  or  "com- 
pany" include  joint-stock  companies  or  associations.23  In  a 
case  in  Massachusetts,  which  was  one  of  trustee  process,  the 
defendant  was  described  in  the  writ  as  a  "joint-stock  com- 
pany organized  under  the  laws  of  Pennsylvania"  and  its  de- 
cision rested  upon  the  question  whether  an  association  formed 
under  the  laws  of  that  State  was  a  corporation  or  a  partner- 
ship. It  was  determined  that  it  was  not  a  corporation  and 'so 
could  not  be  sued  as  such  in  Massachusetts,  although  the 
court,  per  Lathrop,  J.,  said  that  if  the  question  "were  an 
open  one  in  this  commonwealth,  it  might  well  be  held  that 
such  an  association  could  be  considered  to  have  so  many  of 
the  characteristics  of  a  corporation  that  it  might  be  treated 
as  one."  24  But  it  is  also  declared  in  the  same  State  that: 
"The  words  'joint-stock  company,'  as  used  in  the  statutes  of 
this  commonwealth,  refer  to  companies  organized  under  gen- 
eral laws  as  corporations.  *  *  *  The  phrases  'joint-stock 
company'  and  'corporations  organized  under  general  laws,'  as 
used  in  all  the  statutes  above  cited,  are  convertible  terms,  and 

22  Spotswood  v.  Morris,  12  Idaho,  Gasoline  Works,  168  Mass.  564,  566, 
360,  374,  375,  85  Pac.  1094,  per  38  L.  R.  A.  793,  47  N.  E.  503. 
Sullivan,  J.  See  §  52,  herein,  for  list  When  association  is  partnership 
of  constitutions.  That  joint-stock  and  its  rolling  stock  taxable  as  per- 
company  is  a  partnership,  see  Brad-  sonal  property,  see  Ricker  v.  Ameri- 
ford  v.  National  Ben.  Assn.,  26  App.  can  Loan  &  Trust  Co.,  140  Mass.  346, 
D.  C.  268.  5  N.  E.  284. 

23  Commonwealth  v.  Adams  Ex-  As  to  resemblance  and  difference 
press  Co.,  29  Ky.  L.  Rep.  1280,  97  between  corporations  and  partner- 
s' W.  386.  ships,  see  Pratt  v.  Bacon,  10  Pick. 

24  Edwards  v.  Warren  Linoline  &  (27  Mass.)  123,  125-127. 

130 


NATURE   OF   CORPORATION   AND   DISTINCTIONS  §   53 

refer  to  the  same  class  of  corporations,  as  distinguished  from 
those  established  under  special  charters.  *  *  *  The  words 
'joint-stock  company'  have  never  been  used  as  descriptive  of  a 
corporation  created  by  special  act  of  the  legislature,  and  au- 
thorized to  issue  certificates  of  stock  to  its  shareholders.  They 
describe  a  partnership  made  up  of  many  persons  acting  under 
articles  of  association,  for  the  purpose  of  carrying  on  a  particu- 
lar business,  and  having  a  capital  stock,  divided  into  shares 
transferable  at  the  pleasure  of  the  holder."  25  Under  a  Minne- 
sota decision  certain  constitutional  and  statutory  provisions 
are  construed  and  it  is  held  that  an  annuity,  safe-deposit  and 
trust  company  is  not  a  corporation  embracing  banking  privi- 
leges.26 In  a  Missouri  case  it  is  decided  that  an  express  com- 
pany, as  a  joint-stock  association,  cannot  maintain  an  action 
at  law  in  the  name  of  the  association,  nor  in  the  name  of  its 
officers  as  trustees.27  In  Ohio,  however,  express  companies 
have  been  treated  by  the  courts  as  corporations  though  or- 
ganized as  joint-stock  companies  but  not  designated  as  such 
in  the  statute  of  incorporation.28  In  Pennsylvania,  a  partner- 
ship association  limited  is  a  "person  or  corporation"  within 
the  meaning  of  those  words  in  a  statute  authorizing  an  action 
of  trespass  for  the  recovery  of  damages  for  trespassing  upon 
and  mining  coal  from  the  lands  of  another.  In  this  case  the 
court,  per  Mercur,  C.  J.,  said:  "Such  an  association  is  not 
technically  a  corporation.  Yet  it  has  many  of  the  character- 
istics of  one.  *  *  *  It  may  not  be  improper  to  call  such 
an  association  a  quasi-corporation.  If  not  a  corporation  it  is 
a  person.  It  is  cither  a  natural  or  an  artificial  person.  There 
is  no  intermediate  place  for  it  to  occupy,  no  other  name  for 
it  to  bear."  M 

25  Attorney  General  v.  Mercantile  5S3.  Examine  Wilkinson  v.  Evans, 
Ins.    Co.,    121    Mass.    524-526,    per   34  Pa.  Super.  Ct.  472. 

Endicott,  J.  28  State  v.  Adams  Express  Co.,  2 

26  International  Trust  Co.  v.  Ameri-  Ohio  N.  P.  98;  State  v.  United  States 
can  Loan  &  Trust  Co.,  G2  Minn.  501,  Express  Co.,  1  Ohio  N.  P.  259,  2  Ohio 
65  N.  W.  78.  Leg.  News,  257. 

27  Weir  v.  Metropolitan  St.  Ry.  :"  Oak  Ridge  Coal  Co.,  Lim.,  v. 
Co.,   126  Mo.   App.   471,    103   N.   W.  Rogers,  108  Pa.  147. 

131 


§    54  DEFINITIONS,    CLASSIFICATION, 

§  54.  Same  Subject — Conclusion.— -As  a  summary  of  what 
is  set  forth  under  the  two  last  preceding  sections,  it  appears 
that  it  is  conceded  in  a  number  of  decisions  and  in  the  opin- 
ions of  the  courts,  that  joint-stock  associations  or  companies 
have  many  of  the  characteristics,  attributes,  faculties,  and 
powers  of  corporations,  and  in  an  early  case  in  New  York,  it 
is  declared  that  such  companies  have  all  the  attributes  of  a 
corporation  except  a  common  seal.    So  in  Massachusetts,  the 
court's  statements  to  the  point  that   such  an  association  has 
so  many  of  the  characteristics  of  a  corporation  that  it  might 
well  be  treated  as  one,  and  also  that  the  phrases  "joint-stock 
company"  and  "corporations  organized  under  general    aws" 
are  convertible  terms,  are  important.    It  also  appears  that  a 
foreign  association,  having  like  powers,  etc.,  with  corporations 
is  a  corporation;  that  voluntary  associations  may  under  cer- 
tain circumstances  exercise  certain  corporate  franchises;  that 
the  question  is  not  one  as  to  the  name,  but  one  as  to  essentials, 
faculties  and  powers  possessed;  that  if  a  joint-stock  company 
possesses  the  essential  franchises  of  a  corporation  it  is  none 
the  less  a  corporation  by  being  called  something  else;  that  a 
distinction  exists  between  these  classes  of  organizations,  even 
though  joint-stock  companies  or  associations  possess  many 
of  the  essential  attributes  of  corporations  and  the  former  are 
not  corporations;  that  in  a  Federal  case  and  in  New  York  they 
are  not  corporations  taxable  as  such  upon  their  capital  stock; 
that  in  a  Federal  and  a  Massachusetts  case  they  are  so  sub- 
ject to  taxation;  also  so  in  a  New  Jersey  case  if  they  are  in- 
vested with  the  essentials  of  a  corporation;  and  also  so  in  a 
New  York  case  as  to  associations  formed  under  the  General 
Banking  Law;  that  under  certain  Federal  decisions  they  are 
within  the  Federal  jurisdictional  rule,  respectively  a  corpora- 
tion, a  citizen,  and  a  limited  partnership  association  is  not  a 
citizen  unless  it  is  a  corporation  within  such  rule;  that  under 
a  New  York  case  they  are  in  respect  to  citizenship  and  such 
jurisdiction,  governed  by  the  same  principles  as  govern  cor- 
porations in  determining  the  question  of  citizenship;  that  un- 
der another  Federal  case,  a  joint-stock  company  is  a  citizen 
132 


NATURE    OF    CORPORATION    AND    DISTINCTIONS  §   54 

in  the  same  sense  as  a  corporation,  and  may  sue  and  be  sued 
as  a  citizen  in  the  name  of  its  proper  officer;  that  in  Kentucky 
it  is  not  a  corporation  so  as  to  require  an  agent  in  the  State 
for  service  of  papers,  and  the  same  as  to  filing  a  certificate; 
that  under  a  Massachusetts  case  it  is  not  a  corporation  sub- 
ject to  suit;  that  under  a  Missouri  case  it  cannot  sue  as  a  cor- 
poration or  by  officers  as  trustees;  that  in  New  Jersey  it  is  a 
corporate  entity  subject  to  action  in  name  of  officers  but  not 
in  a  corporate  name;  that  in  the  Federal  and  Ohio  courts  it 
has  been  considered  a  corporation,  and  in  Pennsylvania  a 
"person  or  corporation"  and  not  a  corporation  in  Minnesota; 
that  in  a  number  of  jurisdictions  such  companies  or  associa- 
tions are  considered  as  an  association  or  partners,  or  as  part- 
ners, also  so  under  a  Texas  decision  if  they  lack  the  element 
of  succession  or  perpetuity,  also  so  in  respect  to  the  absence 
of  a  common  seal,  although  it  is  declared  in  a  New  York  case 
that  such  companies  have  not  the  characteristics  of  a  mere 
partnership,  and  in  a  Federal  case  that  they  are  not  partner- 
ships but  corporations  for  the  purposes  of  jurisdiction,  and 
under  a  Pennsylvania  decision  it  is  said  that  it  may  not  be 
improper  to  call  them  quasi-corporations.  While,  therefore, 
such  joint-stock  companies  or  associations  have,  under  certain 
circumstances  and  for  certain  purposes,  been  considered  as 
corporations,  and  although  it  is  generally  conceded  that  they 
possess  the  attributes,  characteristics,  faculties,  and  powers  of 
corporations  in  a  marked  degree,  nevertheless  they  are  not 
technically  corporations  and  the  courts  have  more  generally 
relied  upon  the  technical  distinctions  that  exist,  and  have 
held  that  they  are  not  corporations  and,  as  above  stated,  they 
have  been  held  in  a  number  of  decisions  to  be  partners.  In  so 
far,  however,  as  the  constitutional  provisions,  noted  under  a 
preceding  section,30  affect  or  control  the  determination  of  the 
question  under  consideration,  it  would  seem  that  such  pro- 
visions are  limited  in  their  operation  to  those  cases  which 
satisfy  or  come  within  the  express  conditions  therein. 

30  See  §  52,  herein. 

133 


§   55  DEFINITIONS,    CLASSIFICATION, 

§  55.  General  Classification  of  Corporations — Public  and 
Private. — In  classifying  corporations  regard  must  be  had  to 
their  mode  of  creation,  to  the  objects  and  purposes  for  which 
they  are  created,  to  the  degree  of  power  conferred  upon  them, 
to  their  legal  status,  and  to  the  relation  sustained  by  them  to 
the  government  and  the  public.  While  corporations  are 
divided  generally  into  public  and  private,31  other  divisions 
have  been  made.  Thus  it  is  declared  that:  "The  division  of 
corporations  into  public  and  private  will  be  more  simple  and 
easily  understood  as  political  and  private."  32  So,  as  to  all 
their  rights,  powers  and  responsibilities,  three  classes  of  cor- 
porations are  said  to  exist:  (1)  Political  or  municipal  corpora- 
tions, such  as  counties,  towns,  cities  and  villages,  which  from 
their  nature  are  subject  to  the  unlimited  control  of  the  legis- 
lature; (2)  those  associations  which  are  created  for  pubiic 
benefit,  and  to  which  the  government  delegates  a  portion  of  its 
sovereign  power,  to  be  exercised  for  public  utility,  such  as 
turnpike,  bridge,  canal  and  railroad  companies;  and  (3)  strictly 
private  corporations  where  the  private  interest  of  the  cor- 
porator is  the  primary  object  or  purpose  of  the  association, 
such  as  banking,  insurance,  manufacturing  and  trading  com- 
panies; and  in  this  class  may  be  included  eleemosynary  cor- 
porations, generally.33    Although  a  municipality  or  city  is  a 

31  Dartmouth  College  v.  Wood-  created  either  by  the  government  of 
ward,  4  Wheat.  (17  U.  S.)  518,  4  L.  the  province  or  of  the  Republic,  most 
ed.  629;  Murphy  v.  Board  of  Chosen  of  which  still  subsist,  may  be  con- 
Freeholders,  57  N.  J.  L.  245,  251,  31  sidered,  in  reference  to  their  objects, 
Atl.  229.  as  belonging  to  one  or  other  of  three 

As  to  distinction  between  public  distinct  classes.     The  first  kind  are 

and  private  corporations,  see  §§  60-  such  as  relate  merely  to  the  public 

62,  herein.  police;    which    by    assuming    upon 

32  State  v.  Hayward,  3  Rich.  Law  themselves  some  of  the  duties  of  the 
(S.  C),  389,  408,  per  O'Neall,  J.  State,  in  a  partial  or  detailed  form, 
See  §  60,  herein.  and  having  neither  power  nor  prop- 

33  Swan  v.  Williams,  2  Mich.  (1  erty  for  the  purposes  of  personal  ag- 
Gibbs)  427,  434,  per  Mattin,  J.  grandizement  can  be  considered  in  no 

In  McKim  v.  Odom,  3  Bland  (Md.),  other  light  than  as  the  auxiliaries  of 
407,  417-419,  decided  in  1829,  the  government  of  the  Republic;  and 
Bland,  Chancellor,  says:  "The  multi-  consequently,  as  the  secondary  and 
tude  of  bodies  politic,  that  have  been   deputy  trustees  and  servants  of  the 

134 


NATURE   OF   CORPORATION    AND   DISTINCTIONS 


§  55 


public  corporation,34  still  municipal  corporations  may  possess 
certain  characteristics  or  powers  in  the  nature  of  a  private 


people.  The  right  to  establish,  alter 
or  abolish  such  corporations,  seems 
to  be  a  principle  evidently  inherent 
in  the  very  nature  of  the  institutions 
themselves;  since  all  mere  munici- 
pal regulations  must  from  the  nature 
of  things  be  subject  to  the  absolute 
control  of  the  government.  These 
institutions  being,  in  their  nature, 
the  auxiliaries  of  the  government 
in  the  great  business  of  municipal 
rule,  cannot  have  the  least  preten- 
sion, to  sustain  their  privileges,  or 
their  existence  upon  anything  like 
a  contract  between  them  and  the 
government;  because  there  can  be 
re  reciprocity  of  stipulation;  and 
because  their  objects  and  duties  are 
incompatible  w.th  everything  of  the 
nature  of  such  a.  compact.  The 
power  of  acquiring  and  holding  prop- 
erty, although  almost  always  given, 
is  by  no  mears  a  necessary  incident 
to  corporations  of  this  class;  they 
may  be  established  without  any  such 
capacty;  as  in  the  instance  of  the 
commissioners  for  emitting  bills  of 
credit  The  preservation  of  morals, 
and  the  administration  of  justice 
are  the  chief  ends  for  which  govern- 
ment has  been  instituted;  and  in- 
fancy, insanity,  infirmity,  and  help- 
less poverty  have  an  undoubted 
claim  upon  the  protecting  care  of  the 
Republic.  Bodies  politic  of  this 
class  having  these  objects  in  view, 
are  city  corporations;  levy  courts; 
county  schools  of  the  provincial  or 
state    government;    public    colleges; 


hospitals;  trustees  of  the  poor  of  the 
several  counties,  etc.  The  second 
class  of  corporations  are  such  as  have 
no  concern  whatever  with  the  duties 
of  the  Republic;  nor  are  in  any 
manner  bound  to  perform  any  acts 
for  its  benefit;  but  whose  only  object 
is  the  personal  emolument  of  its 
members.  The  corporators  in  such 
institutions  may  also,  in  some  sense, 
be  considered  as  trustees;  but  then, 
when  in  that  character,  they  are  the 
mere  factors  of  individuals;  and, 
therefore,  their  resignation  or  re- 
moval cannot  divest  or  alter  any  of 
the  rights  of  the  individuals  they 
represented.  Each  member  of  such 
an  aggregation  either  was  a  pro- 
prietor at  the  commencement,  or  be- 
came so  during  the  existence  of  its 
incorporation;  and  consequently,  un- 
less he  has  aliened  his  right,  must 
continue  to  be  so  after  its  dissolu- 
tion. A  corporation  not  being,  like 
a  natural  person,  one  of  the  elements 
of  society,  of  which  government  is 
formed,  can  only  be  considered  as  a 
creature  of  the  law.  It  is  the  law 
alone  which  gives  to  it  a  personality 
distinct  from  that  of  each  of  its  mem- 
bers, and  confers  on  it  the  right  to 
act  by  its  president,  directors,  or 
agents,  in  a  manner  analogous  to  that 
in  which  the  government  itself  acts 
by  its  regularly  constituted  func- 
tionaries. This  individuality  of  char- 
acter, and  the  right  so  to  act  is,  then, 
nothing  more  than  a  portion  of 
the  power  of  the  government  with 


34  Philadelphia  v.  Fox,  64  Pa.  180, 
181;  Ogden  City  v.  Bear  Lake  & 
River  Water  Works  &  Irrig.  Co.,  16 
Utah,  440,  451,  452,  52  Pac.  697,  41 
L.  R.  A.  305,  per  Zane,  C.  J.  (city  de- 


clared to  be  a  public  corporation  and 
the  nature  of  such  corporation  and 
the  extent  of  its  powers  considered). 
See  §§  60-62,  herein. 

135 


§  55 


DEFINITIONS,    CLASSIFICATIONS, 


corporation.35  A  right  may  be  private  in  respect  that  it  be- 
longs to  the  municipality  for  the  exclusive  benefit  of  its  own 
corporators,  and  yet  public  in  respect  that  there  can  be  no 
property  in  it  by  individual  citizens,  and  the  right  itself  exists 
only  by  public  and  sovereign  grant  and  as  a  franchise.36 


which  it  has  been  invested.  It  is 
this  power  which  is  given  by  the 
creation  of  a  body  politic,  and  which, 
by  its  extinguishment,  is  resumed, 
and  nothing  more;  the  rights  of  prop- 
erty vested  in  its  several  members,  in 
all  other  respects,  remain  unaffected 
by  its  dissolution.  It  is  remarkable, 
that  there  is  no  instance  of  the  cre- 
ation of  any  body  politic  of  this  de- 
scription under  the  provincial  gov- 
ernment; but  since  the  establishment 
of  the  Republic  they  have  increased 
and  multiplied  to  a  very  large  and 
still  rapidly  growing  family.  The 
examples  of  this  class  of  corporations 
are  the  insurance  companies;  the 
Free  Mason  societies;  the  banks;  the 
manufacturing  companies;  the  li- 
brary companies,  etc.  The  third 
species  of  corporations  partake,  in 
many  respects,  of  the  nature  of  the 
two  first  classes ;  and  are  such  as  have 
a  concern  with  some  of  the  extensive 
duties  of  the  State,  the  trouble  and 
charge  of  which  are  undertaken  and 
defrayed  by  them,  in  consideration 
of  a  certain  emolument  allowed  and 


secured  to  their  members.  In  cases 
of  this  kind  there  is  certainly  many 
of  the  material  features  of  a  contract 
between  the  government  and  the  cor- 
poration; there  is  manifestly  a  quid 
pro  quo.  But  this  contract,  if  it  be 
so,  is,  and  of  necessity  must  be,  like 
all  others  to  which  a  government  or 
State  is  a  party,  one  of  imperfect 
obligation  as  regards  the  State;  and, 
as  such,  subject  to  be  dealt  with  by 
the  government  of  the  State  as  the 
public  good  may  require,  on  making 
a  just  compensation  for  any  private 
property  which  may  be  taken  for  a 
public  use.  No  bodies  politic  of  this 
description  were  ever  created  under 
the  provincial  government;  but  since 
our  independence,  a  great  number 
of  them  have  been  called  into  ex- 
istence; such  as  canal  companies; 
bridge  companies;  turnpike  road 
companies,  etc."  See  Tinsman  v. 
Belvidere  Delaware  Rd.  Co.,  26  N. 
J.  L.  148,  171,  69  Am.  Dec.  195  (de- 
fining public  corporations  as  created 
for  political  purposes,  etc.). 


35  Mount  Pleasant  v.  Beckwith, 
100  U.  S.  514,  529,  25  L.  ed.  699,  per 
Clifford,  J. 

36  Mayor  v.  Park  Commissioners, 
44  Mich.  602,  605,  7  N.  W.  180,  per 
Cooley,  J.,  who  adds:  "Indeed  in  re- 
spect to  its  waterworks,  sewers  and 
public  parks,  a  city  would  be  with- 
out power  to  make  them  accomplish 
the    purposes    for    which    they    are 

136 


created,  held  and  used,  but  for  spe- 
cial franchises  conferred  upon  them 
by  the  State  for  the  purpose.  The 
power  to  condemn  lands,  for  exam- 
ple, is  generally  essential,  but  this  is 
only  given  upon  the  ground  that  the 
end  aimed  at  is  public,  though  it  is 
public  only  as  concerns  the  particular 
city,  borough,  village,  etc.,  to  be 
benefited." 


NATURE   OF   CORPORATION   AND   DISTINCTIONS 


56 


§  56.  General  Classification  of  Corporations  Continued — 
Quasi-Public  Corporations — Quasi-Municipal  Corporations. 

— Another  division  is  what  has  been  termed  quasi-public 
corporations,  which  is  a  term  generally  used  to  designate  a 
subdivision  of  public  corporations,  as  in  the  case  of  certain 
political  divisions  or  subordinate  agencies,  such  as  counties, 
towns  or  townships,  school  districts,  etc.37    These  latter  are, 


"United  States:  School  District 
v.  Insurance  Co.,  103  U.  S.  707,  708, 
26  L.  ed.,  per  Miller,  J.  (school  dis- 
trict); Madden  v.  Lancaster  County, 
65  Fed.  188,  191,  27  U.  S.  App. 
528  (counties).  Compare  Lincoln, 
County  of,  v.  Luning,  133  U.  S.  529, 
33  L.  ed.  766,  10  Sup.  Ct,  363;  Tippe- 
canoe County,  Board  of  Commrs.  of, 
v.  Lucas,  93  U.  S.  108,  23  L.  ed.  882. 

Alabama:  Chambers  County  v. 
Lee  County,  55  Ala.  534  (counties 
are  public  or  quasi-corporations). 

Arkansas:  Compare  Eagle  v. 
Beard,  33  Ark.  497,  501  (counties 
are  of  a  purely  political  character). 

California:  See  County  of  San 
Bernadino  v.  Southern  Pac.  Rd.  Co., 
137  Cal.  659,  662,  70  Pac.  782,  Cal. 
Polit.  Code,  §  1575  (school  district  is 
public  corporation  which  may  sue 
and  be  sued  in  own  name). 

Illinois:  Bush  v.  Shipman,  4  Scam. 
(5  111.)  186  (incorporated  township 
for  common  school  purposes).  Ex- 
amine Board  of  Education  v.  Greene- 
baum  &  Sons,  39  111.  609,  618;  Trus- 
tees of  Schools  v.  Tatman,  13  111.  27, 
30  (school  trustees). 

Indiana:  See  School  Town  of 
Montecello  v.  Kendall,  72  Ind.  91, 
37  Am.  Rep.  139  (school,  town  or 
township  is  purely  public  corpo- 
ration). 

Iowa:  Soper  v.  Henry  County,  26 
Iowa,  264.  Compare  Curry  v.  Dis- 
trict Township  of  Sioux  City,  62 
Iowa,  102,  104,  105,  17  N.  W.  191, 


per  Rothrock,  J.  (school  district  is 
municipal  corporation;  may  issue 
bonds;  municipal  corporation  de- 
fined); Winspear  v.  District  Town- 
ship of  Holman,  37  Iowa,  542-544, 
per  Day,  J.  (school  district  held  a 
political  or  municipal  corporation  as 
to  incurring  indebtedness). 

Kentucky:  Lawrence  County  v. 
Chatteroi  Rd.  Co.,  81  Ky.  225. 

Massachusetts:  Inhabitants  of 
Fourth  School  Dist.  in  Rumford  v. 
Wood,  13  Mass.  193  (towns;  inhabi- 
tants of  school  districts);  Riddle  v. 
Proprietors  of  Locks  &  Canals,  7 
Mass.  169,  186,  187,  5  Am.  Dec.  35. 

Minnesota:  See  Dowlan  v.  Sibley, 
County  of,  36  Minn.  430,  432,  31  N. 
W.  517  (term  "municipal  corpora- 
tions" includes  such  quasi-corpora- 
tions as  counties  and  towns). 

Mississippi:  Brabham  v.  Hinds 
County,  Board  of  Supervisors  of,  54 
Miss.  363,  364,  28  Am.  Rep.  352. 

Missouri:  Clark  v.  Adair  County, 
79  Mo.  536,  537;  Ray  County  v. 
Bentley,  49  Mo.  236. 

Nebraska:  See  Woods  v.  Colfax 
County,  10  Neb.  552,  554,  555,  7  N. 
W.  269. 

New  Hampshire:  Wells  v.  Bur- 
bank,  17  N.  II.  393  (township). 

North  Carolina:  White  v.  Chowan, 
Commrs.  of,  90  N.  C.  437,  438,  47 
Am.  Rep.  534. 

Ohio:  Carder  v.  Fayette  County, 
Board  of  Commrs.  of,  16  Ohio  St. 
353,   367;   Hopple  v.   Brown  Town- 

137 


56 


DEFINITIONS,    CLASSIFICATIONS, 


however,  sometimes  called  quasi-municipal  corporations,  as 
distinct  from  municipal  corporations  proper,  such  as  cities 
and  incorporated  villages,  and  this  distinction  has  been  deemed 
important  in  a  case  in  Minnesota  which  holds  that  no  private 
action  lies  for  the  negligence  of  public  governmental  officers.38 

ship,  13  Ohio  St.  311,  324  (town- 
ships are  often  denominated  quasi- 
corporations). 

Pennsylvania:  See  Chester, 
County  of,  v.  Brower,  117  Pa.  647, 
655,  12  Atl.  577,  2  Am.  St.  Rep.  713 
(not  strictly  municipal  corporation;  is 
public  as  distinguished  from  private; 
sometimes  called  a  quasi-municipal 
corporation);  Turnpike  Co.  v.  Wal- 
lace, 8  Watts  (Pa.),  316,  317,  per 
Rogers,  J.  (the  words  "other  corpo- 
rate bodies,"  in  a  statute  as  to  cor- 
porations exempted  from  execution, 
etc.,  means  boroughs,  cities,  etc.). 

Texas:  Heigel  v.  Wichita  County, 
84  Tex.  392,  31  Am.  St.  Rep.  63,  19 
S.  W.  562. 

Washington:  State  ex  rel.  Sum- 
merfield  v.  Tyler,  14  Wash.  495,  499, 
45  Pac.  31. 

Wisconsin:  Norton  v.  Peck,  3 
Wis.  714  (township).  See  Burhap 
v.  City  of  Milwaukee,  21  Wis.  257, 
260,  per  Downer,  J.  (counties,  cities, 
villages,  towns,  etc.,  are  public;  pri- 
vate corporations  distinguished). 

See  §  61,  herein. 

Counties,  towns,  school  districts, 
etc.,  as  involuntary  quasi-corpora- 
tions, see  Dillon's  Munic.  Corp. 
(4th.  ed.)  §§  22-25. 

38  Snider  v.  City  of  St.  Paul,  51 
Minn.  466,  471,  472,  18  L.  R.  A.  151, 
53  N.  W.  763.  In  this  case  the 
court,  per  Mitchell,  J.,  said:  "But 
respecting  the  principle  upon  which 
to  rest  this  distinction,  as  to  the  na- 
ture of  the  duties  to  which  it  extends, 
the  courts  seem  to  be  much  per- 
plexed, and  their  decisions,  often  in 

138 


conflict  with  each  other,  leave  the 
subject  in  some  confusion.  The 
ground  for  the  distinction  is  not  to 
be  found  in  the  mere  fact  that  one  is 
created  by  special  charter,  while  the 
other  is  not,  for  both  alike  are 
subdivisions  of  the  State,  created 
for  public,  although  local,  govern- 
mental purposes.  Nor  is  it  to  be 
found  in  the  fact  that  one  is  given 
greater  powers  than  the  other,  un- 
less the  power  is,  not  for  govern- 
mental purposes,  but  to  engage  in 
some  enterprise  of  a  ^uasi-private 
nature,  from  which  the  municipality 
will  derive  a  pecuniary  benefit  in  its 
corporate  or  proprietary  capacity; 
as,  for  example,  power  to  build  gas- 
works or  waterworks,  to  furnish  gas 
or  water  to  be  sold  to  consumers,  or 
to  build  a  toll  bridge,  from  each  of 
which  the  city  would  derive  a  revenue. 
In  this  class  of  cases  it  is  generally 
held  that  corporations  are  liable  for 
wrongful  or  negligent  acts,  because 
done  in  what  is  termed  their  'pri- 
vate' or  'corporate'  character,  and 
not  in  their  public  capacity  as  gov- 
erning agencies,  in  the  discharge  of 
duties  imposed  for  the  public  or  gen- 
eral benefit.  But  it  is  also  gener- 
ally held  that  they  are  not  liable  for 
negligence  in  the  performance  of  a 
public,  governmental  duty  imposed 
upon  them  for  public  benefit,  and 
from  which  the  municipality  in  its 
corporate  or  proprietary  capacity 
derives  no  pecuniary  benefit.  The 
liabilities  of  cities  for  negligence  in 
not  keeping  streets  in  repair  would 
seem  to  be  an  exception  to  this  gen- 


NATURE   OF   CORPORATION   AND   DISTINCTIONS  §   57 

The  term  "  quasi-public  corporation  "  has,  however,  also  been 
used  to  denominate  a  certain  class  of  private  corporations  of  a 
quasi-public  character  in  that  they  have  conferred  upon  them 
certain  governmental  powers  to  enable  them  to  carry  out  some 
enterprise  of  a  public  nature  involving  public  interests,  al- 
though the  public  may  have  no  other  concern  therein  than 
that  it  is  or  may  be  indirectly  benefited.39  The  term  has, 
however,  been  declared  to  be  a  misnomer  where  applied  to 
private  corporations  such  as  a  railroad.40 

§  57.  Other  Divisions  or  Kinds  of  Corporations. — Corpo- 
rations have  been  also  divided  into  aggregate  and  sole,  ecclesi- 
astical and  lay,  eleemosynary  and  civil.41  Corporations  are 
also  domestic  or  foreign.42 

eral  rule  *  *  *  and,  as  already  New  York:  Winters  v.  City  of  Du- 
suggested,  as  to  what  are  public  gov-  luth,  82  Minn.  127,  135,  84  N.  W. 
ernmental  duties  and  what  are  pri-  788;  O'Donnell  v.  City  of  Syracuse, 
vate  corporate  duties  the  courts  are  184  N.  Y.  1,  76  N.  E.  738,  112  Am. 
not  in  entire  harmony,  and  their  de-  St.  Rep.  558  (not  liable  in  exercise  of 
cisions  do  not  furnish  a  definite  line  discretionary  powers  of  public  or 
of  cleavage  between  the  two."  legislative   character,   but  otherwise 

See  also  upon  the  points  in  above    for    nonperformance    of      corporate 
quotation   as   to    liability   for   negli-    duties  not  discretionary  relating  to 
gence  and  distinctions,  the  following    its  special  interests), 
cases:  North    Carolina:    Fisher  v.   New 

United  States:  Madden  v.  Lancas-  Bern,  140  N.  C.  506,  53  S.  E.  342, 
ter  County,  65  Fed.  188,  27  U.  S.  App.  Ill  Am.  St.  Rep.  857  (not  liable  for 
528.  breach  of  duty  while  acting  as  agency 

Illinois:  Tollefson  v.  Ottawa,  228   of  State,  but  liable  for  negligence  in 
111.  134,  81  N.  E.  823,  11    L.  R.  A.    operating  electric  light  plant). 
(N.  S).  990  (not  liable  for  negligence        See   also   note   30   Am.    St.    Rep. 
of  servants  in  conducting  hospital).    376;  Dillon's  Munic.  Corp.  (4th.  ed.) 

Indiana:  Aiken  v.  Columbus,  167  §§  954,  980-984,  987;  Thompson's 
Ind.  139,  78  N.  E.  657,  12  L.  R.  A.  Comm.  on  Law  of  Neg.  §§  5785  et  seq. 
(N.  S.)  416  (liable;  case  of  maintain-  39  See  Miners  Ditch  Co.  v.  Zellen- 
ing  electric  light  plant  for  lighting  bach,  37  Cal.  543,  577,  per  Sawyer, 
streets).  C.  J.     See  Chap.  VI. 

Michigan:     Alberts     v.    City    of        "Pierce    v.    Commonwealth,    104 
Muskegan,  146  Mich.  210,  109  N.  W.    Pa.   150,  155,   13  Am.  &  Eng.  Rd. 
262,   117  Am.   St.   Rep.   633    (when    Cas.  74,  79.     Compare  Chap.  VI. 
not  liable  for  negligence  of  officers  in        u  See   Penobscot   Boom   Corp.   v. 
using  steam-roller  on  streets).  Lamson,  4  Shep.  (16  Me.  224)33  Am. 

"See  Chap.  VI,  herein,  as  to  other  particular  kinds  of  corporations. 

139 


§   58  DEFINITIONS,    CLASSIFICATION, 

§  58.  Classification    as    Affected    by    Constitutions    and 

Statutes.— Another  consideration  of  importance  in  this  con- 
nection is  that  of  the  various  constitutions  and  statutes, 
especially  those  which  define  and  classify  corporations  either 
expressly  or  impliedly.43  Although  corporations  are  divided 
generally  into  those  created  by  the  State  for  purposes  of  gov- 
ernment and  management  of  public  affairs,  which  are  public 
or  quasi-public  corporations,  and  those  formed  by  voluntary 
agreement  for  private  advantage,  which  are  technically  private 
corporations;44  still,  in  statutes  relating  to  the  creation  of 
corporations  and  to  the  grant  of  the  ordinary  franchises  to 
them,  the  term  "corporation"  may  properly  be  limited  by 
construction  to  private  corporations,  and  in  any  remedial 
statute  the  term  "corporations"  includes  all  classes  of  cor- 

Dec.  656;  Day  v.  Stetson,  8  Greenl.  and  bounty  of  the  founder  in  such 
(8  Me.)  365;  Jansen  v.  Ostrander,  1  manner  as  he  has  directed,  and  in 
Cow.  (N.  Y.)  670;  Thomas  v.  Dakin,  this  case  are  ranked  hospitals  for  the 
22  Wend.  (N.  Y.)  9;  Angell  &  Ames  relief  of  the  poor  and  impotent  per- 
on  Corp.  (9th  ed.)  §§26-30,  36-40;  sons  and  colleges  for  the  promotion  of 
Anderson's  Diet,  of  Law,  title  "Cor-  learning  and  piety  and  the  support 
poration."  of  persons  engaged  in  literary  pur- 
Eleemosynary  corporations  are  suits.  Dartmouth  College  v.  Wood- 
such  as  are  constituted  for  the  per-  ward,  4  Wheat.  (17  U.  S.)  518,  668, 
petual  distribution  of  the  free  alms  672-676,  4  L.  ed.  629. 

43  See  §§  52-54,  herein.  The  New  tery  corporation,  (2)  a  library 
York  General  Corporation  Law  corporation,  (3)  a  co-operative  cor- 
(Laws  1890,  ch.  563,  §  2,  1  Cum-  poration,  (4)  a  board  of  trade  cor- 
ming  &  Gilbert's  Gen'l  Laws  &  Gen'l  poration,  or  (5)  an  agricultural  and 
Stat.  N.  Y.,  812,  813)  provides:  horticultural  corporation.  A  trans- 
"  Classification  of  Corporations. — A  portation  corporation  shall  be  either, 
corporation  shall  be  either,  (1)  a  (1)  a  railroad  corporation,  or  (2) 
municipal  corporation;  (2)  a  stock  A  transportation  corporation  other 
corporation;  (3)  a  non-stock  cor-  than  a  railroad  corporation.  A  mem- 
poration,  or  (4)  a  mixed  corporation,  bership  corporation  shall  include  be- 
A  stock,  corporation  shall  be  either,  nevolent  orders  and  fire  and  sol- 
(1)  a  moneyed  corporation;  (2)  a  diers'  monument  corporations.  A 
transportation  corporation,  or  (3)  a  reference  in  a  general  law  to  a  class 
business  corporation.  A  non-stock  of  corporations  described  in  accord- 
corporation  shall  be  either,  (1)  a  ance  with  this  classification  shall  in- 
religious  corporation,  or  (2)  a  mem-  elude  all  corporations  theretofore 
bership  corporation.  A  mixed  cor-  formed  belonging  to  such  class." 
poration  shall  be  either,  (1)  a  ceme-        44  See  §§  55,  56,  61,  62,  herein. 

140 


NATURE   OF   CORPORATION   AND   DISTINCTIONS  §   59 

porations,  and  it  may,  upon  applying  the  legal  rules  of  con- 
struction, be  reasonably  concluded  that  the  term  should  be  ex- 
tended to  every  character  of  corporations  which  can  be  created 
by  legislative  power,  especially  those  which  may  have  imposed 
upon  them  duties  for  the  breach  of  which  a  liability  in  law 
arises.45 

§  59.  Classification  as  Affected  by  Public-Service  Commis- 
sions Law,  or  Public  Utilities  Act.46 — Still  another  division 
of  corporations,  and  one  which  is  of  constantly  increasing 
importance,  is  that  of  public  service  or  public  utility  cor- 
porations or  companies.  What  are  embraced  within  this  de- 
nomination is  evidenced,  in  some  degree  at  least,  by  recent 
enactments  of  the  Public  Service  Commissions  Law  in  New 
York  and  the  Public  Utilities  Act  in  Wisconsin.  Under  the 
former,  the  law  applies  to  the  public  services  described  therein, 
and  embraces  common  carriers,  all  railroad  and  street  railroad 
corporations,  by  whatsoever  power  operated,  above  or  below 
any  street,  etc.,  subways,  tunnels,  express  companies,  car, 
sleeping-car,  freight  and  freight-line  companies,  gas  and  electric 
light,  heat  and  power  companies,  doing  business  in  the  State.47 

45  Murphy    v.    Board    of    Chosen  and  that  by  reason  of  such  neglect 

Freeholders,  57  N.  J.  L.  245,  251,  31  such  boards  become  liable  in  dam- 

Atl.    229,    per    Lippincott,    J.     The  ages   whenever  the   death   shall   be 

term  "corporation"  as  contained  in  caused  by  such  neglect.     The  act  of 

the  first  section  of  the  act  entitled,  1848,   to   which   reference   is   made, 

"  An  act  to  provide  for  the  recovery  called  the  Death  Act,  was  intended 

of  damages  in  cases  where  the  death  to  give  a  right  of  action  thereunder, 

of  a  person  is  caused  by  wrongful  against  persons  or  corporations  upon 

act,  neglect    or    default,"  approved  whom    a    liability   was    imposed,    if 

March    3,    1848   (Rev.    p.   294),  in-  death  had  not  ensued,  and  in  the  ab- 

cludes  within  its  meaning  the  boards  sence  of  any  language   in  the  act, 

of  chosen  freeholders  of  the  respec-  which  either  expressly  or  impliedly 

tive  counties  of  this  State,  aa  public  excludes    public    corporations,    it   ia 

corporations,  having  by  the  act  of  upon  principle  clear  that  they  are  in- 

1860  (Rev.  p.  86,  §  1)  imposed  upon  eluded  within  the  provisions  of  the 

them  a  liability  for  damages  for  per-  statute,  which  being  remedial,  must, 

sonal    injuries    occasioned    by   their  in  its  nature,  be  liberally  and  bene- 

neglect   to   erect,    rebuild   or  repair  ficially  interpreted, 
bridges  in  such  manner  as  not  to  be        "See  §  104,  herein, 
dangerous  to  public  travel  over  them,        ,7  Public      Service      Commissions 

141 


§  59 


DEFINITIONS,    CLASSIFICATION, 


Under  the  latter  statute  48  in  1907  were  included  telegraph 
companies,  urban  street  railway  companies,  and  all  public 
utility  companies,  and  under  the  act  of  1905  49  creating  the 
commission,  all  common  carriers,  including  steam  railroads, 
interurban  electric  railroads;  bridge  and  terminal  companies, 
express  companies,  car  and  sleeping-car,  freight  and  freight- 
line  companies  were  included.50 


Law,  Laws  N.  Y.,  1907,  ch.  429.  See 
§§  52-54;  and  Chap.  VI,  herein. 

"The  provisions  of  this  article 
shall  apply  to  the  transportation  of 
passengers,  freight  or  property,  from 
one  point  to  another  within  the  State 
of  New  York,  and  to  any  common 
carrier  performing  such  service." 
Id.,  art.  II,  §  25. 

"This  article  shall  apply  to  the 
manufacture  and  furnishing  of  gas 
for  light,  heat  or  power,  and  the  gen- 
eration, furnishing  and  transmission 
of  electricity  for  light,  heat  or 
power."     Id.,  art.  IV,  §  65. 

The  terms         "Corporation," 

"  Common  Carrier,"  "  Railroad," 
"Railroad  Corporation,"  "Street 
Railroad,"  "Street  Railroad  Cor- 
poration," "Gas  Corporation," 
"Electrical  Corporation,"  "Trans- 
portation of  Property  or  Freight" 
and  "Municipality"  are  defined  in 
said  act,  art.  1,  §  2.  See  §§  52-54, 
and  Chap.  IV,  herein. 

48  Public  Utilities  Act,  Laws  Wis., 
1907,  p.  449,  ch.  499,  §  1797m-l, 
subdv.  1. 

"The  term  'public  utility'  as  used 
in  this  act  shall  mean  and  embrace 
every  corporation,  company,  indi- 
vidual, association  of  individuals, 
their  lessees,  trustees  or  receivers  ap- 
pointed by  any  court  whatsoever, 
and  every  town,  village  or  city  that 
now  or  hereafter  may  own,  operate, 
manage  or  control  any  plant  or  equip- 

142 


ment  or  any  part  of  a  plant  or  equip- 
ment within  the  State,  for  the  con- 
veyance of  telephone  messages  or  for 
the  production,  transmission,  de- 
livery or  furnishing  of  heat,  light, 
water  or  power  either  directly  or  in- 
directly to  or  for  the  public."  Pub- 
lic Utilities  Act,  Laws  Wis.,  1907, 
p.  449,  ch.  499,  §  1797m-l,  subdv.  1. 
"  The  term  '  service '  is  used  in 
this  act  in  its  broadest  and  most 
inclusive  sense."  Public  Utilities 
Law,  Laws  Wis.,  1907,  p.  449,  ch. 
499,    §  1797m-l,  subdv.  4. 

49  "  Railroad  Act "  of  1905. 

50  "The  railroad  commission  of 
Wisconsin  is  vested  with  power  and 
jurisdiction  to  supervise  and  regu- 
late every  public  utility  in  the  State 
and  to  do  all  things  necessary  and 
convenient  in  the  exercise  of  such 
power  and  jurisdiction."  Public 
Utilities  Law;  Laws  Wis.,  1907,  p. 
449,  ch.  499,  §  1797m-2. 

The  "Railroad  Act"  of  1905;  Laws 
of  Wis.,  1905,  p.  549,  ch.  362,  was  en- 
titled "An  act,  to  regulate  railroads 
and  other  common  carriers  in  this 
State,  create  a  board  of  railroad  com- 
missioners, fix  their  salaries,  define 
their  duties,  prevent  unjust  discrim- 
inations, insure  an  adequate  railway 
service,  prescribe  the  mode  of  pro- 
cedure and  the  rules  of  evidence  in 
relation  thereto,  prescribe  penalties 
for  violations,  and  making  an  ap- 
propriation therefor." 


NATURE    OF   CORPORATION   AND   DISTINCTIONS  §   60 

§  60.  Corporation  Considered  as  Civil  or  Political  In- 
stitution— Distinction  Between  Incorporation  and  Corpora- 
tion— Distinction  Between  Public  and  Private  Corporations. 

— It  is  declared  in  an  Ohio  case,  decided  in  1853,  that:  "A  cor- 
poration is  a  civil  institution.  It  is  established  by  a  law  of  the 
State  from  considerations  of  public  policy.  Its  existence,  its 
capacities  and  its  powers  are  all  conferred  by  law  from  some 
real  or  supposed  public  benefit  to  result  from  it.  If  this  mere 
creature  of  the  law  thus  instituted  or  established,  be  not  a 
'political  institution  of  the  State,  it  would  be  difficult  to  con- 
ceive under  what  other  denomination  it  could  be  placed  by 
any  sensible  distinction,  which  could  be  invented.  Mr.  Kyd, 
a  reputable  elementary  author,  has  furnished  the  following 
comprehensive  and  descriptive  definition:  '  A  corporation  or 
body  politic,  or  body  incorporate,  is  a  collection  of  many  in- 
dividuals, united  in  one  body,  under  a  special  denomination, 
having  perpetual  succession  under  an  artificial  form,  and 
vested  by  the  policy  of  the  law  with  a  capacity  of  acting,  in 
several  respects,  as  an  individual,  particularly  of  taking  and 
granting  property,  contracting  obligations  and  of  suing  and 
being  sued;  of  enjoying  privileges  and  immunities  in  common, 
and  of  exercising  a  variety  of  political  rights,  more  or  less 
extensive,  according  to  the  design  of  its  institution,  or  the 
powers  conferred  upon  it,  either  at  the  time  of  its  creation, 
or  at  any  subsequent  period  of  its  existence.'51  In  England  a 
corporation  is  usually  created  by  a  charter  granted  by  the  king, 
but  sometimes  by  an  act  of  Parliament.  But  the  Supreme 
Court  of  the  United  States  say,  in  Bank  of  Augusta  v.  Earle,52 
'In  this  country  no  franchise  can  be  held,  which  is  not  de- 
rived from  the  law  of  the  State.'  In  the  latest  edition  of 
Angell  &  Ames  on  Corporations  53  the  authors  say :  '  The  words 
incorporation  and  corporation  are  frequently  confounded,  par- 
ticularly in  the  old  books.  The  distinction  between  them  is, 
however,  obvious;  the  one  is  a  political  institution,  the  other 

61  Kyd  on  Corp.,  13.  "  Pages  3  and  4. 

82 13  Pet.  (38  U.  S.)  519,  10  L.  ed. 
274. 

143 


§   60  DEFINITIONS,    CLASSIFICATION, 

only  the  act  by  which  that  institution  is  created.  When  a  cor- 
poration is  said  to  be  a  person  it  is  understood  to  be  so  only 
in  certain  respects,  and  for  certain  purposes,  for  it  is  strictly 
a  political  institution.' 54  It  matters  not  that  private  or  in- 
dividual interests  may  be  invested  in  the  corporation,  or  under 
authority  of  the  charter,  so  far  as  this  denomination  of  the 
institution  is  concerned.  Individual  interests  or  investments 
in  private  property  exist  under  a  great  variety  of  the  civil 
institutions  of  the  State.  Private  institutions  are  those  which 
are  created  or  established  by  private  individuals  for  their  own 
private  purposes.  Public  institutions  are  those  which  are 
created  and  exist  by  law  or  public  authority.  Some  public 
benefits  or  rights  may  result  from  the  institutions  of  private 
individuals  or  associations.  So  also  some  private  or  individual 
rights  may  arise  from  public  institutions.  The  only  sensible 
distinction  between  public  and  private  institutions  is  to  be 
found  in  the  authority  by  which,  and  the  purpose  for  which, 
they  are  created  and  exist.  Because,  therefore,  a  corporation 
may  fall  under  the  denomination  of  private  corporations,  in 
the  artificial  distinction  between  public  and  private  corpora- 
tions, it  is  none  the  less  a  public  or  political  institution.  The 
distinction  between  public  and  private  corporations  is  some- 
what arbitrary,  and  by  no  means  determines  whether  the  cor- 
poration is  a  public  or  private  institution.  If  the  stock  in  a 
banking,  railroad,  or  insurance  corporation,  be  exclusively 
owned  by  the  government,  the  institution  is  denominated  a 
public  corporation;  but  if  a  private  individual  be  allowed  to 
own  a  single  share  of  the  stock,  in  common  with  the  govern- 
ment, it  is  said  that  it  becomes  a  private  corporation.  Elee- 
mosynary corporations,  established  for  the  purpose  of  public 
charity  or  for  the  advancement  of  religion,  education  or 
literature,  upon  donations  or  bequests  made  exclusively  for 

54  "A  grant  of  incorporation  is  to  5  Sup.  Ct.  208,  28  L.  ed.  794,  per 

bestow  the  character  and  properties  Field,   J.,   quoting  from   Providence 

of  individuality  on  a  collective  and  Bank  v.  Billings,  4  Pet.  (29  U.  S.) 

changing    body    of    men."     Kansas  514,  562,  7  L.  ed.  939,  per  Marshall, 

Pac.  Rd.  Co.  v.  Atchison,  Topeka  &  C.  J.;  adding:  "  This  capacity  is  al- 

Santa  Fe  Rd.  Co.,  112  U.  S.  414,  416,  ways  given  to  such  a  body." 

144 


NATURE    OF   CORPORATION   AND   DISTINCTIONS  §   60 

these  great  and  beneficial  public  purposes  without  right  to  or 
expectation  of  dividends,  repayment  or  other  individual  or 
private  interest  therein  in  future,  are  denominated  private 
corporations.  But  an  incorporated  village  in  the  use  and 
expenditure  of  whose  property,  the  citizens  of  the  village  have 
individual  and  private  interests,  and  receive  daily  individual 
and  private  benefits,  is  denominated  a  public  corporation. 
To  say  that  an  incorporated  bank,  authorized  and  created 
from  considerations  of  public  policy,  and  endowed  by  law  with 
extraordinary  power  and  sovereign  attribute  of  creating  in 
fact,  the  circulating  medium  of  the  country,  and  regulating  the 
standard  of  value,  is  not  a  public  institution  of  the  State 
adopted  for  the  purposes  of  internal  government,  because  it 
falls  under  the  artificial  denomination  of  private  corporations, 
would  be  arrogant  absurdity.  And  it  would  be  equally  as 
absurd  to  treat  a  railroad  corporation  as  a  private  institution, 
which  is  endowed  with  extensive  powers,  and  the  extraordinary 
sovereign  authority  of  exercising  the  right  of  eminent  domain 
by  taking  private  property  for  public  purposes.  In  truth  and 
in  reality,  whatever  arbitrary  or  fictitious  distinctions  may  be 
created  by  mere  verbiage,  these  corporations  are,  in  fact,  public 
institutions,  created  by  public  authority,  from  considerations 
of  public  policy,  and  endowed  with  highly  important  civil 
power  for  the  advancement  of  public  welfare.  It  would  be 
unreasonable  at  least  (to  speak  with  the  greatest  moderation) 
to  say,  that  because  some  private  interests  are  invested  in 
these  corporations,  that,  therefore,  they  must  be  denominated 
private  institutions,  and  for  that  reason  placed  beyond  the 
reach  of  responsibility  to  the  law-making  power  of  the  State 
by  which  they  are  created.  *  *  *  It  is  admitted  upon  all 
hands,  that  the  legislature  has  control  over  those  corporations 
which  are  denominated  public  corporations,  either  to  modify 
or  to  repeal  their  charters,  as  will  best  subserve  the  public 
interests.  But  it  is  claimed  that  the  charters  of  those  corpora- 
tions, technically  denominated  private  corporations,  must  be 
regarded  as  contracts,  and  therefore  beyond  the  control  and 
regulation  of  the  law-making  power  of  the  State.  And  this, 
10  145 


§   61  .  DEFINITIONS,   CLASSIFICATION, 

according  to  a  late  elementary  work,  is  'the  main  distinction 
between  public  and  private  corporations.'  55  This  distinction 
is  not  founded  on  sound  reason,  but  is  based  upon  a  fiction 
and  has  its  origin  in  that  short-sighted  timidity  of  capitalists, 
which  distrusts  the  integrity  and  stability  of  the  govern- 
ment. *  *  *  The  right  of  Parliament  to  amend  or  repeal 
the  charters  of  private  corporations,  has  for  many  years  been 
undisputed.  *  *  *  Whether  regard  be  had  to  the  fran- 
chise of  the  corporation  alone,  or  to  the  investments  of  private 
property  under  the  authority  of  the  charter,  in  either  instance, 
there  exists  no  good  reason  for  the  distinction  above  mentioned, 
between  public  and  private  corporations.  *  *  *  It  is  ap- 
parent from  a  thorough  examination  of  the  subject,  that  the 
distinction  between  public  and  private  corporations,  as  ordi- 
narily recognized  in  the  books,  is  a  mere  arbitrary  distinction, 
without  foundation  in  the  nature,  objects,  incidents  or  prop- 
erty of  this  class  of  institutions."  56 

§  61.  Public,  Quasi-Public  and  Private  Corporations  De- 
fined and  Distinguished.57 — Public  corporations  are  such  as 
exist  only  and  wholly  for  public  political  purposes,  they  are 
political  corporations.  Strictly  speaking  they  are  such  only 
as  are  founded  by  the  government  for  public  purposes  where 
the  whole  interest  belongs  also  to  the  government.  Therefore, 
if  the  foundation  be  private,  though  under  charter  of  the  gov- 
ernment, the  corporation  is  private,  however  extensive  the 
uses  may  be  to  which  it  is  devoted,  either  by  the  bounty  of  the 
founder  or  the  nature  and  objects  of  the  institution.58    The 

55  Citing  Angell  and  Ames  on  Cor-  from  Ten  Eyck  v.  Delaware  &  Rari- 

porations,  §§27  and  28.  tan  Canal  Co.,  18  N.  J.  L.  200,  203, 

69  Bank  of  Toledo  v.  City  of  Toledo  per    Nevins,    J.     See    Yarmouth    v. 

(Toledo  Bank  v.  Bond),  1  Ohio  St.  North  Yarmouth,  34  Me.  411,  417, 

622,  642-652,  per  Bartley,  C.  J.  56  Am.   Dec.   666,   per  Howard,   J. 

67  See  §  56,  herein.  "The  distinction  between  public  and 

58  Dartmouth    College    v.    Wood-  private    corporations    has    reference 

ward,  4  Wheat.  (17  U.  S.)  518,  4  L.  to  their  powers,  and  the  purposes  of 

ed.  629;  Board  of  Directors  for  Lev-  their    creation.     They    are    public, 

eeing    Wabash    River    v.    Houston,  when    created    for    public    purposes 

71  111.  318,  322,  per  Scott,  J.,  quoting  only,  connected  with  the  administra- 

146 


NATURE    OF   CORPORATION   AND    DISTINCTIONS  §   61 

fact  of  the  public  having  an  interest,  direct  or  incidental,  in 
the  works  or  the  property  or  the  objects  of  a  corporation, 
unless  it  has  the  whole  interest,  does  not  make  it  a  public 
corporation.  All  corporations  whether  public  or  private  are 
founded,  in  the  contemplation  of  the  law,  upon  the  principle, 
that  they  will  promote  the  interest  or  convenience  of  the 
public.59  In  a  California  case  it  is  said  that:  "  'Public  corpo- 
rations are  generally  esteemed  such  as  exist  for  public  pur- 
poses only,  such  as  towns,  cities,  parishes  and  counties;  and 
in  many  respects  they  are  so,  although  they  involve  some 
private  interest.'  *  *  *  The  difference  between  private 
and  public  corporations"  is  "radical,  the  former  being  asso- 
ciations formed  by  voluntary  agreement  of  their  members," 
while  the  latter  "  'are  not  voluntary  associations  at  all,  and 
there  is  no  contractual  relation  between  the  corporators  who 
compose  them;  they  are  merely  governmental  institutions 
created  by  law  for  the  administration  of  the  affairs  of  the 
community.'  *  *  *  To  corporations  proper,  authors  and 
courts  have  added  a  species  called  quasi-corporations,  or  cor- 
porations sub  modo,  i.  e.,  associations  and  government  institu- 
tions possessing  only  a  portion  of  the  attributes  which  dis- 
tinguish  ordinary   public   or   private   corporations.     *     *     * 

tion  of  the  government,  and  where  These  grants  are  essentially  con- 
the  'whole  interests  and  franchises  tracts  which  the  legislature  cannot 
are  the  exclusive  property  and  do-  impair  or  change  without  the  consent 
main  of  the  government  itself.'  of  the  corporation."  Citing  Coke  Lit. 
Over  these  the  legislature  has  §  413;  Vin.  Abr.  Corp.  A.  2;  Phillips 
power,  not  limited  by  the  constitu-  v.  Bury,  2  Term.  Rep.  346;  Dart- 
tion,  to  impose  such  modifications,  mouth  College  v.  Woodward,  4 
extensions  or  restraints  as  the  gen-  Wheat.  (17  U.  S.)  518,  4  L.  ed.  629; 
eral  interests  and  public  exigencies  Allen  v.  McKeen,  1  Sumner,  276; 
may  require  without  infringing  People  v.  Morris,  13  Wend.  (N.  Y.) 
private  rights.  All  corporations  325;  Penobscot  Boom  Corp.  v.  Lam- 
invested  with  subordinate  powers,  son,  16  Me.  224;  Story's  Com.  on 
for  public  purposes,  fall  within  this  Const.  §§  1385-1388;  Angell  &  Ames 
class  and  are  subject  to  legislative  on  Corp.  §§9,  27,  28. 
control.  All  other  corporations  are  S8  Ten  Eyck  v.  Delaware  &  Raritan 
private.  They  exist  by  legislative  Canal  Co.,  18  N.  J.  L.  200,  203,  per 
grants  conferring  powers,  rights  and  Nevins,  J. 
privileges,      for     special     purposes. 

147 


§    61  DEFINITIONS,    CLASSIFICATION, 

These  quasi-corporations  may  be  either  public  or  private,  and 
are  to  be  distinguished  upon  the  same  principle  as  ordinary 
corporations."  60  Again,  it  is  declared,  in  an  early  South 
Carolina  decision,  that  whatever  belongs  to  the  public,  or  peo- 
ple composing  a  government,  or  is  instituted  for  the  good 
government  of  any  part  of  the  people,  is  a  public  or  political 
corporation;  and  that  private  corporations  are  such  as  are 
instituted  for  the  benefit  of  certain  persons  as  individuals,  or 
for  the  purpose  of  applying  private  funds  or  enterprise  and 
skill  to  the  public  good.61  A  statute  may  define  and  limit  the 
meaning  of  the  term  "public  corporation"  and  it  is  asserted 
in  such  a  case  that  before  the  enactment  of  such  a  statute  a 
public  corporation  "was  one  which  was  created  for  public 
purposes  and  for  those  only;  and  all  of  whose  franchises  were 
exercised  for  public  purposes  and  whose  property  belonged  to 
the  public;  such  as  counties,  towns,  parishes  and  school  dis- 
tricts. Individuals  had  no  private  interest  in  them,  such  as 
could  be  released  or  conveyed  to  another.  Private  corpora- 
tions were  those  which  were  created  for  the  immediate  benefit 
and  advantage  of  individuals.  Each  stockholder  had  an  in- 
terest in  them  which  could  be  bought  and  sold,  and  which 
could  be  seized  on  execution.  Canals,  turnpike  roads  and 
bridges,  banks  and  manufacturing  companies  were  of  this 
character,"  and  in  such  case  railroad  companies  would  have 
been  private  corporations.62  So  constitutional  provisions,63 
under  which  discretionary  power  is  vested  in  the  legislature 
to  tax  property  of  corporations,  do  not  apply,  in  the  matter 
of  a  right  to  repeal  a  prior  legislative  exemption,  to  corpora- 
tions which  are  of  a  quasi-public  nature  and  necessary  for 

80  Estate  of  Royer,  Matter  of,  123  (S.  C),  389,  408,  per  O'Neall,  J.,  cit- 

Cal.  614,  620,  44  L.  R.  A.  364,  56  Pac.  ing  Phillips  v.  Bury,  2  Term.  R.  352, 

461,  per  Chipman,  C.    Citing  or  quot-  per    Lord    Holt;    2    Kent's    Comm. 

ing  Dartmouth  College  v.  Woodward,  222,  223. 

4  Wheat.  (17  U.  S.)  518,  563,  4  L.  ed.  62  Dearborn  v.  Boston,  Concord  & 

629,  per  Story,  J.;  Morawetz  on  Corp.  Montreal  Rd.,  24  N.  H.  (4  Fost.)  179, 

(2d  ed.)  §§  3,  6;  2  Kent's  Comm.  274.  189,  190,  per  Eastman,  J.    See  §  56, 

See  §  56,  herein.  herein. 

91  State  v.  Heyward,  3  Rich.  Law  63  Mo.  Const.,  art.  12,  §§  13,  20. 

148 


NATURE   OF   CORPORATION   AND   DISTINCTIONS  §   62 

public  convenience  as  arteries  of  commerce,  the  development 
of  the  State's  resources,  and  the  increase  in  valuation  of  other 
properties,  as  in  the  case  of  railroads,  but  only  apply  to  such 
corporations  as  are  created  solely  for  private  gain  and  are 
those  in  which  the  public  has  no  special  interest,  right  or 
privilege.64 

§  62.  Same  Subject  Continued.65 — A  corporation  is  not 
public  merely  because  its  object  is  of  a  public  character,  and 
this  applies  to  a  private  corporation  authorized  to  construct 
works  of  public  improvement  by  private  capital  for  private 
emolument.66  So  where  a  corporation  is  a  private  one  con- 
ducted for  private  gain,  the  mere  fact  that  it  is  subject  to 
visitation  and  inspection  by  public  officials  does  not  make  it 
a  public  institution.67  And  corporations  in  which  the  stock  is 
owned  by  individuals  are  private  even  though  the  use  may  be 
public  as  in  the  case  of  banks,  insurance  companies,  and  cor- 
porations for  building  bridges,  canals  and  railroads.68  What 
is  said  by  the  court  in  a  Minnesota  case  is  important  here.  It 
is  there  stated  that:  "The  State  may  and  must  commit  the 
discharge  of  its  sovereign  political  functions  to  agencies  se- 
lected by  it  for  that  purpose.  Such  agencies,  while  engaged 
exclusively  in  the  discharge  of  such  public  duties,  do  not  act 
in  any  private  capacity,  but  stand  in  the  place  of  the  State 
and  exercise  its  political  authority.  Therefore,  when  the  State 
creates  public  corporations  solely  for  governmental  purposes, 
such  corporations,  while  engaged  in  the  discharge  of  the  duties 
imposed  upon  them  for  the  sole  benefit  of  the  public,  and  from 
the  performance  of  which  they  derive  no  compensation  or 
benefit  in  their  corporate  capacity,  are  clothed  with  the  im- 
munities and  privileges  of  the  State;  and  no  private  action,  in 

84  Yazoo  &  Mississippi  Valley  Rd.    ware  Rd.  Co.,  26  N.  J.  L.  148,  69  Am. 
Co.  v.  Board  of  Levee  Commissioners    Dec.  595. 

(C.  C),  37  Fed.  24,  case  aff'd  132  U.  87  Wisconsin  Keeley  Institute  Co. 

S.  190,  33   L.   ed.  308,  10  Sup.  Ct.  v.  Milwaukee  County,  95  Wis.   153, 

74.  158,  70  N.  W.  68,  36  L.  R.  A.  55. 

85  See  §  56,  herein.  88  Burhop  v.  City  of  Milwaukee,  21 
88  Tinsman   v.   Belvidere   &  Dela-  Wis.  257,  260,  per  Downer,  J. 

149 


§    62  DEFINITIONS,    CLASSIFICATION, 

the  absence  of  an  express  statute  to  that  effect,  can  be  main- 
tained against  them  for  negligence  in  the  discharge  of  such 
duties.  The  liability  of  cities  and  other  municipal  corpora- 
tions created  by  special  charters  for  negligence  in  the  care  of 
their  streets  is  an  illogical  exception  to  this  rule,  but  the  rule 
itself  is  too  well  settled,  by  the  almost  unanimous  agreement 
of  all  of  the  authorities,  to  be  now  questioned  or  discussed.69 
The  rule,  however,  has  no  application  to  private  corporations, — 
that  is,  to  those  which  are  organized  by  the  voluntary  act  and 
agreement  of  their  members  for  their  own  benefit, — although 
the  creation  of  such  corporations  directly  promotes  the  public 
interest  and  welfare.  It  is  also  subject  to  the  qualification  that 
public  or  quasi-public  corporations  are  not  exempt  from  lia- 
bility, to  which  other  corporations  are  subject,  for  negligence 
in  managing  or  dealing  with  property  or  rights  voluntarily 
held  by  them  for  their  own  profit  and  advantage,  although  in- 
uring ultimately  for  the  benefit  of  the  public." 70  Under 
another  definition,  however,  a  public  corporation  is  one  which 
cannot  carry  out  the  purposes  of  its  organization  without 
chartered  rights  from  the  commonwealth.  Railroads,  canals 
and  gas  companies  must  have  the  right  of  eminent  domain  in 
order  to  perform  their  functions.  A  private  corporation  which 
needs  no  chartered  rights  in  order  to  carry  on  its  business, 
stands  in  no  different  position  from  an  individual.71 

69  Citing  Snider  v.  City  of  St.  Paul,  Pa.  374,  379,  380,  where  it  is  said  as 
51  Minn.  466,  53  N.  W.  763.  to  the  power  of  local  taxation  that: 

70  Lane  v.  Minnesota  State  Agri-  "  It  may  be  somewhat  difficult  to  de- 
cultural  Soc,  62  Minn.  175,  176,  177,  fine  what  is  a  public  work  or  a  public 
29  L.  R.  A.  208,  64  N.  W.  382,  per  corporation  in  this  sense,  but  it  is 
Start,  C.  J.,  citing  Dillon,  Mun.  Corp.  clear  that  one  of  the  characteristics 
§§  980-984;  Oliver  v.  Worcester,  102  is  that  it  has  the  right  of  eminent  do- 
Mass.  489;  Mersey  Docks  v.  Gibbs,  11  main,  that  it  has  franchises  which 
H.  L.  Cas.  686;  Glavin  v.  Rhode  Is-  justifies  the  legislature  in  defining  or 
land  Hospital,  12  R.  I.  411;  Moulton  considering  it  public.  A  mere  private 
v.  Scarborough,  71  Me.  267;  Hannon  corporation  needs  no  franchise  from 
v.  St.  Louis  Co.,  62  Mo.  313.  the  State  in  order  to  carry  on  its  busi- 

71  Allegheny  County  v.  McKees-  ness.  Men  may  manufacture  shoes 
port  Diamond  Market,  123  Pa.  164,  without  corporate  power  but  they 
169,  16  Atl.  619,  per  Hand,  J.  See  cannot  occupy  streets  or  property  of 
Pittsburgh,   Appeal  of  City  of,   123    private  individuals  without  corporate 

150 


NATURE    OF    CORPORATION    AND    DISTINCTIONS  §    63 

§  63.  Duties,  Obligations  and  Powers  as  Affecting  Classi- 
fication or  Nature  of  Corporations — Public  Service  Corpo- 
rations.— There  is  a  certain  class  of  corporations  which  are 
private  in  so  far  as  their  grants  relate  to  their  private  inter- 
ests but  which  also  sustain,  as  a  distinct  class,  a  certain  rela- 
tion to  the  public  as  to  their  duties,  obligations  and  powers. 
Such  corporations,  even  though  technically  private  as  dis- 
tinguished from  those  which  are  technically  public  in  their 
nature,  are  to  some  extent  governmental  agencies  of  the  State, 
they  are  public  agents  or  servants,  or  quasi-public  servants; 
the  duties  which  they  perform  are  public  in  a  certain  degree 
or  quasi-public ;  their  special  privileges  or  franchises  are  granted 
to  enable  them  to  carry  out  the  objects  of  their  creation,  and 
the  consideration  therefor  is  the  performance  of  a  public 
service;  their  grant  presupposes  a  benefit  to  the  public,  and 
has  in  view  some  general  enterprise  of  public  utility,  involving 
public  interests  or  evoked  by  public  necessity;  they  are  created 
or  established  in  these  respects  for  the  benefit  of  the  people 
and  to  subserve  public  ends,  and  the  public  has  a  direct  and 
positive  interest  in  their  business,  such  that  its  rights  will  be 
protected  by  the  courts.  These  corporations  must  also  serve 
all  alike  and  cannot  discriminate;  they  may,  when  authorized, 
exercise  the  right  of  eminent  domain;  they  are  also  subject  to 
reasonable  and  just  governmental  control  and  regulation;  and 
they  cannot  avoid  the  performance  of  the  duties  which  they 
owe  to  the  public  by  neglect  or  refusal,  or  by  agreements 
with  other  persons  or  corporations,  nor  can  they  evade  such 
obligations  by  the  transfer  of  all  their  rights  and  powers,  nor 
disable  themselves  by  any  contract  which  makes  public  ac- 
commodation or  convenience  subservient  to  their  private  in- 
terests, nor  can  they  arbitrarily  abandon  their  duties  or  discon- 
tinue their  service  to  the  public.  It  is  also  true,  however,72 
that  all  corporations  rest,  in  the  contemplation  of  the  law, 
upon  the  principle  that  the  interest  or  convenience  of  the 

power  or  warrant    from   the   State,    properly   called   public  works,"   per 

They  need  a  delegation  of  sovereignty   Hand,  J. 

and  in  such  cases  their  works  may  be        72  See  §§61,  62,  herein. 

151 


§   63  DEFINITIONS,    CLASSIFICATION, 

public  will  be  benefited,  and  that  a  corporation  is  not  neces- 
sarily public  in  its  nature  because  its  object  is  of  a  public 
character;  that  a  corporation  may  also  be  created  to  carry 
out  some  work  of  great  public  utility  and  still  be  one  that  is 
strictly  private  and  not  a  public  service  corporation  in  any 
sense.  Again,  the  power  resides  in  the  government  to  grant 
to  individuals,  acting  as  agents  of  the  State  and  under  legisla- 
tive control,  the  right  to  exercise  the  power  of  eminent  do- 
main as  well  as  to  corporations,  although  such  right  cannot 
be  exercised  for  a  purely  private  enterprise  or  for  private 
uses.73 

73  "  It  has  been  repeatedly  held  that  obligation  to  maintain  its  roads  as  a 
railroad,  telegraph,  and  telephone  thoroughfare  for  the  use  of  the  pub- 
companies  are  quasi-public  servants,  lie'  In  fact,  it  may  be  laid  down  as 
The  nature  of  their  business  makes  a  general  rule  that  whenever  the  aid 
them  so,  and  they  are,  therefore,  of  the  government  is  granted  to  a  pri- 
bound  to  serve  the  public  on  reason-  vate  company  in  the  form  of  a  mo- 
able  terms,  with  impartiality.  They  nopoly,  or  a  donation  of  public  prop- 
are  almost  always  endowed  with  the  erty  or  funds,  or  the  delegation  of 
right  to  appropriate  private  prop-  the  power  of  eminent  domain,  the 
erty,  presumptively  upon  the  theory  grant  is  subject  to  an  implied  condi- 
that  such  corporations  are  quasi-pub-  tion  that  the  company  shall  assume 
lie  servants,  as  their  business  is  one  an  obligation  to  fulfill  the  public  pur- 
in  which  the  public  has  a  direct  and  pose  on  account  of  which  the  grant 
positive  interest.  *  *  *  It  may  was  made."  Corrigan  v.  Coney  Is- 
be  said  that  it  has  long  been  the  pol-  land  Jockey  Club,  22  N.  Y.  Supp.  394, 
icy  of  our  States  to  encourage  the  396,  397,  2  Misc.  512,  51  N.  Y.  St.  R. 
formation  of  private  companies  for  592,  per  Dugro,  J. 
the  construction  and  maintenance  of  "  Turnpikes,  bridges,  ferries,  and 
highways,  railroads,  canals,  bridges,  canals,  although  made  by  individuals 
telegraph  lines,  waterworks  or  gas-  under  public  grants,  or  by  compa- 
works,  by  granting  valuable  fran-  nies,  are  regarded  as  publici  juris. 
chises  or  public  bounties,  or  both,  in  The  right  to  exact  tolls  or  charge 
their  aid,  and  these  grants  have  been  freights  is  granted  for  a  service  to  the 
of  funds  or  property,  the  right  to  re-  public.  The  owners  may  be  private 
ceive  municipal  aid,  subscription:-,  for  companies,  but  they  are  compellable 
shares,  a  delegation  of  the  power  of  to  permit  the  public  to  use  their 
eminent  domain,  an  exemption  from  works  in  the  manner  in  which  such 
taxation  or  a  monopoly,  and  in  each  works  can  be  used."  Olcott  v.  Su- 
instance  the  acceptance  of  the  grant  pervisors,  16  Wall.  (83  U.  S.)  678, 
of  the  public  aid  implies  an  assump-  695,  696,  22  L.  ed.  382,  per  Strong,  J. 
tion  by  the  grantee  of  an  obligation  "Turnpikes  are  public  highways 
in  favor  of  the  public;  for  instance,  on  notwithstanding  the  exaction  of  toll 
the  part  of  a  railroad  company  'an   for  passing  on  them.     Railroads  are 

152 


NATURE    OF    CORPORATION    AND    DISTINCTIONS 


§  64 


§  64.  To  What  Extent  Corporations  Are   "  Persons  " — 
Generally. — Although  a  corporation  is  not  a  natural  person 


public  highways  *  *  *  yet  no  one 
can  travel  on  them  without  paying 
toll.  Railroads,  turnpikes,  bridges, 
ferries  are  all  things  of  public  concern 
and  the  right  to  erect  them  is  a  pub- 
lic right.  If  it  be  conceded  to  a  pri- 
vate individual  or  corporation,  it  is 
conceded  as  a  public  franchise;  and 
the  right  to  take  toll  is  granted  as  a 
compensation  for  erecting  the  work 
and  relieving  the  public  treasury 
from  the  burden  thereof.  Those  who 
have  such  franchises  are  agents  of  the 
public.  They  have,  it  is  true,  a  pri- 
vate interest  in  the  tolls;  but  the 
works  are  public,  and  subject  to  pub- 
lic regulation,  and  the  entire  public 
has  the  right  to  use  them.  *  *  * 
All  bridges  intended  and  used  as 
thoroughfares  are  public  highways 
whether  subject  to  toll  or  not." 
County  Commissioners  v.  Chandler, 
98  U.  S.  205,  208,  24  L.  ed.  625,  per 
Bradley,  J. 

Exclusive  grants  for  ferries, 
bridges  and  turnpikes  are  grants  of 
franchises  of  a  public  character 
appertaining  to  the  government. 
"Their  use  usually  requires  the  exer- 
cise of  the  right  of  eminent  domain. 
It  is  for  the  government  to  determine 
when  one  of  them  shall  be  granted, 
and  the  conditions  upon  which  it 
shall  be  enjoyed.  It  is  the  duty  of 
the  government  to  provide  suitable 
roads,  bridges  and  ferries  for  the  con- 
venience of  the  public,  and  if  it 
chooses  to  devolve  this  duty  to  any 
extent,  or  in  any  locality,  upon  par- 
ticular individuals  or  corporations,  it 
may  of  course  stipulate  for  such  ex- 
clusive privileges  connected  with  the 
franchise  as  it  may  deem  proper, 
without  encroachment  upon  the  free- 


dom or  the  just  rights  of  others.  The 
grant,  with  exclusive  privileges,  of  a 
right  thus  appertaining  to  the  gov- 
ernment, is  a  very  different  thing 
from  a  grant,  with  exclusive  privi- 
leges, of  a  right  to  pursue  one  of  the 
ordinary  trades  or  callings  of  life, 
which  is  a  right  appertaining  solely 
to  the  individual."  Slaughter-House 
Cases,  16  Wall.  (83  U.  S.)  36,  88,  2! 
L.  ed.  394,  per  Field,  J.,  in  dissenti:  - 
opinion. 

The  objects  for  which  a  corpora- 
tion is  created  are  universally  such  as 
the  government  wishes  to  promote. 
They  are  deemed  beneficial  to  the 
country  and  this  benefit  constitutes 
the  consideration,  and,  in  most  cases, 
the  sole  consideration  of  the  grant. 
Dartmouth  College  v.  Woodward,  4 
Wheat.  (17  U.  S.)  518,  4  L.  ed.  629. 

"Other  companies,  such  as  gas  and 
electric  light  companies,  turnpike 
roads  and  canal  companies,  harbors 
and  ferry  companies  are  similar  to 
railways  in  this,  that  they  receive 
their  franchise  as  such  upon  the  con- 
sideration that  the  public  conven- 
ience will  be  served  thereby."  White 
on  Canadian  Company  Law  (ed. 
1901),  p.  368,  §  21. 

In  this  country,  franchises  spring 
from  contracts  between  the  sovereign 
power  and  the  citizen,  made  upon  a 
valuable  consideration,  for  purposes 
of  public  benefit  as  well  as  individual 
advantage.  State  v.  Real  Estate 
Bank,  5  Pike  (5  Ark.),  595,  41  Am. 
Dec.  509. 

"All  corporations,  whether  public 
or  private,  are,  in  contemplation  of 
law,  founded  upon  the  principle  that 
they  will  promote  the  interest  or 
venience  of  the  public."     Board  of 

153 


§  64 


DEFINITIONS,    CLASSIFICATION, 


but  is  a  creature  of  the  State  possessing  no  powers  except  those 
conferred  by  the  State,74  still,  in  a  certain  sense,  the  word 


Directors  for  Leveeing  Wabash  River 
v.  Houston,  71  111.  318,  322,  per  Scott, 
J.,  quoting  Ten  Eyck  v.  Delaware 
&  Raritan  Canal  Co.,  18  N.  J.  L.  200, 
203,  per  Nevins,  J. 

As  to  mutual  obligations  from 
franchise  and  obligations  to  serve 
public,  see  Kent's  Comm.  (14th  ed.) 
bottom  p.  724,  *p.  458. 

See  also  Chap.  VI,  herein. 

As  to  discrimination  see  the  follow- 
ing cases: 

United  States:  Piatt  v.  Lecocq, 
150  Fed.  391;  Little  Rock  &  Memphis 
Rd.  Co,  v.  St.  Louis  Iron  Mountain 
&  Southern  Ry.  Co.,  59  Fed.  400,  402. 

Florida:  State  v.  Atlantic  Coast 
Line  R.  Co.  (Fla...  1906),  40  So.  875. 

Kansas:  Larrabee  Flour  Mills  Co. 
v.  Wisconsin  Pac.  Ry.  Co.,  74  Kan. 
808,  88  Pac.  72. 

Minnesota:  Farwell  Farmers' 
Warehouse  Assoc,  v.  Minneapolis  St. 
Paul  &  Sault  Ste  Marie  Ry.  Co.,  55 
Minn.  8,  12,  56  N.  W.  248. 

New  York:  Rhinehart  v.  Redfield, 
179  N.  Y.  569,  72  N.  E.  1150,  aff'g  87 
N.  Y.  Supp.  789,  93  App.  Div.  410. 

North  Carolina:  Freight  Discrim- 
ination Cases  (Hines  v.  Wilmington 
&  Wedon  Rd.  Co.),  95  N.  C.  434,  446, 
59  Am.  Rep.  250. 

Pennsylvania:  Wright  v.  Balti- 
more &  Ohio  Rd.  Co.,  32  Pa.  Super. 
Ct.  5;  Hagan  v.  Fayette  Gas  Fuel 
Co.,  21  Pa.  Co.  Ct.  503,  29  Pitts.  L. 
J.  (N.  S.)  229. 

Tennessee :  Watauga  Water  Co.  v. 
Wolfe,  99  Tenn.  429,  41  S.  W.  1060; 
Crumley  v.  Watauga  Water  Co.,  99 
Tenn.  420,  41  S.  W.  1058. 

Texas:  Houston  &  Texas  Central 
Ry.  Co.  v.  Rust,  58  Tex.  98,   107; 


Gulf,  Colorado  &  Santa  Fe  Ry.  Co. 
v.  Lone  Star  Salt  Co.,  26  Tex.  Civ. 
App.  531,  63  S.  W.  1025. 

The  corporation  or  person  who  exer- 
cises the  right  of  eminent  domain  as- 
sumes certain  obligations  to  the  pub- 
lic, and  the  grant  of  that  right  carries 
with  it  the  right  of  public  supervision 
and  reasonable  control.  Pottlach 
Lumber  Co.  v.  Peterson,  12  Idaho, 
769,  88  Pac.  426. 

The  power  of  eminent  domain  can 
only  be  granted  for  public  use,  and 
when  it  is  conferred  by  law,  as  in  the 
case  of  irrigation  companies,  upon  a 
corporation,  its  status  as  quasi-pub- 
lic is  fixed  irrespective  of  the  question 
whether  it  exercises  such  power  or 
not.  "It  can  no  more  escape  its 
duty  to  the  public,  because  it  has 
not  exercised  such  power,  than  can 
a  railway  company  who  has  pur- 
chased its  right  of  way  instead  of 
exercising  its  power  to  acquire  it  by 
condemnation  proceedings."  Colo- 
rado Canal  Co.  v.  McFarland  & 
Southwell  (Tex.  Civ.  App.,  1906), 
94  S.  W.  400,  404,  per  Neill,  J. 

The  incorporation  of  a  railroad 
company  by  a  State,  the  granting  to 
it  of  special  privileges  to  carry  out 
the  object  of  its  incorporation,  par- 
ticularly the  authority  to  exercise  the 
State's  right  of  eminent  domain  to 
appropriate  property  to  its  uses,  and 
the  obligation,  assumed  by  the  ac- 
ceptance of  the  charter,  to  transport 
all  persons  and  merchandise  upon  like 
conditions  and  for  reasonable  rates, 
affect  the  property  and  employment 
with  a  public  use,  and  thus  subject 
the  business  of  the  company  to  a  leg- 
islative control  which  may  extend  to 


74  Cassatt  v.  Mitchell  Coal  &  Coke  Co.,  150  Fed.  32. 


154 


NATURE,   OF    CORPORATION    AND    DISTINCTIONS 


§  64 


"person"  applies  to  bodies  politic  and  corporate.75    So  it  is 
declared  in  a  case  in  the  United  States  Supreme  Court  that, 


the  prevention  of  extortion  by  un- 
reasonable charges,  and  favoritism 
by  discriminations.  Georgia  Rd.  & 
Bkg.  Co.  v.  Smith,  128  U.  S.  174,  32 
L.  ed.  377,  9  Sup.  Ct.  47. 

Corporations  subject  to  reasonable 
and  just  regulations  and  rules,  see  the 
following  (      is: 

United  States:  Atlantic  Coast 
Line  Rd.  Co.  v.  North  Carolina  Cor- 
poration Commission,  206  U.  S.  1,  19, 
51  L.  ed.  933,  27  Sup.  Ct.  585,  citing 
numerous  cases;  Chicago,  Burlington 
&  Quincy  Rd.  Co.  v.  Drainage 
Commrs.,  200  U.  S.  561,  584,  50  L. 
ed.  596,  26  Sup.  Ct.  341,  per 
Harlan,  J. 

Florida:  State  v.  Atlantic  Coast 
Line  Rd.  Co.  (Fla.),  41  So.  705;  State 
v.  Atlantic  Coast  Line  Rd.  Co.  (Fla.), 
40  So.  875. 

Idaho:  Pottlach  Lumber  Co.  v. 
Peterson,  12  Idaho,  769,  88  Pac.  426. 

Illinois:  Danville  v.  Danville 
Water  Co.,  180  111.  235,  54  N.  E.  224. 

Indiana:  Central  Union  Teleph. 
Co.  v.  Bradbury,  106  Ind.  1,  9,  5  N. 
E.  721;  Chicago  I.  &  L.  Ry.  Co.  v. 
Railroad  Commission  (Ind.  App.),  78 
N.  E.  338. 

Iowa:  McGuire  v.  Chicago,  Bur- 
lington &  Quincy  R.  Co.  (Iowa),  108 
N.  W.  902. 

Montana:  State  v.  City  of  Helena 
(Mont.),  85  Pac.  744. 

New  York :  Beekman  v.  Saratoga 
&  Schenectady  Rd.  Co.,  3  Paige  Ch. 
(N.  Y.)  45. 

Wisconsin:  Madison,  City  of,  v. 
Madison  Gas  &  Elect.  Co.,  129  Wis. 
249,  108  N.  W.  65. 

Eminent  domain — Delegation  to  awl 
exercise  of  right  />.»/   individuals,  see 


Moran  v.  Ross,  79  Cal.  159;  Ortiz  v. 
Hanson  (Colo.),  83  Pac.  964,  under 
Mills  Ann.  Stat.,  §  2257;  Downing  v. 
More,  12  Colo.  316,  2  Denver  Leg. 
News,  114,  20  Pac.  766. 

Eminent  domain — Private  enter- 
prises— Private  use,  see  the  following 
cases: 

United  States:  Miocene  Ditch  Co. 
v.  Jacobson,  146  Fed.  680,  77  C.  C.  A. 
106. 

California:  See  Madera  County  v. 
Raymond  Granite  Co.,  139  Cal.  128, 
72  Pac.  915,  989. 

Georgia:  Chestatee  Pyrites  Co.  v. 
Cavenders  Creek  Gold  Min.  Co.,  119 
Ga.  354,  46  S.  E.  422. 

Iowa:  Fleming  v.  Hull,  73  Iowa, 
598,  35  N.  W.  673. 

Minnesota:  Minnesota  Canal  & 
Power  Co.  v.  Kooching  Co.,  97  Minn. 
429,  107  N.  W.  405. 

New  York:  East  Canada  Creek 
Electric  Light  &  Power  Co.,  In  re,  99 
N.  Y.  Supp.  109,  49  Misc.  565. 

North  Carolina:  Leigh  v.  Garys- 
burg  Mfg.  Co.,  132  N.  C.  167,  43  S.  E. 
632;  Stratford  v.  Greensboro,  124  N. 
C.  127,  32  S.  E.  394. 

Oregon:  Dalles  Lumbering  Co.  v. 
Urquhart,  16  Oreg.  67,  19  Pac.  78. 

Pennsylvania:  Peifly  v.  Mountain 
Water  Supply  Co.,  214  Pa.  340,  63 
Atl.  751;  Bordentown  Banking  Co.  v. 
Sparhawk,  214  Pa.  334,  63  Atl.  752. 

Texas:  Kyle  v.  Texas  &  N.  O.  R. 
Co.  (Tex.),  4  L.  R.  A.  275. 

Washington:  State  v.  Superior 
Court  of  Thurston  County  (Wash.), 
85  Pac.  666;  Healy  Lumber  Co.  v. 
Morris,  33  Wash.  490,  63  L.  R.  A.  820, 
74  Pac.  681. 

West  Virginia:  Pittsburg,  Wheel- 


75  Erwin  v.  State,  Wolley,  150  Ind.  332,  48  N.  E.  249. 


15.5 


§  64 


DEFINITIONS,    CLASSIFICATION, 


"It  is  indeed  a  mere  artificial  being,  invisible  and  intangible; 
yet  it  is  a  person,  for  certain  purposes,  in  contemplation  of 
law,  and  has  been  recognized  as  such  by  the  decisions  of  this 
court."  76 


ing  &  Ky.  Rd.  Co.  v.  Benwood  Iron 
Works,  31  W.  Va.  710,  2  L.  R.  A.  680, 
8  S.  E.  453,  5  R.  R.  &  Corp.  L.  J.  324. 
As  to  right  of  corporations  to  exer- 
cise power  of  eminent  domain,  see  the 
following  cases: 

United  States:  Postal  Teleg.  Cable 
Co.  v.  Southern  R.  Co.,  89  Fed. 
190. 

Georgia:  Chestatee  Pyrites  Co.  v. 
Cavenders  Creek  Gold  Min.  Co.,  119 
Ga.  354,  46  S.  E.  422;  Gardner  v. 
Georgia  R.  &  Bkg.  Co.,  117  Ga.  522, 
43  S.  E.  863. 

Kansas:  Dillon  v.  Kansas  City,  Ft. 
S.  &  M.  R.  Co.,  67  Kan.  687,  74  Pac. 
251. 

Illinois:  Aurora  &  G.  R.  Co.  v. 
Harvey,  178  111.  477,  53  N.  E.  331. 

Louisiana:  Lawrence  v.  Morgan's 
Louisiana  &  Tex.  R.  &  S.  Co.,  39  La. 
Ann.  427,  2  So.  69. 

Montana:  State  v.  District  Court 
of  Tenth  Judicial  Dist.  of  Meagher 
County,  34  Mont.  535,  88  Pac.  44. 

Nebraska:  State,  Burlington  &  M. 
R.  R.  Co.  v.  Scott,  22  Neb.  628,  36 
N.  W.  121. 

Ohio:  Ohio  State  v.  Toledo  Ry.  & 
Terminal  Co.,  28  Ohio  Cir.  Ct.  R. 
321. 

Pennsylvania:  See  Philadelphia 
M.  &  S.  St.  Ry.  Co.,  In  re,  203  Pa. 
354,  53  Atl.  191. 

New  York:  East  Canada  Creek 
Elect.  Light  &  Power  Co.,  In  re,  99 
N.  Y.  S.  Supp.  109,  49  Misc.  565. 

Virginia:  Zircle  v.  Southern  Ry. 
Co.  (Va.),  45  S.  E.  802. 

Washington:  State  v.  Centralia- 
Chehalis  Elect.  Ry.  &  Power  Co.,  42 
Wash.  632,  85  Pac.  344. 

156 


Corporation  cannot  disable  itself 
from  performance  of  its  public  duties 
or  neglect  or  refuse  to  perform  them, 
or  arbitrarily  discontinue  operations 
as  in  case  of  a  railroad  or  street 
railway  or  other  quasi-public  com- 
pany. 

United  States:  Central  Transp. 
Co.  v.  Pullman  Palace  Car  Co.,  139  U. 
S.  24,  35  L.  ed.  55,  11  Sup.  Ct.  478,  45 
Am.  &  Eng.  R.  Cas.  607,  9  Ry.  & 
Corp.  L.  J.  342,  43  Alb.  L.  J.  328; 
Gibbs  v.  Consolidated  Gas  Co.  of 
Baltimore,  130  U.  S.  396,  397,  32  L. 
ed.  788,  9  Sup.  Ct.  389;  Thomas  v. 
West  Jersey  R.  Co.,  101  U.  S.  71,  83, 
84,  per  Miller,  J.;  M'Cutcheon  v.  Merx 
Capsule  Co.,  71  Fed.  787,  793,  per 
Lurton,  C.  J. 

Connecticut:   Driscoll  v.  Norwich 

&  Worcester  Rd.  Co.,  65  Conn.  230, 
32  Atl.  354. 

Illinois :  Chicago  Gas  Light  &  Coke 

Co.  v.  People's  Gas  Light  &  Coke  Co., 

121  111.  530,  13  N.  E.  169,  per  Ma- 

gruder,  J. ;  Balsley  v.  St.  Louis,  Alton 

&  Terre  Haute  Rd.  Co.,  119  111.  68, 

72,  73,  8  N.  E.  859;  Peoria  &  Rock 

Island  Ry.  Co.  v.  Coal  Valley  Mining 

Co.,  68  111.  489. 

Nebraska:  Chollette  v.  Omaha  & 

Republican  Valley  Rd.  Co.,  26  Neb. 

159,  4  L.  R.  A.  135,  41  N.  W.  1106. 
New  Jersey:   State,  Bridgeton  v. 

Bridgeton  &  M.  Traction  Co.,  62  N.  J. 

L.   592,   43  Atl.   715,    45   L.  R.   A. 

837. 

78  Bank  of  Augusta  v.   Earle,    13 

Pet.   (38  U.  S.)  519,  588,  10  L.  ed. 

274. 

When  corporations  are  and  are  not 

persons,  see  the  following  cases: 


NATURE   OF   CORPORATION   AND   DISTINCTIONS  §   65 

§  65.  To  What  Extent  Corporations  Are  "  Persons " 
Under  Statutes. — If  it  is  within  the  intent  and  meaning  of 
a  statute  that  the  word  "person"  should  include  corporations 
it  will  undoubtedly  be  so  held,  thus  the  term  "any  person  or 
persons"  in  a  crimes  statute  relating  to  the  destruction  of  a 
vessel  extends  to  corporations  and  bodies  politic  as  well  as  to 
natural  persons.77  And  unless  excepted  they  are  also  included 
in  the  word  "persons"  in  statutes  as  to  grants  and  convey- 
ances of  property.78  If  a  statute  relating  to  priority  of  pay- 
ment by  any  person  insolvent  specially  designates  the  class 
intended,  it  does  not  include  a  trading  corporation  not  so 
specified.79  So  corporations  are  to  be  deemed  and  considered 
persons  within  the  act  of  Congress,  1797,  giving  a  priority  of 
debts  to  the  United  States.80    They  are  also  persons  under 


California:  Douglas  v.  Pacific  Mail  Pennsylvania:    Lehigh  Bridge  v. 

S.  S.  Co.,  4  Cal.  304.  Lehigh  Coal  &  Nav.  Co.,  4  Rawle 

Connecticut:   Emerson   v.    Good-  (Pa.),  8. 

win,  9  Conn.  422.  Virginia:  Miller  v.  Commonwealth, 

Georgia:    London  v.  Coleman,  59  27  Gratt.  (Va.)  110;  Western  Union 

Ga.    653;    Southwestern    R.    Co.    v.  Teleg.  Co.  v.   Richmond,  26    Gratt. 

Paulk,  24  Ga.  356.  (Va.)  1. 

Indiana:  White  v.  State,  69  Ind.  Wisconsin:  Fisher  v.  Horicon  Iron 

273.  &  Mfg.  Co.,  10  Wis.  351. 

Kentucky:  Louisville,  City  of,  v.  "United    States    v.    Amedy,     11 

Commonwealth,    1    Duer    (62    Ky.),  Wheat.  (24  U.  S.)  392,  6  L.  ed.  502. 

295,  85  Am.  Dec.  624.  See  cases  in  note  to  §  64,  herein. 

Louisiana:  Factors  &  Traders  Ins.  "The  word  'person'  when  used  in 

Co.  v.  New  Harbor  Protection  Co.,  37  this  act,  includes  an  individual  and  a 

La.  Ann.   233;  Jeffries  v.   Belleville  firm  or   copartnership."    Public  Ser- 

Iron  Works  Co.,  15  La.  Ann.  19.  vice  Commissions  Law  of  N.  Y.,  Laws 

Massachusetts:      Proprietors     of  1907,  chap.  429,  art.  1,  §  2. 

Jeffries    Neck    Pasture    v.   Ipswich,  Commonwealth  is  not  a  person  under 

153  Mass.  42,  26  N.  E.  239.  a  covenant  by  grantor  to  defend  title 

Nebraska:  Chapman  v.  Brewer,  43  in  deed  to  shore  and  tideland  bot- 

Neb.  890.  torn.      Feurer    v.    Stewart,   83   Fed. 

New  York:  La  Farge  v.  Exchange  793. 

Ins.    Co.,    22   N.    Y.    352;   State   v.  78  State  v.  Nashville  University,  4 

Woram,  6  Hill  (N.  Y.),  33.  Humph.  (Tenn.)  157. 

Ohio:  Norris  v.  State,  25  Ohio  St.  79  Commonwealth  v.  Phoenix  Bank, 

217,  18  Am.  Rep.  291;  State  v.  Cin-  11  Met.  129. 

cinnati    Fertilizer  Co.,    24  Ohio  St.  R0  Beaston   v.    Farmers'   Bank,    12 

611.  Pet.  (37  U.  S.)  102,  9  L.  ed.  1017. 

157 


§§  66,  67 


DEFINITIONS,    CLASSIFICATION, 


taxation  statutes;81  and  are  also  within  a  law  providing  for 
attachments.82 

§  66.  Corporations  as  "  Persons  "  Under  Constitution  of 
United  States. — Again,  corporations  are  persons  within  the 
meaning  of  the  clauses  in  the  Fourteenth  Amendment  to  the 
Constitution  of  the  United  States  concerning  the  deprivation 
of  property  and  concerning  the  equal  protection  of  the  laws.83 
It  is  held,  however,  within  this  amendment  of  the  Constitu- 
tion, that  "due  process  of  law"  protects  natural  and  not  arti- 
ficial persons  in  their  "liberty."84 

§  67.  Corporations  as  "  Citizens  "  for  Federal  Jurisdic- 


81  People  v.  Utica  Ins.  Co.,  15 
Johns.  (N.  Y.)  382,  8  Am.  Dec.  243; 
International  Life  Ins.  Co.  v.  Commr. 
of  Taxes,  28  Barb.  (N.  Y.)  318.  Is  an 
individual  under  a  tax  law.  Otis  Co. 
v.  Ware,  8  Gray  (Mass.),  509. 

82  Planters'  &  M.  Bank  v.  Andrews, 
8  Port.  (Ala.)  404;  Mineral  Point  R. 
Co.  v.  Keep,  22  111.  9. 

83  United  States:  Smyth  v.  Eames, 
169  U.  S.  466,  522,  42  L.  ed.  819,  18 
Sup.  Ct.  418;  Covington  &  Lex.  Turn- 
pike R.  Co.  v.  Sandford,  164  U.  S. 
578,  592,  41  L.  ed.  560,  17  Sup.  Ct. 
198;  Charlotte,  Columbia  &  Augusta 
Rd.  Co.  v.  Gibbes,  142  U.  S.  386,  12 
Sup.  Ct.  255,  35  L.  ed.  1051,  48  Am. 
&  Eng.  R.  Cas.  595,  aff'g  s.  c,  27  S.  C. 
385,  4  S.  E.  49;  Minneapolis  &  St.  L. 
R.  Co.  v.  Beckwith,  129  U.  S.  26,  32 
L.  ed.  585,  17  Wash.  L.  Rep.  34,  39 
Alb.  L.  J.  166,  5  R.  R.  &  Corp.  L.  J. 
315,  9  Sup.  Ct.  207;  Missouri  Pac.  R. 
Co.  v.  Mackey,  127  U.  S.  205,  32  L. 
ed.  107;  Minneapolis  &  St.  L.  R.  Co.  v. 
Herrick,  127  U.  S.  210,  32  L.  ed.  109; 
Pembina  Consolidated  Silver  Mining 
&  Milling  Co.  v.  Pennsylvania,  125 
U.  S.  181,  8  Sup.  Ct.  737,  31  L.  ed.  65; 
Northwestern  Fertilizer  Co.  v.  Hyde 
Park,  Fed.  Cas.  No.  10,336. 

158 


California:  Johnson  v.  Goodyear 
Min.  Co.,  127  Cal.  4,  59  Pac.  304. 

Iowa:  McGuire  v.  Chicago,  Bur- 
lington &  Quincy  R.  Co.  (Iowa),  108 
N.  W.  902. 

Maine:  Hammond  Beef  &  P.  Co. 
v.  Best,  91  Me.  431,  40  Atl.  338. 

Ohio :  Wheeling  Bridge  &  Terminal 
Ry.  Co.  v.  Gilmore,  8  Ohio  Cir.  Ct.  R. 
655,  658,  1  Ohio  Dec.  390. 

Tennessee:  Knoxville  &  O.  R.  Co. 
v.  Harris,  99  Tenn.  684,  43  S.  W. 
115. 

See  Lake  Shore  &  Mich.  Southern 
Ry.  v.  Smith,  173  U.  S.  684,  690,  43 
L.  ed.  858,  19  Sup.  Ct.  565;  Blake  v. 
McClung,  172  U.  S.  239,  259,  19  Sup. 
Ct.  165,  43  L.  ed.  432;  Gulf,  Colorado 
&  Santa  Fe  Ry.  Co.  v.  Ellis,  165  U.  S. 
150, 154, 17  Sup.  Ct.  255, 41  L.  ed.  666. 

Compare  State  v.  Brown  &  Sharpe 
Mfg.  Co.,  18  R.  I.  16,  25  Atl.  49; 
Central  Pac.  R.  Co.  v.  State  Board  of 
Equalization,  60  Cal.  35. 

84  Western  Turf  Assn.  v.  Green- 
burg,  204  U.  S.  359,  51  L.  ed.  520,  27 
Sup.  Ct.  384,  aff'g  148  Cal.  126,  82 
Pac.  684.  See  Pittsburgh,  Cincin- 
nati, Chicago  &  St.  Louis  R.  Co.  v. 
Lightheiser,  168  Ind.  438,  78  N.  E. 
1033. 


NATURE   OF   CORPORATION   AND   DISTINCTIONS 


§   67 


tional  Purposes— Not  "  Citizens  "  Under  Constitution  of 
United  States. — Corporations  are  for  purposes  of  jurisdiction 
in  the  Federal  courts  conclusively  presumed  to  be  citizens  of 
the  State  in  which  created.85  And  a  national  bank  is  held,  in 
an  early  case  in  Nevada,  to  be  for  jurisdictional  purposes,  a 
citizen  of  the  State  wherein  it  is  located.86    Corporations  are 


85  Adams  Express  Co.  v.  Ohio  State 
Auditor,  166  U.  S.  185,  224,  41  L.  ed. 
965,  17  Sup.  Ct.  604,  per  Brewer,  J. 
See  St.  Louis,  City  of,  v.  Ferry  Co.,  11 
Wall.  (78  U.  S.)  423,  20  L.  ed.  192; 
§§  52,  53,  herein. 

88  Davis  v.  Cooke,  9  Nev.  134.  The 
court,  per  Belknap,  J.,  said:  "It  is 
urged  by  respondent  in  justification 
of  the  ruling  of  the  District  Court 
upon  defendant's  motion  for  removal 
that  as  the  First  National  Bank  of 
Nevada  was  incorporated  under  an 
act  of  the  Congress  of  the  United 
States  it  is  a  citizen  of  the  United 
States,  and  cannot  be  treated  as  a 
citizen  of  this  State  for  jurisdictional 
purposes.  This  question  was  thor- 
oughly investigated  by  Judge  Blatch- 
ford  in  the  case  of  the  Manufacturers' 
National  Bank  v.  Banck,  2  Abb. 
(U.  S.)  232.  The  various  provisions, 
in  respect  to  the  'location '  of  banking 
associations  incorporated  under  the 
act  of  Congress  of  June  3,  1864,  en- 
titled, 'An  act  to  provide  a  national 
currency  secured  by  a  pledge  of 
United  States  bonds,  and  to  provide 
for  the  circulation  and  redemption 
thereof,'  are  there  discussed.  By  the 
sixth  section  of  the  act  it  is  provided 
that  the  persons  uniting  to  form  a 
banking  association  under  the  act 
shall  specify  in  an  organization  certifi- 
cate the  place  where  its  operations  of 
discount  and  deposit  are  to  be  carried 
on,  designating  the  State,  territory 
or  district,  and  also  the  particular 
county   and   city,    town   or    village. 


And  by  the  eighth  section  it  is  pro- 
vided that  its  usual  business  shall  be 
transacted  at  an  office  or  banking 
house  located  at  the  place  specified 
in  its  organization  certificate.  The 
ninth  section  provides  that  the  affairs 
of  such  banking  association  shall  be 
managed  by  a  board  of  directors,  at 
least  three-fourths  of  whom  shall 
have  resided  in  the  State,  territory  or 
district  in  which  such  association  is 
located  one  year  next  preceding  their 
election  as  directors,  and  be  residents 
of  the  same  during  their  continuance 
in  office.  Further  sections  speak  of 
the  place  where  the  association  is  '  lo- 
cated' and  'established.'  'It  is  quite 
apparent  from  all  of  these  statutory 
provisions,'  says  Judge  Blatchford, 
'that  Congress  regards  a  national 
banking  association  as  being  "lo- 
cated" at  the  place  specified  in  its 
organization  certificate.  If  such 
place  is  a  place  in  a  State,  the  associ- 
ation is  located  in  the  State.  It  is,  in- 
deed, located  at  but  one  place  in  the 
State;  but  when  it  is  so  located,  it  is 
regarded  as  located  in  the  State.  The 
requirement  that  at  least  three- 
fourths  of  the  directors  of  the  associ- 
ation shall  be  residents,  during  their 
continuance  in  office,  in  the  State  in 
which  the  association  is  located, 
especially  indicates  an  intention  on 
the  part  of  Congress  to  regard  the  as- 
Bociation  as  belonging  to  such  State. 
Three-fourths  of  the  legal  representa- 
tives of  the  unknown  associates  form- 
ing the  corporation,  with  which  repre- 

159 


§  67 


DEFINITIONS,    CLASSIFICATION, 


not,  however,  citizens  within  the  meaning  of  the  Constitution  of 
the  United  States,  under  that  clause  which  provides  that  the 


sentatives  any  person  dealing  with 
the  corporation  must  deal,  are  re- 
quired to  reside  in  the  State  where 
the  corporation  is  "  located." '  A  cor- 
poration existing  by  virtue  of  an  act 
of  the  Congress  of  the  United  States 
must  be  considered  a  citizen  of  the 
United  States.  But  a  citizen  of  the 
United  States,  resident  in  any  State 
in  the  Union,  is  a  citizen  of  that  State, 
Gassies  v.  Ballou,  6  Pet.  (31  U.  S.) 
761,  8  L.  ed.  573.  The  residence  of 
the  National  Bank  being  in  Nevada, 
it  follows  that  it  is  a  citizen  of  Ne- 
vada." 

See  also  Cooke  v.  State  National 
Bank  of  Boston,  52  N.  Y.  96,  to  the 
same  point  where  the  court,  per 
Church,  Ch.  J.,  also  says:  "As  an 
original  question,  it  seems  clear  that 
the  residence  and  citizenship  of  a  cor- 
poration should  be  determined  with- 
out regard  to  the  residence  of  its 
corporators.  No  valid  reason  is  per- 
ceived for  applying  the  presumption, 
or,  if  applied,  it  furnishes  no  ground 
for  the  doctrine  that  the  suit  is  by  the 
corporators  in  their  personal  capacity. 
Although  they  have  an  interest  in  the 
suit,  they  are  not  parties  in  any  legal 
sense,  and  their  interests  are  merged 
in  the  corporate  body.  But  I  cannot 
agree  with  the  counsel  for  the  plain- 
tiff, that  if  the  doctrine  of  presump- 
tion is  to  be  maintained  it  would  not 
apply  to  these  banking  associations. 
Their  location  and  place  of  business 
are  fixed  by  the  law  of  their  creation. 
They  are  made  inhabitants  of  States 
for  the  purposes  of  taxation,  and  a 
majority  of  their  managing  officers 
are  required  by  law  to  reside  in  the 
States  of  their  respective  location. 
I  see  no   reason  why  this  artificial 

160 


presumption  should  not  as  well  apply 
to  them  as  if  incorporated  by  state 
authority,  especially  as  in  this  case 
where  a  state  bank  by  virtue  of  the 
statute  was  transmuted  from  a  state 
to  a  national  bank.  The  day  before 
the  change  it  is  admitted  that  the 
presumption  would  apply,  while  the 
day  after  it  is  insisted  that  it  would 
not,  although  the  change  was  in  form 
only,  and  not  in  substance.  Inde- 
pendent of  this  presumption,  these 
banks  should  be  deemed  citizens  of 
the  States  where  by  law  they  are  lo- 
cated, within  this  clause  of  the  con- 
stitution, and  this  does  not  impair  the 
decisions  in  this  State,  holding  that 
they  are  foreign  corporations  under 
our  attachments  laws,  although  lo- 
cated here,  because  these  decisions 
are  based  upon  the  statutory  defini- 
tion of  foreign  corporations."  See  in 
this  connection,  Blake  v.  McClung, 
at  end  of  note  to  this  section;  Chat- 
ham National  Bank  of  New  York  v. 
Merchants'  National  Bank  of  West 
Virginia,  4  Thomp.  &  Cook  (N.  Y.), 
196. 

At  the  present  time  under  the  Re- 
moval Statute  (Acts  of  Congress, 
Aug.  13,  1888,  c.  866,  25  Stat.  433, 
U.  S.  Comp.  Stat.  1901,  pp.  508,  509) 
a  suit  between  citizens  of  different 
States  may  be  removed  to  the  Federal 
court  though  neither  party  is  a  resi- 
dent of  the  State  in  which  the 
suit  is  brought.  Examine  the  fol- 
lowing cases:  Louisville,  N.  A.  & 
C.  Ry.  Co.  v.  Louisville  Trust  Co., 
174  U.  S.  552,  43  L.  ed.  1081,  19 
Sup.  Ct.  817;  Memphis  &  Charles- 
ton R.  Co.  v.  Alabama,  107  U.  S.  581, 
2  Sup.  Ct.  432,  27  L.  ed.  518;  Foulk  v. 
Gray   (U.  S.  C.  C),   120  Fed.   156; 


NATURE    OF   CORPORATION    AND    DISTINCTIONS 


§  67 


citizens  of  each  State  shall  be  entitled  to  all  privileges  and 
immunities  of  citizens  of  the  several  States,87  nor  do  they 
come  within  the  protection  of  that  clause  of  the  Fourteenth 
Amendment  which  prohibits  the  abridgment  of  such  privileges 
and   immunities.88     When   an   existing  railroad   corporation, 


Winn  v.  Wabash  R.  Co.  (U.  S.  C.  C), 
118  Fed.  55;  First  National  Bank  v. 
Bridgeport  Trust  Co.  (U.  S.  C.  C). 
117  Fed.  969;  Illinois  Cent.  Ry.  Co. 
v.  Hibbs,  25  Ky.  L.  Rep.  1899,  78  S. 
W.  1116;  Illinois  Cent.  Ry.  Co.  v. 
Whitworth,  24  Ky.  L.  Rep.  2044,  25 
Ky.  L.  Rep.  439,  73  S.  W.  766,  75 
S.  W.  849;  Cincinnati,  N.  O.  &  T.  P. 
Ry.  Co.  v.  Cook,  23  Ky.  L.  Rep. 
2410,  67  S.  W.  383;  Allison  v.  South- 
ern Ry.  Co.,  129  N.  C.  336,  40  S.  E. 
91;  Calvert  v.  Southern  Ry.  Co.,  64 
S.  C.  139,  41  S.  E.  963,  aff'g  36  S. 
E.  750. 

87  Art.  IV,  §  2. 

88  United  States:  Orient  Ins.  Co.  v. 
Daggs,  172  U.  S.  557,  19  Sup.  Ct.  281, 
43  L.  ed.  552;  Norfolk  &  Western  Rd. 
Co.  v.  Pennsylvania,  136  U.  S.  114, 
34  L.  ed.  394,  10  Sup.  Ct.  958;  Pem- 
bina Consol.  Silver  Mining  &  Milling 
Co.  v.  Pennsylvania,  125  U.  S.  181,  8 
Sup.  Ct.  737,  31  L.  ed.  650;  Philadel- 
phia Fire  Assn.  v.  New  York,  119  U. 
S.  110,  7  Sup.  Ct.  108,  30  L.  ed.  342; 
Liverpool  Ins.  Co.  v.  Massachusetts, 
10  Wall.  (77  U.  S.)566,  19  L.  ed.  1029; 
Paul  v.  Virginia,  8  Wall.  (75  U.  S.) 
168,  19  L.  ed.  357;  Bank  of  Augusta 
v.  Earle,  13  Pet.  (38  U.  S.)  519,  10  L. 
ed.  274;  Bank  of  United  States  v. 
Deveaux,  5  Cranch  (9  U.  S.),  61,  3  L. 
ed.   38;   Kirben   v.   Virginia-Carolina 


Letson,  2  How.  (43  U.  S.)  497,  11  L. 
ed.  553. 

Alabama:  American  Union  Teleg. 
Co.  v.  Western  Union  Teleg.  Co.,  67 
Ala.  26,  42  Am.  Rep.  90. 

Delaware:  State  v.  Delaware  & 
Atl.  Teleg.  &  Teleph.  Co.,  7  Houst. 
(Del.)  269,  31  Atl.  714. 

Illinois:  Cincinnati  Mut.  Health 
Assur.  Co.  v.  Rosenthal,  55  111.  85,  8 
Am.  Rep.  626;  Ducat  v.  Chicago,  48 
III.  172,  95  Am.  Dec.  529. 

Indiana:  Schmidt  v.  Indianapolis 
(Ind.,  1907),  80  N.  E.  632;  Farmers' 
&  Merchants'  Ins.  Co.  v.  Narrah,  47 
Ind.  236. 

Kentucky:  Merchants  National 
Bank  v.  Ford,  30  Ky.  L.  Rep.  558,  99 
S.  W.  260;  Commonwealth  v.  Milton. 
12  B.  Mon.  (51  Ky.)  212,  54  Am.  Dec. 
331;  Woodward  v.  Commonwealth, 
9  Ky.  L.  Rep.  670,  7  S.  W.  613. 

New  Jersey:  Tatem  v.  Wright,  23 
N.  J.  L.  429. 

New  York:  People  v.  Imlay,  20 
Barb.  (N.  Y.)  68. 

Ohio :  Western  Union  Teleg.  Co.  v. 
Mayer,  28  Ohio  St.  521. 

Rhode  Island:  State  v.  Brown  & 
Sharpe  Mfg.  Co.,  18  R.  I.  16,  25  Atl. 
246. 

Virginia:  Slaughter  v.  Common- 
wealth, 13  Gratt.  (Va.)  767. 

While  the  members  of  a  corporation 


Chemical  Co.,  145  Fed.  288,  292,  per    are,  for  purposes  of  suit  by  or  against 


Dayton,  Dist.  J.;  Berry  v.  Mobile 
Life  Ins.  Co.,  Fed.  Cas.  No.  1,358; 
See  Ohio  &  Mississippi  Rd.  Co.  v. 
Wheeler,  1  Black.  (66  U.  S.)  286,  17 
L.  ed.  130.  Compare  Louisville, 
Cincinnati  &  Charleston  Rd.  Co.  v. 

11 


it  in  courts  of  the  United  States,  to  be 
conclusively  presumed  to  be  citizens  of 
State  creating  it,  the  corporation  itself 
is  not  a  citizen  within  the  meaning  of 
the  provisions  of  the  Constitution 
that  the  citizens  of  each  State  shall  be 

161 


§   67  DEFINITIONS,    CLASSIFICATION, 

organized  under  the  laws  of  one  State,  is  authorized  under  the 
laws  of  another  State,  to  extend  its  road  into  the  latter,  it 
does  not  become  a  citizen  of  the  latter  State  by  exercising  this 
authority,  unless  the  statute  giving  this  permission  must  nec- 
essarily be  construed  as  creating  a  new  corporation  of  the 
State  which  grants  this  permission.89 

entitled  to  all  privileges  and  immuni-  different  State  from  that  by  which  it 

ties  of  citizens  in  the  United  States,  was  chartered,  unless  the  persons  who 

Blake  v.  McCIung,  172  U.  S.  239,  19  compose  the  corporate  body  are  all 

Sup.  Ct.  165,  43  L.  ed.  432.  citizens  of  that  State.    Ohio  &  Miss. 

A    corporation    is    not    a    citizen  Ry.  Co.  v.  Wheeler,  1  Bl.  (66  U.  S.) 

within  the  meaning  of  the  Constitu-  286,  17  L.  ed.  130. 

tion  of  the  United  States,  and  cannot  89  Pennsylvania    R.    R.  Co.  v.  St. 

maintain  a  suit  in  a  court  of  the  Uni-  Louis,  A.  &  T.  H.  R.  R.  Co.,  118  U.  S. 

ted  States  against  the  citizens  of  a  290,  6  Sup.  Ct.  1094,  30  L.  ed.  83. 


162 


NATURE  OF  VARIOUS  CORPORATIONS 


68 


CHAPTER  VI. 


NATURE   OF   VARIOUS   CORPORATIONS. 


68. 

Agricultural     Societies — State 

§  80. 

Board  of  Agriculture — Ag- 

81. 

ricultural  College. 

82. 

69. 

Banks. 

70. 

Bridge  Companies. 

83. 

71. 

Building    and    Loan    Associa- 

tions. 

84. 

72. 

Canal  Companies. 

73. 

Colleges — State    University. 

74. 

Common  Carriers. 

85. 

75. 

Drainage     Companies — Drain- 

86. 

age — Constitutional    Law — 

87. 

Police  Power. 

88. 

76. 

Electric  Light,  Heat  and  Power 

Companies. 

89. 

77. 

Electric  Light,  Heat  and  Power 
Companies — When  a  "  Man- 

90. 

ufacturing"  Company. 

91. 

78. 

Electric  Light,  Heat  and  Power 

92. 

Companies — When     not     a 

93. 

"Manufacturing"  Company. 

94. 

79. 

Express  Companies. 

95. 

Ferries — Ferry  Company. 

Fire  Engine  Company. 

Gas  Companies — Public  Serv- 
ice Corporation. 

Gas  —  Natural  Gas  Compa- 
nies. 

Gas  Company — Natural  Gas 
Company  When  "  Manu- 
facturing" Company. 

Heating  Corporation. 

Hospital  Corporation. 

Insurance  Companies. 

Irrigation  Companies — Irriga- 
tion Districts. 

Levee  Districts — Levee  Boards. 

Log  Driving  or  Boom  Corpora- 
tion. 

Manufacturing  Corporations. 

Market  Company. 

Medical  College. 

Park  Association. 

Plank  Roads. 


§  68.  Agricultural  Societies— State  Board  of  Agriculture- 
Agricultural  College. — Under  an  Alabama  decision  an  agri- 
cultural society  is  a  public  corporation.1  It  is  also  so  under  an 
Illinois  case.2  Under  an  Iowa  decision  it  is  held  to  be  in  no 
sense  a  corporation  for  pecuniary  profit,  but  an  agency  of  the 
State  which  exists  for  the  sole  purpose  of  promoting  the  pub- 
lic interests  in  the  business  of  agriculture.3  But  in  another 
case  in  the  same  State  it  is  declared  that  the  objects  of  an 
agricultural  society  may  be  public  and  yet  it  is  essentially  a 

1  Dillard  v.  Webb,  55  Ala.  468.  '  Horn  v.  Iowa  State  Agricultural 

2  Livingston  County  Agricultural  Soc,  91  Iowa,  97,  98,  58  N.  W.  1092, 
Society  v.  Hunter,  110  111.  155.  24  L.  R.  A.  655. 

163 


§    68  NATURE  OF  VARIOUS  CORPORATIONS 

private  corporation  even  though  it  is  not  organized  for  pe- 
cuniary profit.4  So  in  Kentucky  such  societies  are  private 
corporations.5  In  Michigan,  they  are  said  to  be  quasi-public 
in  their  nature.6  In  Maine  such  a  society  is  an  aggregate  cor- 
poration as  distinguished  from  quasi-corporations  and  may  be 
liable  in  its  corporate  capacity  for  its  negligent  acts.7  Under 
a  Minnesota  decision  it  appeared  that  a  state  agricultural  so- 
ciety was  not,  under  the  complaint  therein  and  the  laws, 
shown  to  be  a  public  corporation  organized  for  the  sole  purpose 
of  discharging  a  governmental  function,  and  it  was  held  that 
annual  contributions  by  the  State  did  not  make  it  a  public 
corporation  for  the  sole  purpose  of  discharging  governmental 
functions  so  as  to  relieve  it  from  its  negligence.8  In  Nebraska 
these  societies  are  declared  not  to  be  corporations  within  the 
ordinary  meaning  of  the  term,  but  are  rather  agencies  adopted 
by  the  State  for  the  purpose  of  promoting  the  interests  of 
agriculture  and  manufacturing.9  In  a  North  Carolina  case  they 
seem  to  be  considered  as  public  corporations.10  But  under  an 
Ohio  decision  they  are  not  public  agencies  of  the  State.  They 
are  the  result  of  the  voluntary  association  of  the  persons  com- 
posing them,  and  although  their  purposes  are  public  in  a 
certain  sense  as  conducing  to  the  public  welfare  yet  all  private 
corporations  are  for  a  public  purpose  in  the  sense  that  they 
accomplish  some  public  good  or  are  of  some  public  benefit.11 
A  state  board  of  agriculture,  created  by  statute  as  a  body 
corporate  with  perpetual  succession,  is,  in  Indiana,  a  private 

4 Thompson  v.  Lambert,  44  Iowa,        'State  v.  Robinson,  35  Neb.  401, 

239.  53  N.  W.  213,  17  L.  R.  A.  383. 

5  Commonwealth  v.  Bacon,  1  10  State  v.  Stovall,  103  N.  C.  416,  8 
Bush  (Ky.),  210,  26  Am.  Rep.  189.  S.  E.  900. 

6  See  Kent  County  Agricultural  n  Dunn  v.  Agricultural  Soc,  46 
Soc.  v.  Housemary,  81  Mich.  609,  Ohio  St.  93,  99,  18  N.  E.  496,  15  Am. 
46  N.  W.  15.  St.  Rep.  556,  1  L.  R.  A.  754. 

7  Brown  v.  South  Kennebec  Ag-  County  Agricultural  Societies  are 
ricultural  Soc,  47  Me.  275,  74  Am.  corporations  for  public  purposes. 
Dec.  484.  Stewart  v.  Hardin  County  Agricul- 

8  Lane  v.  Minnesota  State  Agricul-  tural  Soc.  Comm'rs  (Dist.  Ct.),  7 
tural  Soc,  62  Minn.  175,  64  N.  W.  Am.  Law  Rec  668,  6  Ohio  Dec. 
382,  29  L.  R.  A.  208.  751. 

164 


NATURE   OF   VARIOUS    CORPORATIONS  §   69 

corporation  although  the  public  has  an  interest  therein,  and 
the  State  has  voluntarily  aided  it  by  contributions  and  appro- 
priations, and  no  shares  of  stock  are  issued  and  held  by  trustees 
or  private  individuals.12  In  Wyoming  it  is  held  that  an  agri- 
cultural college  which  is  subject  to  state  visitation  under  the 
statute  of  its  creation  and  incorporation  is  a  public  corpora- 
tion and  that  the  State  is  not  prohibited  from  repealing  the 
creative  act,  even  though  property  had  been  devised  or  be- 
queathed in  trust  for  the  benefit  of  such  college.13 

§  69.  Banks. — A  bank  is  a  public  corporation  where  the 
stock  is  exclusively  owned  by  the  government.14  It  is  also 
held  in  an  Ohio  case  that  a  bank  is  a  public  institution,  a  pub- 
lic corporation  created  solely  for  public  and  not  for  private 
purposes,  and  is  subject  to  public  control  to  extend  or  revoke 
its  privileges  according  to  the  emergencies  of  public  necessity 
or  policy.15    In  a  New  Jersey  case  it  is  declared  that  banks  of 

12  Downing  v.  Indiana  State  Board  to  appropriate  private  property  with- 
of  Agriculture,  129  Ind,  443,  28  N.  E.  out  the  consent  of  the  owners?"  and 
123,  12  L.  R.  A.  664.  The  loaning  of  in  conclusion  the  court  also  said:  "  It 
money  to  such  board  by  the  State  may,  therefore,  be  declared,  that  the 
was  held  to  amount  to  a  legislative  Piqua  Branch  (Bank)  and  all  other 
construction  of  its  charter  as  being  a  companies  organized  under  the  act  of 
private  corporation.  February  24,  1845,  are  public  corpo- 

13  State  ex.  rel.  Agricultural  Col-  rations — created  for  public  purposes, 
lege  v.  Irvine,  14  Wyo.  318,  373-376,  and  subject  to  the  emergencies  of  pub- 
84  Pac.  90,  aff' d  Wyoming  Agricul-  lie  necessity  or  policy,  as  declared, 
tural  College  v.  Irvine,  206  U.  S.  278.    from  time  to  time,  by  the  legislature. 

14  Tinsman  v.  Belvidere  Delaware  That  the  charters  of  such  corpora- 
Rd.  Co.,  26  N.  J.  L.  148,  172,  69  Am.  tions  may  be  repealed  or  altered 
Dec.  595,  quoting  from  2  Kent's  without  the  consent  of  the  corpora- 
Comm.  305.  tors  was  admitted  by  all  the  judges  in 

15  Knoup  v.  Piqua  Bank,  1  Ohio  the  Dartmouth  College  case,  and  is 
St.  613,  609,  619,  621,  622,  per  Cor-  established  by  many  other  authori- 
win,  J.,  who  said:  "But  banking  is  ties.  Terrel  v.  Taylor,  9  Cranch  (13 
no  more  a  private  business,  certainly  U.  S.),  43,  3  L.  ed.  650;  Town  of  Mari- 
than  making  a  railroad,  or  a  turnpike,  etta  v.  Fearing,  4  Ohio,  427;  People 
and  yet,  when  they  are  made,  in  vir-  v.  Morris,  13  Wend.  (N.  Y)  325." 
tue  of  a  franchise  of  eminent  domain,  The  case  of  Dartmouth  College  v. 
the  corporations  arc  public  corpora-  Woodward,  4  Wheat.  (17  U.  S.)  518, 
tions.  For  how  otherwise,  I  repeat,  4  L.  ed.  629,  above  referred  to,  held, 
could  the  legislature  authorize  them    however,  that  the  charter  granted  to 

165 


§   70  NATURE   OF  VARIOUS   CORPORATIONS 

deposit  and  discount,  as  well  as  those  that  issue  circulation, 
and  also  savings  banks,  are  quasi-public  institutions  and 
properly  subject  to  statutory  regulations  for  the  protection  of 
those  who  deal  with  them  as  depositors.16  But  it  is  also  as- 
serted in  the  same  State  that  a  bank  owned  by  private  persons 
is  a  private  corporation,  even  though  its  operations  and  ob- 
ject partake  of  a  public  nature  and  even  though  the  govern- 
ment has  shared  with  the  corporators  in  the  stock.  "The  same 
thing  may  be  said  of  insurance,  canal,  bridge,  turnpike  and 
railroad  companies.  The  uses  may  in  a  certain  sense  be  called 
public,  but  the  corporations  are  private."  17  So  under  an 
Indiana  case  banking  is  of  a  quasi-public  nature.18  And  sub- 
stantially the  same  statement  is  made  in  other  jurisdictions.19 

§  70.  Bridge  Companies.— Although  a  bridge  company  is  a 
private  corporation,  yet,  as  the  bridge,  when  complete,  is  to 
be  used  by  the  public  as  a  common  highway  for  public  con- 
venience and  forms  a  continuous  line  of  travel,  it  is  as  much 
dedicated  to  public  use  as  it  could  have  been  had  it  been  in 
all  respects  public  property  erected  at  public  expense,  and  the 
legislature  may  authorize  it  to  take  private  property  for  its 
use.  These  same  principles  have  been  uniformly  applied  to 
railroads  and  turnpikes.20    Where  the  statute  provides  for  the 

the  trustees  of  that  college  was  a  con-  Rd.  Co.,  26  N.  J.  L.  148,  172,  69  Am. 

tract  within  the  Federal  Constitution  Dec.  595. 

prohibiting  any  law  impairing  the  ob-  18  State  v.  Richcreek,  167  Ind.  217, 

ligation  of  contracts  and  therefore  a  222,  77  N.  E.  1085,  per  Montgomery, 

state    legislative    act    altering    such  J. 

charter  without  consent  of  the  corpo-  "  A  bank  is  an   institution  of  a 

ration  was  unconstitutional  and  void  quasi-public     character.       American 

and  that  under  its  charter  the  college  Nat.  Bk.  v.  Morey,  24  Ky.  L.  Rep. 

was  a  private  and  not  a  public  cor-  658,  660,  69  S.  W.  759,  58  L.  R.  A. 

poration    liable    to    legislative    con-  956,   per  Hobson,  J.;    Patterson  v. 

trol.  Marine  Nat.  Bank,  130  Pa.  419,  433, 

18  Campbell,  Receiver,  v.  Watson,  18  Atl.  632,  17  Am.  St.  Rep.  778,  per 

62  N.  J.  Eq.  396,  406,  50  Atl.  120,  per  Paxson,  C.  J. 

Pitney,  V.  C.  (this  case  was  one  of  an  20  Arnold  v.   Covington  &  Cincin- 

action   by  a  bank  receiver  against  nati  Bridge  Co.,  1  Div.  (62  Ky.)  372. 

directors  for  losses  alleged  to  have  A  "bridge  is  a  part  of  a  road,  and 

been  caused  by  their  negligence.)  an  easement,  like  the  road;  and  the 

17  Tinsman  v.  Belvidere  Delaware  privilege  of  making  the  bridge,  and 

166 


NATURE    OF   VARIOUS   CORPORATIONS  §§   71,  72 

construction  of  toll  bridges  for  " public  use"  and  railroad  toll 
bridges  are  within  the  intent  of  the  enactment,  a  railroad 
bridge  is  a  bridge  for  public  use.21  But  the  right,  privilege,  or 
franchise  of  constructing  and  operating  a  bridge  and  approaches 
as  terminal  facilities  is  held  not  to  confer  an  authority  upon 
the  company  to  act  as  common  carriers  of  goods  or  passengers 
for  compensation.22 

§  71.  Building  and  Loan  Associations. — Building  and  loan 
associations  are  private  associations.23  Although  they  have 
been  considered  "corporate  partnerships  or  quasi-partner- 
ships."  24 

§  72.  Canal  Companies. — A  canal  company,  with  the  power 
of  eminent  domain,  occupying  some  of  the  bed  of  a  public 
stream,  and  carrying  on  a  transportation  business,  whether  as 
an  accommodation  to  one  party  or  to  others,  is  affected  with 
a  public  interest  or  impressed  with  a  public  trust.25    So  a  canal 

taking  tolls  for  the  use  of  the  same,  is  on  Bldg.  Assoc.  §  39];  Albany  Mutual 

a  franchise  in  which  the  public  have  Bldg.  Assoc,  v.  City  of  Laramie,  10 

an  interest;  the  corporation,  as  owner  Wyo.  54,  65,  66,  65  Pac.   1011,  per 

of  the  franchise,  is  liable  to  answer  in  Potter,  C.  J.  [quoting  Thompson  on 

damages  if  it  refuses  to  transport  in-  Bldg.  Assoc.  (2d  ed.)  §  3;  Endlich  on 

dividuals  on  being  paid  or  tendered  Bldg.  Assoc.  (2d  ed.)  §  16];  Cook  v. 

the  usual  fare;  the  law  secured  the  Equitable  Bldg.  &  Loan  Assoc,  104 

tolls  as  a  recompense  for  the  duty  Ga.  814,  821,  30  S.  E.  911. 

imposed    to    provide    and    maintain  2i  See   Towle    v.    American    Bldg. 

facilities  for  accommodating  the  pub-  Loan  &  Investment  Soc,  61  Fed.  446, 

lie."     Covington  Drawbridge  Co.  v.  447,  per  Grosscup,  Dist.   J.;   Union 

Shepherd,  21  How.  (62  U.  S.)  112,  Mut.  Bldg.  &  Loan  Assoc,  v.  Aichele, 

124,  16  L.  ed.  38,  per  Catron,  J.  28  Ind.  App.  69,  73,  61  N.  E.  11,  per 

21  Southern      Illinois    &     Missouri  Comstock,  J. 

Bridge  Co.  v.  Stone,  174  Mo.  1,  27,  63        25  New  York  Cement  Co.  v.  Consol- 

L.  R.  A.  301,  73  S.  W.  453.  idated  Rosendale  Cement  Co.,  76  N. 

22  Kentucky  &  I.  Bridge  Co.  v.  Y.  Supp.  469,  37  Misc.  746  (case  was 
Louisville  &  N.  R.  Co.,  37  Fed.  567,  2  reversed  upon  the  ground  that  the 
L.  R.  A.  289,  2  Inters.  Com.  Rep.  35.  purchaser  of  the  canal  and   "fran- 

23  Washington  Investment  Assoc,  chises"  need  not  maintain  and  oper- 
v.  Stanley,  38  Orcg.  319,  331-333,  63  ate  it  as  a  public  way,  the  sale  and 
Pac.  489,  84  Am.  St.  Rep.  7!).'!,  per  conveyance  having  been  made  under 
Woolverton,  J.  [quoting  Thompson  authority  of  a  statute  which  also  re- 
on  Bldg  Assoc.  (2d  ed.)  §  3;  Endlich  cited  that  it  was  no  longer  useful  for 

1(17 


§   72  NATURE    OF    VARIOUS    CORPORATIONS 

constructed  by  the  State  is  a  public  use,  and  the  power  of  emi- 
nent domain  may  be  exercised  in  subjecting  private  property 
to  its  construction.26  A  canal  company  is  also  held  to  be  a 
private  corporation.27  So  a  New  Jersey  case  holds  that  the 
Delaware  and  Raritan  Canal  Company  was  not  a  public  cor- 
poration and  that  it  was  not  justified  by  its  charter  in  injuring 
the  property  of  individuals,  by  obstructions  of  the  natural 
flow  of  streams  of  water,  although  such  injuries  may  be  remote 
or  consequential.  In  the  opinion  of  the  court  it  is  said:  "In 
the  present  case  whatever  may  have  been  the  objects  of  the 
corporation,  whether  to  erect  a  public  navigable  highway,  or 
to  improve  the  navigation  of  the  Raritan  river,  or  whether  the 
public  have  a  right  to  the  use  and  enjoyment  of  these  improve- 
ments when  made  or  not,  the  company  are  essentially  a  private 
company  and  are  not  the  agents  of  the  State.  Their  works  are 
not  constructed  by  the  requirement  of  the  State,  nor  at  the 
expense  of  the  State,  nor  does  the  stock  belong  to  the  State, 
nor  is  the  State  answerable  for  the  lands  or  materials  used  in 
the  construction  of  these  works,  or  responsible  for  the  debts 
of  the  company,  or  for  injuries  committed  by  them  in  the 
execution  of  their  work.  The  State  could  not  compel  the  com- 
pany to  construct  this  canal  or  improve  the  navigation  of  the 
river;  it  has  permitted  them  to  do  so  at  their  own  request.  The 
company  might  have  abandoned  the  work  whenever  they 
saw  fit,  they  may  now  abandon  it  without  responsibility  to 
the  State.  In  all  they  have  done,  they  have  sought  their  own 
interest  and  if  thereby  they  have  incidentally  promoted  that 
of  the  public,  it  cannot  reasonably  be  supposed  it  was  from  a 
liberality  beyond  that  of  their  fellow  citizens  or  for  the  sake 

the  purpose  originally  intended,  78  roads  and  canals,  and  plank  road 
N.  Y.  Supp.  531;  but  held  in  178  N.  companies.  Douglass  v.  Boonsbor- 
Y.  167,  that  part  thereof  purchased  ough  Turnpike  Road  Co.,  22  Md.  219, 
and  used  by  manufacturing  corpo-  85  Am.  Dec.  647. 
ration  for  transportation  purposes  2e  Cooper  v.  Williams,  4  Ham.  (4 
was  still  a  public  highway  and  sub-  Ohio)  253,  287,  22  Am.  Dec.  745. 
ject  to  restrictions  imposed  by  canal  27  Hooker  v.  New  Haven  &  North- 
company  by  its  charter).  ampton  Co.,  15  Conn.  313,  36  Am. 
Distinction    exists    between     rail-  Dec.  477. 

168 


NATURE   OF  VARIOUS   CORPORATIONS  §§   73,  74 

of  the  public.  The  corporation  itself,  the  property  of  the  cor- 
poration, the  object  of  the  corporation,  are  essentially  private, 
subject  only  to  public  use,  under  their  own  restrictions,  and 
from  which  use,  the  company  are  to  derive  their  profits.  The 
whole  scope  of  their  charter  indicates  clearly  that  the  legisla- 
ture did  not  intend  to  interfere  with  private  and  vested  rights, 
without  providing  a  recompense  to  be  paid  by  the  company 
and  not  by  the  State."  28 

§  73.  Colleges — State  University. — Under  its  charter,  Dart- 
mouth College  was  a  private  and  not  a  public  corporation; 
that  a  corporation  is  established  for  purposes  of  general  char- 
ity, or  for  education  generally,  does  not,  per  se,  make  it  a  pub- 
lic corporation,  liable  to  the  control  of  the  legislature.29  A 
state  university  formed  for  educational  purposes,  founded  by 
the  State,  endowed  by  the  United  States  by  a  grant  to  the 
State;  all  its  property  being  property  of  the  State;  subject  to 
the  laws  of  the  State  as  a  state  institution;  declared  to  be  a 
public  trust  by  the  state  constitution,  which  also  provides  for 
its  perpetual  continuance,  is  a  public  corporation.30 

§  74.  Common  Carriers. — Formerly  anyone  who  chose  to 
engage  in  the  business  of  a  common  carrier  might  do  so,  and 
such  employment  was  conducted  almost  exclusively  by  private 
individuals  for  private  gain  and  no  especial  protection  or  bene- 
fit was  given  by  the  State,  but  it  has  become  a  public  employ- 
ment in  the  sense  that  it  is  affected  with  a  public  interest  and 
is  subject  to  public  regulation  because  of  the  obligations  rest- 
ing upon  it  arising  from  the  character  of  the  business.31  It  not 
only  exercises  a  public  employment  but  it  has  been  called  a 
public  institution.    The  duties  and  liabilities  are  those  imposed 

28  Ten  Eyck  v.  Delaware  &  Raritan    Woodward,  1  N.  H.  111.     See  §  93, 
Canal  Co.,  18  N.  J.  L.  200,  203,  per    herein. 
Nevins,  J.  30  Estate  of  Royer,  Matter  of,  1 123 

"Dartmouth  College  v.  Wood-  Cal.  614,  621,  44  L.  R.  A.  364,  56 
ward,  4  Wheat.  (17  U.  S.)  518,  4  L.    Pac.  461. 

ed.  629,  rev'g  Dartmouth  College    v.        31  People  v.  Budd,  117  N.  Y.  1,  26 

N.  Y.  St.  R.  533,  22  N.  E.  670,  682. 

169 


§    74  NATURE   OF   VARIOUS   CORPORATIONS 

by  public  law,  and  in  this  respect  a  common  carrier  differs  from 
the  private.  The  former  owes  an  equal  duty  to  all,  and  it 
cannot  be  discharged  if  allowed  to  make  unequal  preferences 
and  thereby  prevent  or  impair  the  enjoyment  of  the  common 
right.32  It  is  asserted,  however,  that  the  employment  of  com- 
mon carriers  is  quasi-public,  upon  the  ground  that  the  public 
have  an  interest  in  the  faithful  performance  of  their  duties  and 
that  this  applies  to  common  carriers  classified  as  carriers  of 
goods  and  carriers  of  passengers.33  Under  the  Public  Service 
Commissions  Law  of  New  York,34  "The  term  'common  carrier,' 
when  used  in  this  act,  includes  all  railroad  corporations, 
street  railroad  corporations,  express  companies,  car  companies, 
sleeping-car  companies,  freight  companies,  freight-line  com- 
panies and  all  persons  and  association  of  persons,  whether  in- 
corporated or  not,  operating  such  agencies  for  public  use  in 
the  conveyance  of  persons  or  property  within  this  State."  35 
And  such  carriers  cannot  unreasonably  or  unduly  discriminate, 
and  are  subject  to  reasonable  and  just  regulation  as  to  rates 
and  to  prevent  discrimination,  and  the  power  to  so  regulate 
may  be  exercised  by  the  legislature  itself  or  delegated  to  and 
vested  in  railroad  commissioners.36  The  nature  of  common 
carriers  will,  however,  more  fully  appear  under  those  sections 
herein  which  treat  of  the  different  corporations  whose  business 
is  that  of  common  carriers. 

32  Messenger  v.  Pennsylvania  Rd.  elevation,  transfer  in  transit,  venti- 
Co.,  37  N.  J.  L.  531,  533,  535,  18  Am.  lation,  refrigeration,  icing,  storage 
Rep.  754.  and    handling    of    the    property  or 

33  Thompson-Houston  Electric  Co.  freight  transported.  Public  Service 
v.  Simon,  20  Oreg.  60,  25  Pac.  147,  10  Commission  Law  of  N.  Y.,  Laws 
L.  R.  A.  251,  23  Am.  St.  Rep.  86  (an  1907,  p.  892,  chap.  429,  art.  1, 
action  to  condemn  a  right  of  way  for  §  2. 

street  and  suburban  railway  for  pas-        36  Interstate    Commerce    Commis- 

sengers).  sion  v.  Chicago  Great  Western  Ry. 

34  Laws  1907,  p.  891,  chap.  429,  Co.,  141  Fed.  1003;  Southern  Express 
art.  1,  §  2.  See  Public  Utilities  Act,  Co.  v.  R.  M.  Rose  Co.,  124  Ga.  581,  53 
Laws  Wis.,  1907,  chap.  499.  S.   E.   185;  State  v.  Atlantic  Coast 

35  The  term  "transportation  of  Line  R.  Co.  (Fla.),  40  So.  875; 
property  or  freight,"  when  used  in  Chicago,  I.  &  L.  Ry.  Co.  v.  Rd.  Com- 
this  act,  includes  any  service  in  con-  mission  of  Indiana  (Ind.  App.),  78  N. 
nection  with  the  receiving,  delivery,  E.  338. 

170 


NATURE   OF   VARIOUS   CORPORATIONS  §§   75,  76 

§  75.  Drainage  Companies  —  Drainage  —  Constitutional 
Law— Police  Power. — A  drainage  company  is  a  private  cor- 
poration.37 Under  the  laws  of  Illinois  the  draining  of  bodies 
of  land  so  as  to  make  them  fit  for  human  habitation  and  cul- 
tivation, is  a  public  purpose,  to  accomplish  which  the  State 
may  by  appropriate  agencies  exert  the  general  powers  it 
possesses  for  the  common  good,  and  §  40|  of  the  Farm  Drain- 
age Act  of  that  State  was  a  proper  exercise  of  the  police  power 
of  the  State.  The  rights  of  a  railroad  company  to  a  bridge  over 
a  natural  water  course  crossing  its  right  of  way,  acquired  un- 
der its  general  corporate  power  of  Illinois  are  not  superior 
and  paramount  to  the  right  of  the  public  to  use  that  water 
course  for  the  purpose  of  draining  lands  in  its  vicinity  in  ac- 
cordance with  plans  adopted  by  a  drainage  commission  law- 
fully constituted  under  the  Farm  Drainage  Act.38 

§  76.  Electric   Light,   Heat  and  Power  Companies. — An 

electric  light  company  is  a  corporation  or  association  organ- 
ized and  engaged  in  the  business  of  supplying  electricity  for 
lighting  purposes,  and  it  may  by  statute  include  supplying 
electricity  for  heat  and  power  purposes.39  So  under  the  Pub- 
lic Service  Commissions  Law  of  New  York,40  the  term  "elec- 
trical corporation,"  when  used  in  that  act,  includes  every 
corporation,  company,  association,  joint-stock  association, 
partnership  and  person,  their  lessees,  trustees  or  receivers  ap- 
pointed by  any  court  whatsoever  (other  than  a  railroad  or 
street  corporation  generating  electricity  for  its  own  use  ex- 
clusively), owning,  operating,  managing  or  controlling  any 
plant  or  property  for  generating  and  distributing,  or  generat- 
ing or  selling  for  distribution,  or  distributing  of  electric  current 
for  such  purposes.  In  New  Hampshire,  under  a  statute  pro- 
viding that  all  electric  light  companies  serving  parties  for  hire 

"Howard  v.  St.  Clair  &  Monroe  561,  50  L.  ed.  596,  26  Sup.  Ct,  341, 

Levy  &  Drainage  Co.,   51   111.    130.  aff'g  212  111.  103,  72  N.  E.  219. 

See  §  96,  herein,   "Reclamation   Dis-  3B  Joyce  on  Electric  Law  (2d  ed.), 

tricts. "  §  7.    See  also  id.,  §§  7a,  7b. 

"Chicago,   Burlington    &  Quincy  40  Laws   1907,   p.   892,   chap.   429, 

Ry.  Co.  v.  Drainage  Com'rs,  200  U  S.  art,  1,  §  2. 

171 


§   70  NATURE   OF   VARIOUS   CORPORATIONS 

shall  be  deemed  to  be  public  and  shall  reasonably  accommodate 
persons  wishing  to  enjoy  their  facilities  without  discrimina- 
tion and  at  reasonable  rates,  electric  light  companies  are  evi- 
dently deemed  to  stand  on  the  basis  of  quasi-public  corpora- 
tions; although  "a  natural  person  may  engage  in  the  business 
of  furnishing  electric  lights  for  hire,  and  acquire  all  the  rights 
and  privileges  and  be  subject  to  all  the  duties  and  obligations 
pertaining  to  the  business  as  provided  in  the  statute."  41  An 
electric  light  is  a  thing  of  general  utility  and  in  its  nature  an 
article  of  commerce.42  But  an  electric  lighting  system  main- 
tained for  the  purpose  of  lighting  city  streets,  is  held  to  be  a 
public  use.43  'And  where  a  municipality  prior  to  a  certain 
date  had  no  power  to  grant  the  use  of  its  streets  for  electric 
light  poles,  companies  erecting  and  owning  such  poles  after 
that  period  devoted  them  to  public  uses.44  Again,  an  electric 
light  company,  owning  an  electric  plant  and  engaged  in  fur- 
nishing light  for  the  streets  and  inhabitants  of  a  city  or  village 
has  so  far  devoted  its  property  to  a  public  use,  a  use  in  which 
the  public  has  an  interest,  that  it  is  bound  to  furnish  light, 
within  such  city  or  village,  impartially  to  all  applicants  at  a 
reasonable  price.45  Where  a  dam  is  erected,  and  land  is 
flooded  thereby,  in  order  to  supply  electric  power  to  the  pub- 
lic generally,  and  especially  to  mines  and  smelters,  and  for 
irrigation  also,  it  constitutes  a  public  use  justifying  the  ex- 
ercise of  the  right  of  eminent  domain.46    In  a  Wisconsin  case 

41  American  Loan  &  Trust  Co.  v.  45  Cincinnati,  H.  &  D.  R.  Co.  v. 
General  Electric  Co.,  71  N.  H.  192,  Bowling  Green,  57  Ohio  St.  336,  41 
51  Atl.  660,  8  Am.  Elec.  Cas.  117,  118,    L.  R.  A.  422,  49  N.  E.  121. 

121,  122,  124    (a    case    or    right  to  46  Helena  Power  Transmission  Co. 

mortgage.  v.  Spratt,  35  Mont.  108,  88  Pac.  773. 

42  Hull  Electric  Light  Co.  v.  Ot-  See  also  Story  v.  Indiana  Hydraulic 
tawa  Elect.  Light  Co.,  Rap.  Jud.  Power  Co.  (Ind.),  76  N.  E.  1057;  East 
Quebec,  14  C.  S.  124.  Canada     Creek     Electric     Light     & 

43  Tuttle  v.  Brush  Elec.  Ilium.  Co.,  Power  Co.,  In  re,  99  N.  Y.  Supp. 
50  N.  Y.  Super.  Ct.  464.  Compare  109,  49  Misc.  565;  Niagara,  L.  &  O. 
Joyce  on  Electric  Law  (2d  ed.),  §§  Power  Co.,  In  re.,  97  N.  Y.  Supp. 
276-278c.  853,    858,    111    App.  Div.   686,   112 

"Toledo  Electric  St.  Ry.  Co.  v.  App.  Div.  901.  Examine  State  v.  Su- 
Western  Light  &  Power  Co.,  4  Ohio  perior  Court  of  Thurston  County 
C.  D.  43.  (Wash.),  85  Pac.  666.     But  see  Joyce 

172 


NATURE   OF   VARIOUS   CORPORATIONS  §§  77,  78 

the  business  of  supplying  electricity  is  declared  to  be  a  public 
one  in  which  the  community  has  an  interest  different  from 
what  it  has  in  private  enterprises,  such  as  manufacturing,  etc.47 
And  the  enterprise  is  a  public  one  where  water  power  is  used 
to  generate  electricity  which  is  to  be  sold  and  distributed  on 
equal  terms  to  the  public  generally  and  is  subject  to  control 
by  the  government.  In  such  a  case  the  property  is  also  held 
to  be  devoted  to  a  public  use.48 

§  77.  Electric  Light,  Heat  and  Power  Companies — When 
a  "  Manufacturing  "  Company.— In  Alabama  an  electric  light 
company  is  a  manufacturing  corporation,  within  a  statute 
authorizing  consolidation.49  In  Colorado  the  operation  of  an 
electric  light  plant  is  manufacturing  and  gives  a  right  to  con- 
demn lands  for  the  purpose  of  carrying  water  for  power  to 
operate  such  plant.50  In  New  York  a  corporation  engaged  in 
producing  electricity  and  supplying  the  same  to  customers 
was  a  manufacturing  corporation  and  exempt  from  taxation 
until  the  statute  of  1889,51  which  took  electric  light  com- 
panies out  of  the  exemption  clause.52 

§  78.  Electric  Light,  Heat  and  Power  Companies — When 
not  a  "  Manufacturing  "  Company.— In  Illinois  an  electric 
light  company  is  not  a  corporation  for  "purely  manufacturing 

on   Electric   Law   (2   ed.),    §§  278a,  "  People   ex   rel.    Brush    Electric 

278c,  278d.  Mfg.  Co.,   129  N.  Y.  543,  551,  553, 

47  Madison,  City  of,  v.  Madison  Gas  14  L.  R.  A.  708,  29  N.  E.  808,  case  re- 
&  Elec.  Co.,  129  Wis.  249,  263,  108  verses  15  N.  Y.  Supp.  711,  61  Hun, 
N.  W.  65,  per  Siebecker,  J.  53.    See  also  People,  Edison  Elec.  L. 

48  Minnesota  Canal  &  Power  Co.  v.  Co.  v.  Campbell,  88  Hun  (N.  Y.),  527, 
Koochicing  Co.,  97  Minn.  429,  107  N.  68  N.  Y.  St.  R.  746,  34  N.  Y.  Supp. 
W.  405.  711,  6  Am.  Elec.  Cas.  653;  People, 

48  Beggs    v.  Edison    Electric    Illu-  Western  Elec.  Co.  v.  Campbell,  145 

minating  Co.,  96  Ala.  295,  38  Am.  St.  N.  Y.  587,  65  N.  Y.  St.  R.  526,  40  N. 

Rep.  94,  11  So.  381.  E.  239,  aff'g  80  Hun,  466,  30  N.  Y. 

60Lamborn  v.  Bell,  18  Colo.  346,  4  Supp.  472,  People,  Edison  Elec.  II- 

Am.  Elec.  Cas.  573,  32  Pac.  989.  lum.  Co.  v.  Wemple,  129  N.  Y.  664, 

51  Chap.  353,  Laws  1889.    See  Laws  42  N.  Y.  St.  R.  280,  29  N.  E.  812, 

1898,  chap.  908,  §  183;  4  Cumming  &  4  Am.  Elec.  Cas.  563,  rev'g  61  Hun, 

Gilbert's  (Supplement)  Gen '1  Laws  &  53,39  N.  Y.  St.  R.  605,    15   N.    Y. 

Gen'l  Stat.  (N.  Y.)  p.  1526.  Supp.  711. 

17:; 


§   79  NATURE   OF   VARIOUS   CORPORATIONS 

purposes."  53  In  Maryland  an  electric  light  and  power  com- 
pany is  not  a  manufacturing  industry.54  In  Pennsylvania  a 
corporation  engaged  in  producing  electricity  and  selling  it  to 
customers  for  the  generation  of  light,  heat  and  power  is  also 
held  not  to  be  a  manufacturing  company  in  the  sense  that  it  is 
within  a  statutory  exemption  from  taxation  on  its  capital 
stock.55 

§  79.  Express  Companies. — An  unincorporated  express  com- 
pany is  not  a  corporation  over  which  the  State  may  exercise 
visitatorial  powers,  but  is  only  a  partnership  carrying  on  a  com- 
mon carrier  business.56  But  an  express  company  does  not 
carry  on  a  purely  private  business  where  it  transports  between 
a  city  and  places  nearby,  all  kinds  of  portable  freight  and  ex- 
press matter;  and  it  may,  under  authority  of  the  city,  facili- 
tate such  business  by  the  use  of  a  connecting  switch  between 
its  warehouse  and  the  lines  of  a  street  railway,  and  such  ap- 
propriation of  the  street  constitutes  a  legitimate  public  use.57 
A  state  statute  which  defines  an  express  company  to  be  per- 
sons and  corporations  who  carry  on  the  business  of  transpor- 
tation on  contracts  for  hire  with  railroad  or  steamboat  com- 
panies, does  not  invidiously  discriminate  against  the  express 
companies  defined  by  it,  and  in  favor  of  other  companies  or 
persons  carrying  express  matter  on  other  conditions,  or  under 
different  circumstances.58  The  following  is  of  importance 
here: — "An  express  company  is  a  species  of  common  carrier 

53  Evanston  Elec.  Ilium.  Co.  v.  Elec.  L.  Co.,  145  Pa.  131,  22  Atl.  841, 
Koehersperger,  175  111.  26,  51  N.  E.  845.  Compare  Commonwealth  v. 
519.  Keystone  Elec.  Light,  Heat  &  Power 

54  Frederick  Elec.  Light  &  Power  Co.,  193  Pa.  245,  44  Atl.  326. 

Co.  v.  Frederick  City,  84  Md.  599,  56  State  v.  United  States  Express 

36  Atl.  362,  30  L.  R.  A.  130,  6  Am.  Co.,  81  Minn.  87,  83  Am.  St.  Rep.  366, 

Elec.  Cas.  644.  50  L.  R.  A.  667. 

55  Commonwealth  v.  Northern  Elec-  "  Dulaney  v.  United  States  Rys.  & 
trie  Light  &  Power  Co.,  145  Pa.  Electric  Co.,  104  Md.  423,  65  Atl. 
105,  22  Atl.  839,  14  L.  R.  A.  107.    Ex-  45. 

amine  Southern  Elec.  Light  &  Power  58  Pacific  Express  Co.  v.  Seibert, 
Co.  v.  Philadelphia,  191  Pa.  170,  43  142  U.  S.  339,  12  Sup.  Ct.  250,  35  L. 
Atl.  123;    Commonwealth  v.  Edison    ed.  1035. 

174 


NATURE   OF   VARIOUS   CORPORATIONS  §   80 

to  which  have  been  accorded  privileges,  and  which  from  the 
nature  of  its  business  incurs  great  responsibility.  *  *  * 
They  are  essentially  different  from  railroad  companies,  not 
only  in  the  fact  that  the  latter  carry  more  bulky  freight,  but 
they  collect  money  and  do  other  things,  that  would  be  held 
ultra  vires  if  attempted  by  a  railroad  company.  It  has  been 
held  that  a  railroad  company  could  not  refuse  to  carry  for 
an  express,  according  to  the  peculiar  methods  of  their 
business.  *  *  *  If  a  railroad  company  engage  in  these 
branches  of  the  express  business,  authorized  by  their  charters, 
they  must  not  deny  to  express  companies  equal  privileges 
with  themselves  as  to  that  business.  *  *  *  It  is  the  duty 
of  the  express  companies  to  receive  all  goods  offered  for  trans- 
portation, upon  the  payment  or  tender  of  their  charges,  but 
prepayment  will  be  considered  waived  if  not  demanded.  They 
are  required,  too,  to  have  adequate  facilities  within  a  reasonable 
time.  *  *  *  A  high  degree  of  care  is  required  of  an  ex- 
press company  in  the  delivery  of  goods."  59 

§80.  Ferries — Ferry  Company. — A  ferry  franchise  is  de- 
clared to  be  partly  of  a  public  and  partly  of  a  private  nature,60 
or  a  quasi-public  use.61  If  statutory  restrictions  are  imposed, 
a  ferry  must  conform  to  such  requirements,  and  the  owner  of 
the  ferry  privilege  is  obligated  to  serve  the  public  at  all  reason- 
able times.62     The  primary  object  in  establishing  roads  and 

59  Alsop  v.  Southern  Express  Co.,  18  Am.  Rep.  754;  Express  Cos.  v. 

104  N.  C.  278,  288,  289,  10  S.  E.  297,  Railroad  Cos.  (Adams  Express  Co.  v. 

6  L.  R.  A.  271,  per  Avery,  J.,  citing  to  Railroad  Cos.)  (U.  S.  C.  C.  8th  Civ.), 

first  point  Witbreck  v.  Holland,  45  3  Am.  &  Eng.  Rd.  Cas.  591;  to  fifth 

N.  Y.  13;  Am.  &  Eng.  Cyc.  of  Law,  point,  New  Jersey  Steam  Nav.  Co.  v. 

781-784;  5  Myers  Fed.  Dec.  Carriers,  Merchants'  Bank,  6  How.  (47  U.  S.) 

§  511;  to  second  point,  5  Myers  Fed.  344;  to  sixth  point,  Marshall  v.  Amer- 

Dec.  Carriers,  §  1509;  to  third  point,  ican  Express  Co.,  7  Wis.  1;  Witbreck 

5  Myers  Fed.  Dec.  §§  1508,  1519;  to  v.  Holland,  45  N.  Y.  13. 
fourth    point,    5    Myers    Fed.    Dec.        60  Benson  v.  Mayor,  etc.,  of  N.  Y., 

Carriers,    §§  1508,   1515-1521;  Gom-  10  Barb.  (N.  Y)  223. 
bios  v.   Philadelphia,  etc.,  9  Phila.        81  Los  Angeles  Terminal  Land  Co. 

411;  Texas  Express  Co.  v.  Texas,  6  v.  Southern  Pac.  Rd.  Co.,  136  Cal.  36, 

Fed.  426;  Messenger  v.  Pennsylvania  68  Pac.  308. 
Rd.  Co.,  37  N.  J.  L.  (8  Vroom.)  531,        "  Warner  v.  Ford  Lumber  &  Mfg. 

175 


§   80  NATURE   OF   VARIOUS   CORPORATIONS 

licensing  ferries  for  transportation  of  persons  and  property, 
is  to  secure  the  public  accommodation.  For  the  attainment 
of  this  end,  but  as  subordinate  to  it,  when  a  ferry  franchise  is 
granted,  the  right  to  take  lawful  tolls  is  conferred  as  an  equiva- 
lent for  the  obligations  to  the  public.  Although  the  taking 
of  such  tolls  is  privati  juris  and  incident  to  the  franchise,  a 
ferry  is  publici  juris,  and  cannot  be  created  without  a  fran- 
chise, and  is  a  thing  of  public  interest  and  use.  A  ferry  also 
forms  a  part  of  a  public  highway,  and  as  such  it  is  a  thing  of 
public  interest.63 

Co.,  29  Ky.  L.  Rep.  527,  93  S.  W.  purposes  of  this  prerogative,  it  will 

650.  be  seen  that  it  was  vested  in  the  king 

63  Montgomery  v.  Multnomah  Ry.  as  a  means  by  which  a  business,  in 

Co.,  11  Oreg.  344,  347,  348,  3  Pac.  which   the   whole    community   were 

435,  quoting    Attorney    General    v.  interested,   could  be  regulated.     In 

Boston,    123  Mass.   478.  other  words,  it  was  simply  one  mode 

"Therefore,    although    the    public  of  exercising  a  prerogative  of  gov- 

convenience  is  the  occasion  of  grant-  eminent,  that  is  to  say,  through  the 

ing  franchises   of   this   nature,   and,  sovereign  instead  of  through  parlia- 

for  example,  the  ferry  established  on  ment,  in  a  matter  of  public  concern, 

the  road  chartered  is  publici  juris,  These  and  similar  prerogatives  were 

yet  the  property  is  private,  and  con-  vested  in  the  king  for  public  purposes, 

sequently   an  injury   to   it   may  be  and  not  for  his  private  advantage  or 

the  subject  of  an  action,  for  no  per-  emolument."     People  v.  Budd,  117 

son  could  be  expected  to  serve  the  N.  Y.  1,  17,  18,  26  N.  Y.  St.  R.  533, 

public  by  bestowing  his  time,  labor  22  N.  E.  670,  682,  per  Andrews,  J. 

and  money  in  establishing  a  ferry  or  "  A  ferry  is  in  some  sense  an  exten- 

erecting  a  bridge,  if  its  value  could  sion  of  a  public  road."    Burlington  & 

be    immediately    destroyed    by    the  Henderson    County    Ferry    Co.    v. 

caprice  or  malice  of  private  persons,  Davis,  48  Iowa,    133,   137,  30  Am. 

in  adopting  means  of  drawing  away  Rep.  390,  per  Adams,  J.  (a  case  of 

the  custom  to  some  establishment  of  power  to  grant  ferry  license), 

their  own.     It  is,  then,  truly  the  in-  "Though  a  ferry  be  in  its  nature 

terest  of  the  public,  as  well  as  an  part  of  a  highway,  yet  it  is  in  many 

instance  of  the  private  justice  due  to  respects    distinguishable;    and    from 

an  individual,  that  the  public  grant  the  earliest  times  of  the  colonial  gov- 

of  franchises  of  this  kind  should  be  ernment,  in  Massachusetts,  the  mode 

protected  by  being  held  to  be  exclu-  of  establishing  ferries,   and  that  of 

sive  in  the  grantee,  unless  legally  and  laying  out  highways,  have  been  kept 

duly  ordered  otherwise  by  the  public  distinct."    Fay,  Petitioner,  15  Pick. 

authorities."     Norris  v.  Farmers'  &  (32  Mass.)  243,  249,  per  Shaw,  C.  J. 

Teamsters'  Co.,  6  Cal.  590,  595,  65  A  ferry  forms  part  of,  and  can  only 

Am.  Dec.  535.  exist    in    connection   with,    a   public 

"  When  we  recur  to  the  origin  and  highway,  or  as  a  connecting  link  be- 

176 


NATURE   OF  VARIOUS   CORPORATIONS  §§   81,  82 

§81.  Fire  Engine  Company. — A  fire  engine  company  is  a 
quasi-municipal  corporation.64  And  if  a  fire  company  is  in- 
corporated for  the  purpose  of  rendering  public  service,  a  mem- 
ber thereof,  even  though  such  company  is  not  connected 
officially  with  the  municipality,  is  held  to  be  within  the  pro- 
visions of  the  Civil  Service  Law  prohibiting  removal,  except  for 
cause  and  upon  hearing,  of  a  person  under  municipal  employ- 
ment or  holding  a  municipal  position  and  who  has  served  in 
the  volunteer  fire  department  for  the  specified  period  of 
time.65 

§  82.  Gas  Companies — Public  Service  Corporation.— The 

manufacture  and  distribution  of  illuminating  gas,  by  means 
of  pipes  or  conduits  placed,  under  legislative  authority,  in  the 
streets  of  a  town  or  city,  is  a  business  of  a  public  character.66 
"The  manufacture  of  gas,  and  its  distribution  for  public  and 
private  use  by  means  of  pipes  laid,  under  legislative  authority, 
in  the  streets  and  ways  of  a  city,  is  not  an  ordinary  business  in 
which  everyone  may  engage,  but  is  a  franchise  belonging  to 
the  government,  to  be  granted,  for  the  accomplishment  of 
public  objects,  to  whomsoever,  and  upon  what  terms  it  pleases. 
It  is  a  business  of  a  public  nature,  and  meets  a  public  necessity 
for  which  the  State  may  make  provision.  It  is  one  which,  so 
far  from  affecting  the  public  injuriously,  has  become  one  of 
the  most  important  agencies  of  civilization,  for  the  promotion 
of  public  convenience  and  the  public  safety."  67    So,  in  a  Wis- 

tween  places  in  which  the  public  has  Fuel   Co.,    21    Pa.   Co.   Ct.    R.   503, 

rights,  on  paying  the  tolls  prescribed  508. 

by  public  authority.  Hackett  v.  Gas  company  as  public  corpora- 
Wilson,  12  Oreg.  25,  6  Pac.  652.  tion.       See    Sanderson    v.   Commis- 

84  Cole  v.  Greenwich  Fire  Engine  sioners,  3  Pa.  Com.  PI.  1,6. 

Co.,  12  R.  I.  202.  Gas  company  not  a  public  corpo- 

85  People  v.  Folks,  85  N.  Y.  Supp.    ration.      See    New  York  Central    & 
1100,  89  App.  Div.   171.  Hudson  River  Rd.  Co.,  In  re,  v.  Met- 

88  New  Orleans  Gas  Co.  v.  Louisi-  ropolitan  Gas  Light  Co.,  63  N.  Y.  326. 

ana  Light  Co.,  115  U.  S.  650,  658,  29  Gas  and  light  companies  perform 

L.  ed.  516,  6  Sup.  Ct.  252,  per  Har-  quasi-public  duties.    Commonwealth 

Ian,  J.  v.  Northern  Light  &  Power  Co.,  145 

Gas  company  is  somewhat  public  I'm.  105,  22  Atl.  839,  11  L.  It.  A.  107. 

in  its  nature-.     Hagan  v.  Fayette  Gas  "7  New  Orleans  Gas  <'<>.  v.  Louisi- 

12  177 


§   82  NATURE   OF  VARIOUS   CORPORATIONS 

consin  case,  it  is  declared  that  the  business  of  supplying  gas 
and  electricity,  to  meet  the  demands  of  the  inhabitants  of  a 
community,  under  grant  of  the  State  or  of  a  municipal  corpo- 
ration, is  of  a  public  nature.  It  is,  in  character,  a  public  busi- 
ness and  like  that  of  common  carriers,  warehousemen  and 
other  enterprises  in  which  the  community  has  an  interest 
different  from  what  it  has  in  private  enterprises  devoted  to 
manufacturing  and  merchandising  the  common  articles  of 
trade.68  So  the  legislative  grant  of  an  exclusive  right  to  supply 
gas  to  a  municipality  and  its  inhabitants,  by  means  of  pipes 
and  mains  laid  through  the  public  streets,  and  upon  condition 
of  the  performance  of  the  service  by  the  grantee,  is  a  grant  of 

ana  Light  Co.,  115  U.  S.  650,  669,  29  Gas  Co.,  6  Wisconsin,  539;  Chicago 

L.  ed.  516,  6  Sup.  Ct.  252,  per  Har-  Gas  Light   &  Coke  Co.  v.   People's 

Ian,  J.  Gas  Light  &  Coke  Co.,  121    Illinois, 

68  Madison,  City  of,  v.  Madison  Gas  530;  St.  Louis  v.  St.  Louis  Gas  Light 

&  Electric  Co.,  129  Wis.  249,  263,  108  Co.,  70  Missouri,  69.     Hence,  while  it 

N.   W.   65,  per  Siebecker,  J.,   citing  is  justly  urged  that  those  rules  which 

Gibbs  v.  Consolidated  Gas  Co.,  130  say  that  a  given  contract  is  against 

U.  S.  396,  32  L.  ed.  979,  9  Sup.  Ct.  public   policy,   should   not    be   arbi- 

553;  Louisville  Gas  Co.  v.  Citizens'  trarily   extended   so   as   to   interfere 

Gas  Co.,  115  U.  S.  683,  29  L.  ed.  510,  with  the  freedom  of  contract,  Print- 

6  Sup.  Ct.  265;  Chicago  Gas  Light  &  ing,  etc.,  Registering  Co.  v.  Sampson, 

Coke  Co.  v.  People's  Gas  Light  &  Coke  L.  R.  19  Eq.  462,  yet  in  the  instance 

Co.,  121  III.  530,  13  N.  E.  169;  St.  of  business  of  such  character  that  it 

Louis  v.  St.  Louis  Gas  Co.,  70  Mo.  69;  presumably  cannot  be  restrained  to 

Shepard  v.  Milwaukee  Gas  Light  Co.,  any  extent  whatever  without  prej- 

6  Wis.  539,  quoting  also  to  same  ef-  udice  to  the  public  interest,  courts 

feet  New  Orleans  Gas  Co.  v.  Louisi-  decline  to  enforce  or  sustain  contracts 

ana  Light  Co.,  115  U.  S.  650,  6  Sup.  imposing    such    restraint,    however 

Ct.  265,  29  L.  ed.  516.  partial,  because  in  contravention  of 

"  The  supplying  of  illuminating  gas  public  policy.    This  subject  is  much 

is  a  business-  of  a  public  nature  to  considered,  and  the  authorities  cited 

meet  a  public  necessity.     It  is  not  a  in  West  Virginia  Transportation  Co. 

business  like  that  of  an  ordinary  cor-  v.  Ohio  River  Pipe  Line  Co.,  22  W. 

poration  engaged  in  the  manufacture  Va.   600;   Chicago,  etc.,   Gas  Co.   v. 

of  articles  that  may  be  furnished  by  People's  Gas  Co.,   121   Illinois,   530; 

individual  effort.     New  Orleans  Gas  Western    Union    Telegraph    Co.    v. 

Co.  v.  Louisiana  Light  Co.,  115  U.  S.  American  Union  Telegraph  Co.,  65 

650,  29  L.  ed.  516,  6  Sup.  Ct.  252;  Georgia,    160."      Gibbs    v.    Consol- 

Louisville  Gas  Co.  v.  Citizens'  Gas  idated  Gas  Co.  of  Baltimore,  130  U. 

Co.,  115  U.  S.  683,  29  L.  ed.  510,  6  S.  408,  409,  32  L.  ed.  979,  9  Sup.  Ct. 

Sup.  Ct.  265;  Shepard  v.  Milwaukee  553,  per  Mr.  Chief  Justice  Fuller. 

178 


NATURE   OF   VARIOUS   CORPORATIONS  §   83 

a  franchise  vested  in  the  State,  in  consideration  of  the  per- 
formance of  a  public  service,  and  after  performance  by  the 
grantee,  is  a  contract  protected  by  the  Constitution  of  the 
United  States  against  state  legislation  to  impair  it.69  Again,  a 
gas  company  as  a  public  service  corporation  may  fix  a  rate  less 
than  the  maximum  rate  specified  in  a  statute  as  that  to  be 
charged,  and  in  such  case  the  court  will  not,  it  is  held,  have 
power  to  determine  that  the  company's  charge  is  unreasonably 
high.70  Under  the  Public  Service  Commissions  Law  of  New 
York,71  the  term  "gas  corporation,"  when  used  in  that  act, 
includes  every  corporation,  company,  association,  joint-stock 
association,  partnership  and  person,  their  lessees,  trustees  or 
receivers  appointed  by  any  court  whatsoever,  owning,  operat- 
ing, managing  or  controlling  any  plant  or  property  for  manu- 
facturing or  distributing  and  selling  for  distribution  or  dis- 
tributing illuminating  gas  (natural  or  manufactured)  for  light, 
heat  or  power. 

§  83.  Gas — Natural  Gas  Companies. — A  natural  gas  com- 
pany is  a  public  corporation  when  organized  under  a  statute, 
providing  for  the  incorporation  and  regulation  of  such  com- 
panies, and  also  that  the  transportation  and  supply  of  natural 
gas  for  public  consumption  shall  be  a  public  use,  and  further 
granting  the  right  of  eminent  domain  and  all  other  powers 
and  privileges  necessary  for  the  prosecution  of  the  business  for 
which  such  companies  are  incorporated.72  Such  a  company  is 
also  called  a  quasi-public  corporation,  which  cannot  discrimi- 
nate by  charging  more  for  gas  for  lighting  than  for  heating, 
where  it  is  incorporated  for  the  purpose  of  furnishing  natural 

w  Louisville   Gas  Co.   v.   Citizens'  olis,  City  of,  v.  Consumers'  Gas  Trust 

Gas  Co.,  115  U.  S.  683,  29  L.  ed.  510,  Co.,  144  Fed.  640,  75  C.  C.  A.  442. 
6  Sup.  Ct.  265.  "  Laws   1907,  p.   892,   chap.   429, 

70  Brooklyn  Union  Gas  Co.  v.  City  art.  1,  §  2. 
of  New  York,  100  N.  Y.  Supp.  625,        "  St.     Mary's    Gas    Co.     v.     Elk 
115  App.  Div.  69,  aff'd  81  N.  E.  141.  County,  191  Pa.  458,  43  Atl.  421. 
See  also  People's  Gas  Light  &  Coke       Is  impressed  with  a  public  char- 
Co.  v.  Hale,  94  111.  App.  406.  acter.    Indiana  Natural  &  Ilhuninat- 

Gas  company  considered  as  public  ing  Gas  Co.  v.  State,  158  Ind.  516,  63 

service    corporation,    see    Indianap-  N.  E.  220,  57  L.  R.  A.  561. 

170 


§§   84-86  NATURE   OF   VARIOUS   CORPORATIONS 

gas  for  heat  and  light.73  Where  a  municipality  has  granted  a 
franchise  to  a  gas  company  to  occupy  the  streets  with  its 
pipes,  compulsory  service  to  all  consumers  along  the  line  may 
be  required  of  the  company  by  ordinance  of  the  city.74  So  a 
State  may  regulate  the  pressure  of  natural  gas  transported  in 
pipes  within  its  borders,  and  such  a  regulation  is  not  an  unlaw- 
ful interference  with  interstate  commerce.75  And  the  furnish- 
ing of  such  gas  to  municipal  corporations  and  their  inhabitants 
constitutes  a  public  use  within  the  taxing  power.76 

§84.  Gas  Company  —  Natural  Gas  Company  —  When 
"  Manufacturing  "  Company.— A  gas  company  engaged  in 
manufacturing  and  supplying  illuminating  gas  is  included  in 
the  term  "  manufacturing "  company.77  But  while  the  pro- 
duction of  illuminating  gas  is  a  manufacture,  the  liberation  of 
natural  gas  from  the  earth  is  not.78 

§  85.  Heating  Corporation.— A  heating  corporation  which 
is  organized  to  supply  heat  by  circulating  hot  water,  through 
pipes  in  city  streets  to  buildings,  is  not  a  public  or  quasi-public 
corporation.79 

§  86.  Hospital  Corporation. — Where  a  statute  provides  for 

73  Bailey  v.  Fayette  Gas  Fuel  Co.  L.  J.  163,  12  L.  R.  A.  652,  28  N.  E. 
(Pa.),  44  Wkly.  N.  C.  505,  44  Atl.  251.    76,  44  Alb.  L.  J.  145. 

See  People's  Gaslight  &  Coke  Co.  v.  76  State,  Attorney  General,  v.  To- 
Hale,  94  111.  App.  406.  Compare  ledo,  48  Ohio  St.  112,  25  Ohio  L.  J. 
Philadelphia  Co.  v.  Park,  138  Pa.  346,  218,  34  Am.  &  Eng.  Corp.  Cas.  28,  26 
22  Atl.  26.  N.  E.  1061,  11  L.  R.  A.  729.  See  also 
Unlawful  discrimination — regula-  as  to  public  use  Toledo  v.  North- 
tion  of  charges — Federal  Constitu-  western  Ohio  Natural  Gas  Co.,  5 
tion — equal   protection  of   laws,  see  Ohio  C.  C.  557. 

Indiana  Natural  &  Illuminating  Gas  "  Nassau  Gaslight  Co.  v.  City  of 

Co.  v.  State,  158  Ind.  516,  57  L.  R.  Brooklyn,  89  N.  Y.  409,  25  Hun  (N. 

A.  761,  63  N.  E.  220.  Y.),  567. 

74  Rushville  v.  Rushville  Natural  7S  Commonwealth  v.  Northern  Elec- 
GasCo.,  132  Ind.  575,  15  L.  R.  A.  321,  trie  Light  &  Power  Co.,  145  Pa. 
28  N.  E.  353.  105,  117,  22  Atl.  83,  14  L.  R.  A.  107, 

75  Jamieson    v.    Indianapolis    Nat.  per  Williams,  J. 

Gas  Co.,  128  Ind.  555,  10  Ry.  &  Corp.        79  Evans   v.   Boston   Heating  Co., 


157  Mass.  37,  31  N.  E.  698. 


180 


NATURE    OF   VARIOUS    CORPORATIONS  §  87 

trustees  for  the  founding  of  a  public  hospital  for  the  insane, 
and  such  trustees  are  created  a  corporation,  it  is  a  public  cor- 
poration governed  and  controlled  by  the  State,  and  it  acts  ex- 
clusively as  agent  of  the  State  and  exercises  governmental 
functions,  even  though  it  may  sue  and  be  sued  under  its  char- 
ter; such  corporation  having  no  stockholders  or  members,  ex- 
cept directors  who  have  no  interest  in  its  affairs  and  are  ap- 
pointed by  the  governor  and  senate  and  are  public  rather 
than  corporate  officers.80  But  a  hospital  may  be  one  which  is 
maintained  as  a  private  enterprise.81 

§87.  Insurance  Companies. — The  business  of  insurance  is 
not  commerce  nor  is  the  contract  of  insurance  an  instrumen- 
tality of  commerce,  so  that  a  State  may  exclude  a  foreign  in- 
surance company  from  its  territory  or  may  impose  conditions 
upon  which  entry  shall  be  made  and  may  enforce  those  con- 
ditions.82 And  statutes  prohibiting  the  carrying  on  of  business 
by  them  except  on  compliance  with  prescribed  conditions,  such 
as  obtaining  a  license  therefor,  etc.,  do  not  conflict  with  the 
guarantee  under  the  Federal  Constitution  of  privileges  and  im- 
munities to  citizens  in  the  several  States  as  they  are  not  "  citi- 
zens" within  the  Constitution.83  Insurance  companies  are  also 
subject  to  control  and  regulation  by  the  State,  and  its  power 
to  enact  laws  of  such  a  character  is  inherent  and  these  corpo- 
rations like  natural  persons  are  subject  to  legislation  of  this 
character.84  It  is  declared  in  a  New  York  case  that:  "As  the 
business  of  insuring  lives,  property,  credits  and  fidelity  of 
conduct  has  become  of  such  large  public  concern,  in  connection 
with  the  business  enterprises  and  activities  of  the  people  of  the 

80  Maia's  Adm'r  v.  Directors  of  S.)  168,  19  L.  ed.  357.  Sec  §  67, 
Eastern  State  Hospital,  97  Va.  507,    herein. 

34  S.  E.  617,  47  L.  R.  A.  577.  »*  Joyce  on  Ins.   §  327.     See 

81  Vink  v.  Work,  158  Ind.  638,  64  Raucn  v.  Prudential  Life  Ins.  Co. 
N.  E.  83  (exemption  from  taxation  (Iowa),  106  N.  W.  198;  Opinion  of 
case).  Justices,  In  re,  97  Me.  590,  55    Ul. 

"Hooper  v.  California,  155  U.  S.  828.  Examine  Adler-Weinberger  S. 
648,  15  Sup.  Ct.  207,  40  Cent,  L.  J.  S.  Co.  v.  Rothschild  &  Co.,  L23  Fed. 
228,  per  White,  J.  145;  Melancon  v.  Phcenix  Ins.  Co., 

83  Paul  v.  Virginia,  8  Wall.  (75  TT.    116  La.  324. 

1ST 


§   8S  NATURE   OF   VARIOUS   CORPORATIONS 

State  generally,  such  business  has  essentially  become  one  of  a 
public  character;  and  it  has  been  found  necessary  by  the  legis- 
lature to  guard  and  protect  the  people  of  the  State  in  their 
dealings  with  the  persons  and  corporations  assuming  to  act 
as  insurance  companies,  in  the  same  manner  that  it  has  been 
found  essential  to  deal  with  the  business  of  banking.  The 
State  has  now  for  many  years  had  a  governmental  department 
devoted  to  that  purpose,  and  has  placed  upon  the  superin- 
tendent or  head  of  that  department  responsible  duties  in  regard 
to  the  supervision  of  domestic  and  foreign  companies  doing 
business  within  the  State."85 

§  88.  Irrigation  Companies— Irrigation  Districts.— Under  a 
Federal  decision  corporations  engaged  in  the  business  of  fur- 
nishing water  for  irrigation  under  the  laws  of  California  are 
private  corporations  and  have  the  same  rights  to  contract  as 
have  individuals,  unless  prohibited  by  statute,  and  may  agree 
with  a  consumer  as  to  rates  or  charges  until  they  are  regulated 
by  the  law,  even  though  commissioners  under  the  law  may  fix 
rates  and  the  use  of  water  for  irrigation  is  a  public  use  under 
the  state  constitution.86  But  under  a  California  decision  such 
companies  are  declared  to  be  quasi-public  corporations.87 
But  irrigation  districts  organized  in  that  State,  under  the  stat- 
utes of  1887,  are  public  corporations  to  the  same  extent  as  are 
reclamation  districts,  and  they  are  compared  as  to  their  crea- 
tion to  municipal  corporations.88  In  Washington  such  districts 
are  not  municipal  corporations  when  formed  under  the  act  of 
March  20,  1890,  so  as  to  come  within  the  meaning  of  the  con- 
stitution of  that  State  as  to  the  latter's  incurring  indebted- 
ness.83   In  Texas  irrigation  companies  organized  for  the  pur- 

85  People  v.  Loew,  44  N.  Y.  Supp.  87  People  v.  Linda  Vista  Irrig. 
43,  26  Civ.  Proc.  132,  19  Misc.  248.  Dist.,  128  Cal.  477,  61  Pac.  86. 

86  San  Diego  Flume  Co.  v.  Souther,  88  Central  Irrig.  Dist.  v.  De  Lappe, 
90  Fed.  164,  170,  32  C.  C.  A.  548,  61  79  Cal.  351,  21  Pac.  825.  Compare 
U.  S.  App.  134,  s.  c,  104  Fed.  706;  Turlock  Irrig.  Dist.  v.  Williams,  76 
s.  c,  112  Fed.  229.  Examine  San  Cal.  360,  18  Pac.  379  (are  quasi-pub- 
Diego  Land  &  Town  Co.  v.  Jasper,  lie  corporations  for  general  public 
189  U.  S.  439,  445,  47  L.  ed.  892,  23  benefit). 

Sup.  Ct.  571.  "  Board    of    Directors    of    Middle 

182 


NATURE  OF  VARIOUS  CORPORATIONS         §  OO 

pose  of  furnishing  water  for  hire  to  those  desiring  its  use, 
although  technically  private  in  their  nature,  are  public  or 
quasi-public  corporations  or  carriers  of  water.  As  such  quasi- 
public  corporations  or  carriers  of  water,  they  cannot,  what- 
ever their  liability  may  be  to  the  public,  limit  it  by  contract, 
and  such  attempted  limitation  should  be  deemed  unreasonable 
and  held  to  be  void.  Corporations  of  this  class  must  be  held  to 
the  discharge  of  their  public  obligations  and  cannot  avoid  or 
escape  the  consequences  of  their  failure  to  perform  such  duties 
by  limiting  their  liability  by  contract.  Otherwise,  the  public, 
whose  servants  they  are,  are  at  their  mercy.  Nor  can  they,  in 
performing  their  public  duty,  discriminate  in  favor  of  or 
against  any  of  its  members  entitled  to  their  service.  The  ob- 
ligation rests  upon  them  to  discharge  their  duty  to  all;  they 
must  act  faithfully  in  the  performance  of  such  duty,  in  so  far 
as  they  can  by  the  exercise  of  ordinary  care  and  diligence, 
nor  is  it  any  excuse  that  they  treat  alike  wrongfully  all  the 
members  of  the  public  entitled  to  their  service,  as  a  multi- 
plicity of  wrongs  does  not  justify  a  single  one.  If  such  a 
company  contracts  to  furnish  water  to  a  consumer  and  negli- 
gently or  willfully  fails  to  comply  with  its  contract  in  such 
respect  it  becomes  liable  to  the  consumer  thus  injured,  for  any 
damage  suffered  in  the  loss  or  injury  to  his  crops  by  reason  of 
such  breach  of  contract.90  In  Arizona  a  public  irrigation  com- 
pany is  obligated,  in  the  exercise  of  its  franchise,  to  render  its 
services  to  the  public  at  reasonable  rates.91  In  Nebraska  a 
corporation  formed  for  the  purpose  of  owning,  constructing 
and  operating  canals,  reservoirs,  dams  and  other  works  for 
irrigation  and  water  power  purposes,  is  a  quasi-public  corpo- 
ration and  governmental  agency,  but  its  main  purpose  is  the 
administration  of  a  public  utility.  To  the  extent  of  its  capacity 
it  is  obligated  to  furnish  water,  to  persons  desiring  to  use  it, 

Kittitas  Irrig.   Dist.   v.   Peterson,   4  94  S.  W.  400.     See  opinion  of  Neill, 

Wash.     147,    29    Pac.    195;    Wash.  J.,  at  pp.  403,  404. 

Const,  art.  8,  §  6.  "  Salt  River  Valley  Canal  Co.  v. 

80  Colorado  Canal  Co.  v.  McFarland  Nellsen  (Ariz.,  1906),  85  Pac.  117. 
&  Southwell  (Tex.  Civ.  A;  p.,   1906), 

183 


§   89  NATURE    OF    VARIOUS    CORPORATIONS 

on  equal  terms  and  without  discrimination.  It  has  no  right  or 
power  to  bind  itself  by  a  contract  which,  if  enforced,  would 
prevent  its  serving  the  public  on  such  terms.92 

§89.  Levee  Districts — Levee  Boards.— Levee  districts  are 
declared  to  be  neither  private  nor  public  corporations;93  and 
are  also  said  to  be  public  corporations.94  And  under  a  Federal 
decision,  a  levee  district  is  a  corporation  and  a  public  corpo- 
ration with  power  to  sue  and  be  sued  even  though  a  statute 
creating  a  board  of  levee  inspectors  with  the  powers  usually 
incident  to  such  corporations  does  not  expressly  declare  it  to 
be  a  corporation.95  But  in  Illinois  a  board  of  directors  ap- 
pointed by  statute  to  locate  and  superintend  the  construction 
of  a  levee,  with  power  to  contract,  sue  and  be  sued  under  a 
specified  name,  is  strictly  a  private  corporation.96  It  is  also 
held  that  a  levee  district  board  exercises  only  public  duties  and 
functions  and  cannot  be  sued  outside  of  the  State.97  Again,  it 
is  decided  that  such  a  district  is  a  state  local  tax  or  assessment 
district,  whose  powers  may  be  enlarged  by  the  legislature.98 
But  it  is  also  held  that  power  cannot  be  delegated  to  a  levee  dis- 
trict to  levy  a  tax  under  a  state  constitutional  provision  au- 
thorizing such  legislative  delegation  of  power  to  counties  and 
incorporated  towns.99    Again,  a  levee  board  may  be  a  corpora- 

92  Sammons  v.  Kearney  Power  &  Wabash  River  v.  Houston,  71  111. 
Irrigation  Co.  (Neb.,  1906),  110  N.  W.    318,  322. 

308,  312,  citing  and  considering  State  97  Board  of  Directors  of  St.  Francis 

v.  Hartford  &  New  Haven  Rd.  Co.,  Levee   Dist.  v.  Bodkin  (Tenn.),    69 

"29  Conn.  538;  Chicago  Gaslight  Co.  S.  W.  270. 

v.  People's  Gaslight  Co.,  121  111.  530,  B8  Hughes  v.  Board  of  Commrs.  of 

2  Am.  St.  Rep.  124,  13  N.  E.  169;  Caddo  Levee  Dist.,  108  La.  146,  32 

West  Virginia  Transportation  Co.  v.  So.  218. 

Ohio  River  Pipe  Line  Co.,  22  W.  Va.  A  police  jury  as  a  sublevee  district 

600,  46  Am.  Rep.  527.  cannot  under  the  constitution  levy 

93  People  v.  Reclamation  Dist.  a  special  tax  for  levee  improvements. 
No.  551,  117  Cal.  114,  48  Pac.  Zeigler  v.  Thompson,  43  La.  Ann. 
1016.  1013,  10  So.  197. 

84  Dean  v.  Davis,  51  Cal.  406.  "  Reelfoot    Lake    Levee    Dist.    v. 

95  Board    of    Levee    Inspectors    of  Dawson,  97  Tenn.  151,  36  S.  W.  1041, 

Chicot  County  v.  Crittenden,  94  Fed.  34  L.  R.  A.  725.    Compare  Carson  v. 

613.  St.  Francis  Levee  Dist.,  59  Ark.  513, 

99  Board  of  Directors  for  Leveeing  27  S.  W.  590. 

184 


NATURE   OF   VARIOUS   CORPORATIONS  §  90 

tion  vested  with  large  discretionary  powers  as  a  fiduciary  agent 
to  carry  out  public  purposes,  such  as  power  to  aid  in  building 
levees,  or  other  works  of  public  improvement.  It  may  also  pos- 
sess authority  to  sue.1  And  an  act  conferring  corporate  powers 
on  a  board  of  directors  of  a  levee  district  created  by  statute  does 
not  violate  a  state  constitutional  provision  against  special  acts 
conferring  corporate  powers,  as  private  corporations  only  are 
within  such  provision.2  It  is  held,  however,  that  levee  dis- 
tricts are  not  corporations,  but  state  functionaries  within  the 
prohibition  of  a  state  constitution  as  to  loaning  funds,  etc.,  of 
the  State.3  In  Arkansas  neither  a  levee  district  nor  its  board 
of  directors,  is  a  municipality  within  a  constitutional  pro- 
hibition as  to  issuance  of  interest-bearing  evidences  of  debt.4 
In  Missouri  a  levee  district  is  a  political  subdivision  of  the 
State.5  A  levee  constructed  along  a  river  is,  however,  such  a 
public  use  that  the  power  of  eminent  domain  may  be  exer- 
cised.6 The  word  "levee"  is  synonymous  with  the  word 
"landing"  when  used  in  connection  with  levees  bordering  on 
navigable  streams  and  sloughs.7 

§  90.  Log  Driving  or  Boom  Corporation. — The  character  of 
a  corporation,  as  one  created  for  pecuniary  profit  or  as  a  boom 
company  to  improve  a  river  for  log  driving,  may  be  affected 

1  Louisiana,  A.  &  M.  R.  Co.  v.  lands  in  constructing  levee,  see  De 
Tensas  Basin  Levee  Dist.  Commr's,  Baker  v.  Southern  Cal.  R.  Co.,  106 
87  Fed.  594,  31  C.  C.  A.  121,  58  U.  S.    Cal.  257,  39  Pac.  610. 

App.  281.  *  Missouri,    K.    &  T.    Ry.    Co.    v.. 

2  Carson  v.  St.  Francis  Levee  Dist.,  Cambern,  66  Kan.  265,  71  Pac.  809, 
59  Ark.  513,  27  S.  W.  590.  aff'g  63  Pac.  605. 

3  Fisher  v.  Steele,  39  La.  Ann.  447,  As  to  exercise  of  power  of  eminent 
1  So.  882.  domain  see  Pont  chart  rain  R.  Co.  v. 

*  Memphis  Trust  Co.  v.  Board  of  Orleans  Levee  Dist.  Comm'rs,  49  La. 

Directors  of  St.  Francis  Levee  Dist.,  Ann.  570,  21  So.  765;  Union  I  lei  ator 

69  Ark.  284,  62  S.  W.  902  (applied  to  Co.  v.  Kansas  City  Suburban  B.  R. 

St.  Francis  Levee  District).  Co.  (Mo.),  33  S.  W.  929,  modified  L35 

5  Morrison  v.  Morey,  146  Mo.  543,  Mo.  353,  36  S.  W.  1071;  Hansen  v. 

48  S.  W.  629.  Bammer,    15   Wash.    315,   46   Pac. 

Municipal  corporation  not  liable  in  332. 

exercise  of  police  powers  for  errors  7  Napa  v.  Howland,  87  Cal.  84,  25 

of    judgment  for  damage  to  others'  Pac.  247. 

185 


§   90  NATURE   OF   VARIOUS   CORPORATIONS 

by  the  terms  of  the  statute  under  which  such  corporation  or 
company  is  incorporated.8  The  business  of  booming  logs  on 
the  waters  of  streams  running  through  the  forests  of  the  West, 
is  a  lawful  business,  and  a  boom  company  is  a  lawfully  organ- 
ized corporation  for  the  purpose  of  doing  such  lawful  busi- 
ness; and  it  is  "chartered"  by  law,  when  the  corporation 
owning  it  is  incorporated  under  either  a  general  or  special  law. 
And  the  improvement  made  in  the  Mississippi  River  by  the 
construction  of  the  boom  and  its  works,  and  the  exaction  of 
reasonable  charges  for  the  use  of  such  works,  including  fees  of 
state  officials  for  inspecting  and  scaling,  if  done  under  state 
authority,  cannot  be  considered  in  any  just  sense  a  burden 
upon  interstate  commerce.9  But  a  corporation  having  power 
under  its  charter  to  improve  the  navigation  of  a  stream,  cannot, 
as  incidental  thereto,  exercise  a  claimed  right  to  drive  or 
handle  logs.10  A  log  driving  or  boom  corporation,  authorized 
by  its  articles  of  incorporation  to  use  the  waters  of  a  navigable 
river  for  a  purpose  public  in  its  nature,  such  as  improving 
navigation,  and  facilitating  its  business,  has  the  rights  of  the 
public  in  the  stream  within  its  well-defined  banks,  and  in  aid 
of  navigation  it  can  raise  and  permanently  maintain  the  water 
up  to  ordinary  high-water  mark,  without  making  any  com- 
pensation to  riparian  owners  and  without  incurring  liability 
in  case  of  injury  to  them.11  A  boom  company  may  exercise 
the  power  of  eminent  domain,12  although  the  condemnation  of 
land  for  log  roads  is  a  taking  of  private  property  for  private  use 
and  violates  the  constitution.13  Again,  such  boom  companies 
are  also  subject  to  the  right  of  the  legislature  to  regulate  the 
fees  or  tolls  for  booming,  sorting  and  rafting  logs  or  lumber.14 

8  See  International  Boom  Co.  v.  "  Gniadck  v.  Northwestern  Im- 
Rainy  Lake  River  Boom  Corp.,  97  provement  &  B.  Co.,  73  Minn.  87,  89, 
Minn.  513,  107  N.  W.  735.  75  N.  W.  894. 

9  Lindsay  &  Phelps  Co.  v.  Mullen,  12  Samish  River  Boom  Co.  v.  Union 
176  U.  S.  126,  20  Sup.  Ct.  125,  44  L.  Boom  Co.,  32  Wash.  586,  73  Pac.  670. 
ed.  400.  13  Healy  Lumber  Co.  v.  Morris,  33 

10  Northwestern  Improvement  &  B.  Wash.  490,  74  Pac.  681,  63  L.  R.  A. 
Co.  v.  O'Brien,  75  Minn.  335,  75  N.    820. 

W.  989.  u  Machias  Boom  v.  Holway,  89  Me. 

186 


NATURE    OF    VARIOUS    CORPORATIONS  §§   91-93 

§91.  Manufacturing  Corporations. — Manufacturing  corpo- 
rations are  private  corporations  in  the  strictest  sense,  as  they 
are  created  for  the  convenience  of  the  corporation,  and  are 
charged  with  no  public  duties  whatever.15 

§  92.  Market  Company. — A  company  incorporated  to  build 
and  maintain  a  market  house,  on  property  to  be  acquired  by 
purchase,  and  authorized  to  rent  stalls  therein,  on  such  terms 
and  to  such  persons  as  its  managers  may  determine,  with  full 
power  to  lease  or  sell  the  property  acquired  for  that  purpose, 
and  to  quit  the  business  at  its  own  pleasure,  is  in  every  legal 
sense  a  mere  private  business  corporation.16  So  where  a  build- 
ing, which  is  a  market  house,  is  erected  upon  a  public  square 
in  a  borough,  which  the  corporation,  a  private  one,  is  permitted 
to  occupy  until  the  borough  purchases  and  pays  for  the  build- 
ing, it  differs  in  no  respect  from  the  business  of  an  individual 
except  that  it  is  erected  in  such  place,  as  the  company  needs 
no  chartered  rights  to  carry  on  its  business  and  the  building  is 
not  exempt  from  local  taxation;  and  the  principle  that  the 
works  of  a  public  corporation,  as,  for  example,  the  case  of  a 
railroad  company,  may  not  be  subjected  to  local  taxation 
without  express  statutory  mandate,  does  not  apply  to  such 
private  corporation.17 

§  93.  Medical  College.18 — A  medical  college  is  a  private,  or 
part  of  a  private  corporation,  and  not  a  public  or  political 
corporation,  and  the  creating  act  of  such  a  society  constitutes 
a  contract  with  the  State  which  cannot  be  impaired,  under  the 

236;  Underwood  Lumber  Co.  v.  Pel-  See  §§  77,  84,  herein, 
ican  Boom  Co.,  76  Wis.  76,  45  N.  W.  16  Twelfth  St.  Market  Co.  v.  Phila- 
18.  Examine  as  to  rights  of  boom  delphia  &  Reading  R.  Co.,  142  Pa. 
companies  The  Navigation  Law,  580,  21  Atl.  989. 
Laws  of  New  York  1897,  chap.  592,  "  Allegheny  County  v.  McKeesport 
art.  V;  Cumming  &  Gilbert's  Gen.  Diamond  Market,  123  Pa.  164,  168, 
Laws  &  Gen'l  Stat,  of  N.  Y.,  pp.  2525    16  Atl.  619. 

et  seq.  Right  of  city  to  control  public  mar- 

15  Hamilton  Mfg.  Co.  v.  Massachu-   kets,  see  Swayze  v.  City  of   Monroe, 
setts,  6  Wall.  (73  U.  S.)  632,  638,  18    116  La.  643,  40  So.  926. 
L.  ed.  904.  per  Clifford,  J.  1S  See  §  73,  herein. 

187 


§§  94,  95    NATURE  OF  VARIOUS  CORPORATIONS 

Federal  Constitution,  by  a  subsequently  enacted  statute  trans- 
ferring all  its  powers  to  a  new  corporation  without  such  so- 
ciety's consent.19  But  a  medical  college  may  by  its  consent 
become  a  public  corporation.20 

§  94.  Park  Association. — A  park  association  is  a  private 
corporation  where  its  objects  are  especially  private  and  it 
possesses  a  distinctive  name.21 

§  95.  Plank  Roads.22— The  nature  of  the  right  of  a  plank 
road  company  in  a  road  constitutes  rather  an  easement  than 
an  absolute  title ;  it  is  a  franchise  impressed  with  a  public  duty 
to  maintain  a  highway  for  public  use.23 

19  State  v.  Heyward,  3  Rich.  Law  23  Western  Plank  Road  Co.  v. 
(S.  C),  389,  408.  Central  Union  Tel.  Co.,  116  Ind.  227, 

20  Lewis  v.  Whittle,  77  Va.  415.  18  N.  E.  14. 

21  Commonwealth  v.  Hazen,  207  When  plank  roads  are  highways, 
Pa.  52,  56  Atl.  263.  see  Flint  &  Pere  Marquette  Ry.  Co. 

22  See  §  116,  herein.  v.  Gord,  41  Mich.  420,  2  N.  W.  648. 


188 


NATURE  OF  VARIOUS  CORPORATIONS  CONTINUED   §  96 


CHAPTER  VII. 


NATURE  OF  VARIOUS  CORPORATIONS  CONTINUED. 


Race  Track  Association. 

Railroad  Companies — Nature 
of  as  Affected  by  Their  Re- 
lation and  Duty  to  the 
Public. 

Railroad  Companies  as  Public 
Corporations  or  "  Public 
Companies  " — Statute. 

Railroad  Companies  as   Pri- 
vate Corporations. 
100.  Railroad  Companies  as  Quasi- 
public  Corporations. 

Railroad  Companies  as  Form- 
ing Distinct  Class  by  Them- 
selves— Distinct  from  Pub- 
lic, Private,  or  Other  Quasi- 
Public  Corporations. 

Railroad — Public  Use. 
103.  Railroad — Machine    for    Un- 
loading Coal— Branch  Rail- 
road Track — Public  Use. 

Railroads  as  Public  Utilities 
— Public  Service  Commis- 
sions Law — Public  Utilities 
Act. 

Railroad  Companies  as  Com- 
mon Carriers. 


96. 
97. 


98. 


99. 


101. 


102. 


104. 


105. 


106.  Railroad    Carriers'    Business 

as  Part  of  Trade  or  Com- 
merce —  Interstate  Com- 
merce. 

107.  Railroads  as  Highways. 

108.  Reclamation  Districts. 

109.  Sleeping-Car        Companies- 

Palace  Cars. 

110.  Stockyards  Company. 

111.  Street  Railways — Street  Rail- 

way Companies. 

112.  Street  Railroad — Street  Rail- 

road    Corporation — Public 
Service  Commissions  Law. 

113.  Storage  and   Elevator  Com- 

panies. 

114.  Telegraph      and      Telephone 

Companies. 

115.  Trustees — Company  Incorpo- 

rated as — Trustees  of  Poor. 

116.  Turnpike       Companies — Toll 

Roads. 

117.  Turnpike  Road  as  Highway. 

118.  Waterworks. 

119.  Wharf— "  Public      Wharf- 

Wharfingers. 


§  96.  Race  Track  Association.— Where  a  corporation  is  or- 
ganized for  a  public  purpose  and  enjoys  a  public  franchise, 
the  conditions  upon  which  it  shall  exercise  the  privileges  or 
right  conferred  may  be  determined  and  directed  by  the  legis- 
lature; 1  and  this  rule  has  been  applied  to  a  racing  association 

iGrannan  v.  Westchester  Racing  896,  modifying  44  N.  Y.  Supp.  790, 
Assoc,  153  N.  Y.  449,  461.  47  N.  E.    16  App.  Div.  8. 

189 


§   97  NATURE    OF   VARIOUS 

as  a  public  corporation.2  But  it  is  also  held  that  a  race  track 
corporation  which  offers  purses  and  stakes,  is  a  private  and  not 
a  quasi-public  corporation  where  it  exercises  no  franchises, 
which  clothe  it  with  any  public  duty,  and  it  has  never  held 
itself  out  for  public  service;  and  there  is  no  grant  of  state  aid 
nor  the  possession  of  the  power  of  eminent  domain,  nor  any 
obligation  to  offer  stakes  or  purses,  but  its  business  is  trans- 
acted for  its  own  private  purposes.3 

§97.  Railroad  Companies  —  Nature  of  as  Affected  by 
Their  Relation  and  Duty  to  the  Public. — Railroad  corpora- 
tions are  invested  with  special  privileges,  and  the  consideration 
for  the  public  grant  is  the  performance  of  their  duties  to  the 
public.  The  franchise  granted  to  them  is  intended  to  be  ex- 
ercised for  the  public  good;  their  business  is  a  matter  of  pub- 
lic concern  as  the  public  have  an  interest  therein;  and  such 
corporations  exercise  their  franchises  as  a  quasi-public  trust 
for  the  benefit  of  the  people.  They  are  public  agents  and 
perform,  to  a  certain  extent,  certain  functions  of  the  govern- 
ment with  which  they  are  intrusted  in  order  to  afford  the 
public  necessary  means  of  transportation.    As  they  are  formed 

See  the  following  cases:  v.  Choctaw,  O.  &  G.  R.  Co.,  3  Okla. 

United   States:   Jersey  City  Gas  404,  41  Pac.  729. 

Light  Co.  v.  United  Gas  Improve-  Pennsylvania:       Commonwealth, 

ment    Co.,    46    Fed.    264,    266,    per  Bell   Teleph.    Co.    v.    Warwick,    185 

Greene,    J.,     case     aff'd     58     Fed.  Pa.  623,  40  Atl.  93;  Perkiomen  R. 

323.  Co.  v.  Collegeville  Electric  St.  R.  Co. 

Illinois:    Chicago    General  R.  Co.  (Pa.  C.  P.),  14  Mont.  Co.  L.  R.  13. 

v.  Chicago,  176  111.  253,  66  L.  R.  A.  Texas:   Galveston  &  Western   R. 

959,  52  N.  E.  880,  68  Am.  St.  Rep.  Co.   v.   Galveston,   90  Tex.   398,   36 

188;   Byrne  v.   Chicago   General  R.  L.  R.  A.  33. 

Co.,  169  111.  75,  7  Am.  &  Eng.  Corp.  Virginia:  Richmond  R.  &  E.  Co. 

Cas.  (N.  S.)  768,  48  N.  E.  703,  aff' g  v.  Brown,  97  Va.  26,  32  S.  E.  775, 

63  111.  App.  438.  1  Va.  S.  C.  Rep.  213. 

Maine:    Boston  &  M.   R.   Co.    v.  2  Grannan  v.  Westchester  Racing 

County  Commrs.,  79  Me.  386,  10  Atl.  Assoc,  153  N.  Y.  449,  461,  47  N.  E. 

113,  4  N.  Eng.  657.  896,  modifying  44  N.  Y.  Supp.  790, 

New  Jersey:   State,  Hutchinson,  16  App.  Div.  8. 

v.  Belmar,  61  N.  J.  L.  443,  39  Atl.  3  Corrigan  v.  Coney  Island  Jockey 

643,  aff'd  62  N.  J.  L.  450.  Club,  22  N.  Y.  Supp.  394,  2  Misc.  512, 

Oklahoma:  United  States,  Search,  51  N.  Y.  St.  R.  592. 

190 


CORPORATIONS   CONTINUED 


§  97 


for  the  convenience  of  the  public  in  the  transportation  of  per- 
sons and  merchandise,  they  are  empowered  to  charge  and  re- 
ceive a  reasonable  compensation  for  such  carriage.  They  are 
also  subjected  to  burdens  not  imposed  on  the  owners  of  mere 
private  property  used  exclusively  for  private  interests.  As 
their  franchises  are  granted  on  the  ground  of  public  good,  or 
public  service,  which  is  common  or  equal  in  every  citizen,  un- 
equal and  unjust  favors  are  precluded,  they  must  exercise  a 
perfect  impartiality  and  cannot  discriminate,  and  they  assume 
the  obligation  to  transport  all  persons  and  merchandise  upon 
like  conditions  and  at  reasonable  rates.  They  may  be  au- 
thorized to  exercise  the  right  of  eminent  domain,  and  are 
subject  to  reasonable  and  just  legislative  control  for  the  common 
welfare;  4  nor  can  they  by  contract  render  themselves  incapable 


4  United  States  v.  Trans-Missouri 
Freight  Assoc,  166  U.  S.  290,  321, 
332,  41  L.  ed.  1007,  17  Sup.  Ct.  540. 
See  Chicago,  Milwaukee  &  St.  Paul 
Rd.  Co.  v.  Minnesota,  134  U.  S.  418, 
461,  33  L.  ed.  970,  10  Sup.  Ct.  462, 
702,  per  Bradley,  J.,  in  dissenting 
opinion.  Barton  v.  Barbour,  104 
U.  S.  126,  135,  per  Woods,  J. 

"Though  railroad  corporations  are 
private  corporations  as  distinguished 
from  those  created  for  municipal  and 
governmental  purposes,  their  uses  are 
public.  They  are  formed  for  the  con- 
venience of  the  public  in  the  trans- 
portation of  persons  and  merchan- 
dise, and  are  invested  for  that  purpose 
with  special  privileges.  They  are 
allowed  to  exercise  the  State's  right 
of  eminent  domain  that  they  may 
appropriate  for  their  uses  the  neces- 
sary property  of  others  upon  paying 
just  compensation  therefor,  a  right 
which  can  only  be  exercised  for  public 
purposes.  And  they  assume,  by  the 
acceptance  of  their  charters,  the  obli- 
gation to  transport  all  persons  and 
merchandise  upon  like  conditions  and 
at  reasonable  rates;  and  they  are  an 


thorized  to  charge  reasonable  com- 
pensation for  the  services  they  thus 
perform.  Being  the  recipients  of 
special  privileges  from  the  State,  to 
be  exercised  in  the  interests  of  the 
public,  and  assuming  the  obligations 
thus  mentioned,  their  business  is 
deemed  affected  with  a  public  use." 
Charlotte,  Columbia  &  Augusta  Rd. 
Co.  v.  Gibbes,  142  U.  S.  386,  393, 
35  L.  ed.  1051,  12  Sup.  Ct.  255,  per 
Field,  J. 

The  franchise  of  a  railroad  corpora- 
tion is  intended  to  be  exercised  for  the 
public  good,  the  consideration  for  this 
public  grant  being  the  performance  of 
these  functions.  Thomas  v.  West 
Jersey  Rd.  Co.,  101  U.  S.  71,  83,  25 
L.  ed.  950,  quoted  in  Chicago  v. 
People's  Gas  Light  &  Coke  Co.,  121 
111.  530,  13  N.  E.  169,  173. 

"It  is  clear  that  the  privilege  of 
making  a  railway  or  turnpike, 
*  *  *  and  taking  tolls  for  the 
same,  is  a  franchise,  as  the  public 
have  an  interest  in  the  same,  and  the 
owners  of  the  privilege  are  liable  to 
in  vi  i  in  damages  if  they  refuse  the 
use  of  the  same,  without  any  reason- 

191 


§97 


NATURE   OF   VARIOUS 


of  performing  their  duties  to  the  public,  which  are  imposed 
upon  them,  nor  can  they  absolve  themselves  from  their  obli- 


able  excuse,  upon  being  paid  or  ten- 
dered the  usual  fare."  People's  Rail- 
road v.  Memphis  Railroad,  10  Wall. 
(77  U.  S.)  38,  51,  20  L.  ed.  844,  per 
Clifford,  J.,  citing  Beekman  v.  Sara- 
toga &  Schenectady  Rd.  Co.,  3  Paige 
Ch.  (N.  Y.)  45,  so  holding;  Wil- 
loughby  v.  Horridge,  16  Eng.  L.  & 
Eq.  437;  3  Kent's  Comm.  (11th 
ed.)  590;  County  Commissioners  v. 
Chandler,  96  U.  S.  205,  209,  24  L. 
ed.  625,  per  Bradley,  J. 

Railroad  companies  are  by  their 
charters  "empowered,  besides  build- 
ing and  maintaining  their  roads,  to 
carry  passengers  and  property  for  a 
compensation;  and  at  the  same  time 
a  correlative  duty  is  imposed,  that 
they  shall  receive  and  carry  passen- 
gers and  freights  over  their  roads,  as 
they  may  be  offered  for  the  purpose. 
And  when  they  accept  their  charters, 
it  is  with  the  implied  understanding 
that  they  will  fairly  perform  these 
duties  to  the  public,  as  common  car- 
riers of  both  persons  and  property, 
under  the  responsibility  which  that 
relation  imposes."  Peoria  &  Rock 
Island  Ry.  Co.  v.  Coal  Valley  Mining 
Co.,  68  111.  489,  494. 

"All  property  devoted  to  public 
use  takes  a  nature  or  qualification 
quasi-public.  *  *  *  Where  prop- 
erty belonging  to  a  natural  person  or 
to  a  corporation  becomes  'affected 
with  a  public  interest,  it  ceases  to  be 
juris  privati  only.'  Where  a  party 
devotes  his  property  to  a  public  use, 
the  community  at  large  acquires  such 
a  qualified  interest  as  will  subject  it 
to  legislative  control  for  the  common 
welfare.  Accordingly,  the  property  of 
railroads  and  other  public  corpora- 
tions  transacting   business   for   and 

192 


with  the  public  has  been  subjected 
to  burdens  not  imposed  on  the  own- 
ers of  mere  private  property,  used 
exclusively  for  private  interests. 
*  *  *  Railroad  companies  are 
public  corporations  in  a  limited 
sense,  although  the  right  of  way, 
roadbed,  and  the  track  thereon,  are 
for  the  exclusive  use  of  the  owners, 
over  which  only  their  own  convey- 
ances are  propelled.  *  *  *  The 
fact  that  railroad  corporations  are 
granted  exclusive  franchises  to  con- 
duct a  business  in  its  nature  public 
must  subject  them  to  all  reasonable 
control  to  secure  the  public  safety 
and  welfare.  It  is  now  the  settled 
law  that  railroad  corporations  are 
within  the  operation  of  all  reasonable 
police  regulations."  Illinois  Central 
Rd.  Co.  v.  Copiah  County,  81  Miss. 
685,  694,  33  So.  502,  per  Whitfield,  C. 
J.,  quoting  from  Illinois  Central  Rd. 
Co.  v.  Willenborg,  117  111.  203,  209, 
57  Am.  Rep.  862,  7  N.  E.  698,  per 
Scott,  J. 

"In  the  grant  of  a  franchise  of 
building  and  using  a  public  railway, 
there  is  an  implied  condition  that  it  is 
held  as  a  quasi-public  trust  for  the 
benefit  of  the  public,  and  the  corpora- 
tion possessed  of  the  grant  must 
exercise  a  perfect  impartiality  to  all 
who  seek  the  benefit  of  the  trust." 
It  is  true  "  that  these  railroad  corpora- 
tions are  private,  and,  in  the  nature 
of  their  business,  are  subject  to,  and 
bound  by,  the  doctrine  of  common 
carriers,  yet,  beyond  that  in  a  pecu- 
liar sense,  they  are  intrusted  with 
certain  functions  of  the  government, 
in  order  to  afford  the  public  necessary 
means  of  transportation.  The  be- 
stowment     of    these     franchises     is 


CORPORATIONS   CONTINUED  §   97 

gations  without  consent  of  the  State.5  Although  its  functions 
are  public,  a  railroad  company  holds  the  legal  title  to  the 
property  employed  in  the  discharge  of  its  duties,  and  while 
it  must  under  all  circumstances  do  everything  reasonably 
necessary  for  the  accommodation  of  passengers  and  shippers, 
it  may  use  its  property  to  the  best  advantage  of  the  public 
and  itself,  and  for  that  end  may  make  reasonable  rules  and 
regulations  for  the  use  of  its  property  consistent  with  the  pur- 
poses for  which  it  is  created,  and  not  inconsistent  with  legally 
established  regulations.  When  not  unnecessary,  unreasonable 
or  arbitrary,  a  railroad  may  make  arrangements  with,  including 
the  granting  of  special  privileges  to,  a  single  concern  to  supply 
passengers  arriving  at  its  terminals  with  hacks,  and  cabs,  and 
it  is  not  bound,  at  least  in  the  absence  of  valid  state  legislation 
requiring  it  to  do  so,  to  accord  similar  privileges  to  other  per- 
sons, even  though  they  be  licensed  hackmen.  Such  an  exclu- 
sive arrangement  is  not  a  monopoly  in  the  odious  sense  of  the 


justified  only  on  the  ground  of  public  to  railroads  should  be  fostered  by- 
good,  and  they  must  be  held  and  the  courts.  Joy  v.  St.  Louis,  138  U. 
enjoyed  for  that  end.  This  public  S.  1,  11  Sup.  Ct.  9,  34  L.  ed.  604. 
good  is  common,  and  unequal  and  5  "It  is  well  settled  on  the  soundest 
unjust  favors  are  entirely  inconsistent  principles  of  public  policy  that  a  con- 
with  the  common  right.  So  far  as  tract,  by  which  a  railroad  company 
their  duty  to  serve  the  public  is  con-  seeks  to  render  itself  incapable  of 
cerned,  they  are  not  only  common  performing  its  duties  to  the  public,  or 
carriers,  but  public  agents,  and  in  attempts  to  absolve  itself  from  its 
their  very  constitution  and  relation  obligations  without  the  consent  of  the 
to  the  public,  there  is  necessarily  an  State,  is  void  and  cannot  be  rendered 
implied  duty  on  their  part,  and  a  enforceable  by  the  doctrine  of  es- 
right  in  the  public,  to  have  fair  treat-  toppel,  and  any  contract  which  dis- 
ment  and  immunity  from  unjust  ables  the  corporation  from  perform- 
discrimination.  The  right  of  the  ing  its  functions  without  the  consenl 
public  is  equal  in  every  citizen,  and  of  the  State,  and  to  relieve  the  gran- 
the  trust  must  be  performed  so  as  to  tees  from  the  burden  it  imposes,  is  in 
secure  and  protect  it."  Messenger  v.  violation  of  the  contract  with  the 
Pennsylvania  Rd.  Co.,  37  N.  J.  L.  State,  and  is  void  as  against  public 
631,  536,  537,  18  Am.  Rep.  754.  policy."  Paige  v.  Schenectady  Ry. 
Examine  note  3  Am.  &  Eiifj.  Rd.  ('as.  Co.  (Thompson  v.  Same),  178  N.  Y. 
602,  especially  as  to  weight  of  Eng-  102,  115,  70  N.  E.  213,  per  Martin,  J. 
lish  authority  contra.  (citing  several    rases),    case   reverses 

The  rights  of  the  public  in  respect    82  N.  Y.  Supp.  192,  84  App.  Div.  91. 

13  193 


§§    98,  99  NATURE    OF   VARIOUS 

word,  nor  docs  it  involve  an  improper  use  by  a  railroad  com- 
pany of  its  property.6 

§  98.  Railroad  Companies  as  Public  Corporations  or  "  Pub- 
lic Companies" — Statute. — Railroad  companies  "are  pub- 
lic corporations  in  a  limited  sense."7  And  they  are  "public 
companies"  when  incorporated  under  the  English  companies' 
acts,  so  as  to  come  within  the  terms  of  a  direction  to  trustees, 
under  a  will,  to  invest  in  securities  of  any  railway  or  other 
public  company.8  Where  a  statute  provides  that  all  railroad 
corporations,  chartered  by  the  State,  which  shall  be  unable  to 
purchase  lands  for  their  roads,  of  the  owners  of  the  respective 
routes,  at  agreed  upon  rates,  shall  be  public  corporations,  and 
an  earlier  statute  provides  that  members  of  public  corpora- 
tions shall  be  competent  witnesses  in  cases  affecting  the  in- 
terests of  such  corporations,  it  is  held  that  railroad  corpora- 
tions are  not  such  public  corporations,  within  the  meaning  of 
the  earlier  enacted  statute,  that  the  stockholders  can  be  wit- 
nesses for  the  corporation.9 

§  99.  Railroad  Companies  as  Private  Corporations.— Tech- 
nically, railroad  companies  are  private  corporations,  they  are 
private  as  distinguished  from  those  created  for  municipal  and 
governmental  purposes.10  They  are  also  private  in  the  nature 
of  their  business,11  and  in  the  sense  that,  even  though  their 

e  Donovan    v.    Pennsylvania    Co.,  L.  ed.  382,  per  Strong,  J.    See  note  to 

199  U.  S.  279,  50  L.  ed.  192,  26  Sup.  §  99,  herein. 

Ct.  91.  8  Sharp,  In  re  (C.  A.),  L.  R.  45  Ch. 

7  Illinois  Central  Rd.  Co.  v.  Copiah  D.  286. 

County,  81  Miss.  685,  694,  33  So.  502,  8  Dearborn  v.  Boston,  Concord  & 

per  Whitfield,  J.  Montreal   Rd.,   24   N.    H.    (4  Fost.) 

"  It    is   not  seriously  denied    that  179,  189. 

railroad,     though     constructed     and  10  Charlotte,  Columbia  &  Augusta 

owned  by  a  private  corporation  is  a  Rd.  Co.  v.  Gibbes,  142  U.  S.  386,  393, 

matter  of  public  concern,  and  that  12   Sup.    Ct.    255,    35   L.    ed.    1051; 

its  uses  are  so  far  public  that  the  Burhop  v.  City  of  Milwaukee,  21  Wis. 

right  of  eminent  domain  of  the  State  257. 

may  be  exerted  to  facilitate  its  con-  «  Messenger  v.   Pennsylvania  Rd. 

struction."    Olcott  v.  Supervisors,  16  Co.,  37  N.  J.  L.  531,  536,  537,  18  Am. 

Wall.   (83  U.  S.)  678,  695,  696,  22  Rep.  754. 

194 


CORPORATIONS   CONTINUED  §    100 

uses  are  public,  the  contract  embodied  by  implication  in  their 
charters  is  within  the  constitutional  provision  which  prohibits 
the  impairment  of  obligations  of  contracts.12  Although  a 
railway  company  is  technically  a  private  corporation,  yet  it  is 
designed  to  promote  the  general  public  good  as  well  as  advance 
private  speculation.  So,  too,  are  turnpike  and  canal  companies, 
and  other  like  corporations,  designed  to  enhance  the  public 
prosperity.  The  interest,  therefore,  which  the  public  may  have 
in  a  corporation,  unless  it  has  all  the  interest,  does  not  nec- 
essarily make  it  a  public  corporation.13  It  is  declared  in  a 
Pennsylvania  case  that:  "A  railroad  company  is  not  public, 
nor  does  it  stand  in  the  place  of  the  public;  it  is  but  a  private 
corporation  over  whose  rails  the  public  may  travel  if  it  choose 
to  ride  in  its  cars.  Indeed,  we  regard  it  as  a  misnomer  to  at- 
tach even  the  name  'quasi-public  corporation'  to  a  railroad 
company,  for  it  has  none  of  the  features  of  such  corporations, 
if  we  except  its  qualified  right  of  eminent  domain,  and  this  is 
because  of  the  right  reserved  in  the  public  to  use  its  way  for 
travel  and  transportation.  Its  officers  are  not  public  officers, 
and  its  business  transactions  are  as  private  as  those  of  a  bank- 
ing house.  Its  road  may  be  called  a  quasi-public  highway, 
but  the  company  itself  is  a  private  corporation  and  nothing 
more."  14 

§  100.  Railroad  Companies  as  Quasi-Public  Corpora- 
tions.— In  the  circumstances  of  their  origin  and  in  their 
powers,  uses  and  duties,  railroad  corporations  are  clearly 
distinguishable  from  other  merely  private  corporations.  There 
is  no  analogy  between  railroad  corporations,  and  manufactur- 
ing, mining  and  other  like  corporations,  evoked  by  no  public 
necessity,  exercising  no  sovereign  powers,  subserving  no  pub- 
lic uses,  and  subject  to  no  public  duties.     And  these  distin- 

12  Georgia  R.  &  Bkg.  Co.  v.  Smith,  "  Pierce  v.  Commonwealth,  104 
128  U.  S.  174,  9  Sup.  Ct.  47,  32  L.  ed.  Pa.  150,  155,  13  Am.  &  Eng.  Rd. 
377,  16  Wash.  L.  Rep.  749.  Cas.   74,   79,   per  Gordon,   J.,   citing 

13  Board  of  Directors  for  Leveeing  Presbyterian  Society  v.  Auburn  & 
Wabash  River  v.  Houston,  71  111.  Rochester  Rd.  Co.,  3  Hill  (N.  Y.), 
318,  322,  per  Scott,  J.  567. 

195 


§    101  NATURE    OF   VARIOUS 

guishing  characteristics  make  railroad  corporations  quasi- 
public  corporations.  They  are  creatures  of  the  law,  intrusted 
with  the  exercise  of  sovereign  powers  to  subserve  public  ne- 
cessities and  uses  and  are  bound  to  conduct  their  affairs  in 
furtherance  of  the  objects  of  their  creation.15 

§  101.  Railroad  Companies  as  Forming  Distinct  Class  by 
Themselves— Distinct  from  Public,  Private,  or  Other  Quasi- 
Public  Corporations. — "Railroad  corporations  have  peculiar 
qualities  which  distinguish  them  from  mere  private  corpo- 
rations, or  other  public  or  quasi-public  corporations,  in  the 
right  of  eminent  domain  to  condemn  lands,  conferred  on  them 
by  charter;  in  the  uses  to  which  their  railroads  may  be  applied 
by  them  as  carriers  of  passengers  and  freight,  receiving  tolls 
or  fares  for  the  same;  in  the  employment  of  steam  power,  a 
dangerous  agency,  in  passing  through  the  State,  and  their 
protection  in  the  careful  use  of  such  agency;  in  the  structure 
of  the  road,  with  its  rails,  cuts,  embankments,  often  built  and 
maintained  at  great  detriment  to  other  property;  in  the  ex- 

15  Railroad  Commissioners  v.  Port-  business  and  contract  against  public 

land  &  Oxford  Central  Rd.  Co.,  63  policy). 

Me.  269,  277,  278,  per  Dickinson,  J.  A  railroad  corporation  is  created 

(railroads  as  quasi-corporations);  see  for  public  purposes,  "  performs  pub- 

also  Eckington  &  Soldiers'  Home  Ry.  lie    duties    and    exercises    delegated 

Co.  v.  McDevitt,  191  U.  S.  103,  114,  sovereign  rights  for  that  purpose  and 

48  L.  ed.  112,  24  Sup.  Ct. ,  per  is  in  its  nature  a  public  corporation 

Fuller,  C.  J.;  Pueblo  &  Arkansas  Val-  even  though  its  shares  are  owned  by 

ley  Rd.  Co.  v.  Taylor,  6  Colo.  1,  45  private  individuals;"  they  are  quasi- 

Am.  Rep.  512;  Kotz  v.  Illinois  Cent,  public  and  stand  by  themselves  in  a 

Ry.  Co.,  188  111.  578,  59  N.  E.  240.  distinct  class;  "The  entire  duty  they 

"  A  railroad  company  is  a  quasi-  perform  is  a  public  one,  and  a  charter 

public  corporation,  and  owes  certain  from  the  lawmaking  power  is  neces- 

duties  to  the  public,  among  which  are  sary  to  its  exercise.     *     *     *     The 

the  duties  to  afford  reasonable  facili-  road,  once  constructed,  is,  instanter, 

I  ies  for  the  transportation  of  persons  and  by  mere  force  of  the  grant  and 

and  property  and  to  charge  only  rea-  law,  embodied  in  the  governmental 

sonable     rates     for     such     service."  agencies  of  the  State  and  dedicated  to 

Chicago,  Milwaukee  &  St.  Paul  Ry.  public  use."    Talcott  V.  Township  of 

Co.  v.  Wabash,  St.  Louis  &  Pac.  Ry.  Pine  Grove,   1  Flipp.    (U.  S.  C.  C.) 

Co.,  61  Fed.  993,  997,  9  C.  C.  A.  659,  120,  143,  144,  Fed.  Cas.  No.  13,735, 

per  Caldwell,  C.  J.  (a  case  of   pooling  per  Emmons,  Cir.  J. 

196 


CORPORATIONS    CONTINUED  §§    102,    103 

tent  of  the  road,  often  through  several  counties  or  across  the 
State;  in  the  depots,  freight  houses,  wharves,  and  the  great 
accumulation  of  property  at  the  termini  and  other  points  on 
the  line  of  the  railway.  Canals  have  some  of  the  same  pe- 
culiarities in  the  construction  and  maintenance  of  their  water- 
ways. These  characteristics,  which  so  clearly  distinguish  them 
from  other  corporations,  make  it  almost  a  necessity  that 
they  should  form  a  class  by  themselves."  16 

§  102.  Railroad— Public  Use.— The  business  of  a  railroad 
company  is  affected  with  a  public  use,  so  that  the  power  of 
taxation  may  be  invoked  to  aid  in  the  construction  of  the 
road.17  And  to  the  extent  of  such  use  the  company's  business 
is  subject  to  legislative  regulations.18  "That  a  railroad  is  for 
public  use,  though  granted  to  a  private  company,  has  been 
decided,  so  far  as  we  are  informed,  by  every  tribunal  where 
the  question  has  been  made,  and  recognized,  by  the  silent  ac- 
quiescence of  all  concerned,  in  this  State."  19 

§  103.  Railroad — Machine  for  Unloading  Coal— Branch 
Railroad  Track— Public  Use. — A  machine  used  for  unloading 
coal  from  cars  into  boats  is  devoted  to  a  public  use,  where  it  is 
part  of  the  terminal  facilities  and  of  the  entire  plant  of  the 
railroad  company  and  necessary  for  the  successful  prosecution 
of  its  business,  and  that  of  a  coal  transfer  company  even 
though  constructed,  owned  and  maintained  jointly  by  both 
companies,  and  the  grant  to  one  shipper  of  coal  of  the  exclu- 

18  State    Board    of    Assessors    v.  18  Charlotte,  Columbia  &  Augusta 

Central    R.  R.  Co.,  48  N.  J.  L.  146,  Rd.  Co.  v.  Gibbes,  142  U.  S.  386,  393, 

289,  4  Atl.  578,  per  Scudder,  J.    See  35  L.  ed.  1051,  12  Sup.  Ct.  255,  per 

note  to  §  99,  herein.  Field,  J. 

17  Northern  Pac.  R.  Co.  v.  Roberts,  "The  building  and  running  of  a 
42  Fed.  734,  31  Am.  &  Eng.  Corp.  railroad  for  public  use  are  of  public 
Cas.  642.  See  Estill  County  v.  right,  and  require  legislative  sane 
Embry,  144  Fed.  913;  State  ex  rel.  tion."  McGregor  v.  Erie  Ry.  Co.,  35 
Arkansas  Southern  Rd.  Co.  v.  N.  J.  L.  89,  97,  per  Bedle,  J. 
Knnwles  (La.),  41  So.  439;  State  v.  »  Enfield  Toll  Bridge  Co.  v.  Hart- 
Board  of  Commrs.  of  Clinton  County  ford  &  New  Haven  Rd.  Co.,  17  Conn. 
(Ind.),  76  N.  E.  986  40,  58,  per  Williams,  Ch.  J. 

197 


§    104  NATURE   OF   VARIOUS 

sive  use  of  such  machine,  constitutes  an  unlawful  discrimina- 
tion.20 The  decisive  tests  as  to  whether  a  branch  railroad  track 
is  for  public  or  private  purposes  are  these:  Is  the  track  to  be 
open  to  the  public,  on  equal  terms  to  all  having  occasion  at 
any  time  to  use  it,  so  that  all  can  demand  that  they  be  served 
without  discrimination?  If  so,  and  the  track  is  subject  to 
governmental  control,  under  general  laws,  as  are  the  main 
lines  of  a  railroad,  then  the  use  is  public,  and  the  case  a  proper 
one  for  the  exercise  of  the  right  of  eminent  domain.21 

§  104.  Railroads  as  Public  Utilities— Public  Service  Com- 
missions Law— Public  Utilities  Act.22— Commercial  railroads 
may  be  recognized  as  public  utilities,  as  well  as  private  enter- 
prises. Extensive  rights  and  franchises  have  been  conferred 
upon  them,  including  the  right  to  invoke  the  power  of  eminent 
domain;  they  have  also  had  imposed  upon  them  duties  they 
cannot  avoid,  one  of  which  is  that  they  shall  serve  the  public 
without  unjust  discrimination,  but,  with  the  exception  of 
those  duties  which  such  carrier  owes  to  the  public,  it  has  com 
plete  dominion  over  its  property  as  well  as  every  other  owner 
Under  the  Public  Service  Commissions  Law  of  New  York,  the 
term  "railroad  when  used  in  that  act,"  includes  every  railroad, 
other  than  a  street  railroad,  by  whatsoever  power  operated 
for  public  use  in  the  conveyance  of  persons  or  property  for 
compensation,  with  all  bridges,  ferries,  tunnels,  switches,  spurs, 
tracks,  stations  and  terminal  facilities  of  every  kind  used, 
operated,  controlled  or  owned  by  or  in  connection  with  any 
such  railroad."24  The  same  law  also  provides  that:  "The 
term  'railroad  corporation,'  when  used  in  this  act,  includes 
every  corporation,  company,  association,  joint-stock  associa- 

20  Youghiogheny  &  Ohio  Coal  Co.        22  See  §  59,  herein. 

v.  Erie  Ry.  Co.,  24  Ohio  Cir.  Ct.  Rep.        23  Memphis    News    Pub.     Co.     v. 
289.  Southern  Ry.  Co.,  110  Tenn.  684,  75 

21  Ulmer  v.  Lime  Rock  Rd.  Co.,  98   S.  W.  941,  63  L.  R.  A.  150. 

Me.    579,    587,    57    Atl.    1001.      See        24  Public  Service  Commissions  Law 
Kansas  City,   S.   &  G.   Ry.   Co.   v.   of  N.  Y.,  Laws  1907,  p.  891,  chap. 
Louisiana  Western  R.  Co.,  116  La.    429,  art.  I,  §  2. 
178,  40  So.  627. 
198 


23 


CORPORATIONS    CONTINUED  §    104 

tion,  partnership  and  person,  their  lessees,  trustees  or  receivers 
appointed  by  any  court  whatsoever,  owning,  operating,  man- 
aging or  controlling  any  railroad  or  any  cars  or  other  equip- 
ment used  thereon  or  in  connection  therewith."25  The  Rail- 
road Act  of  Wisconsin,  as  amended  by  the  Public  Utilities  Act, 
provides  that :  "  The  term  '  railroad '  as  used  herein  shall  mean 
and  embrace  all  corporations,  companies,  individuals,  asso- 
ciations of  individuals,  their  lessees,  trustees  or  receivers  (ap- 
pointed by  any  court  whatsoever)  that  now,  or  may  hereafter, 
own,  operate,  manage  or  control  any  railroad  or  part  of  a 
railroad  as  a  common  carrier  in  this  State,  or  cars,  or  other 
equipment  used  thereon,  or  bridges,  terminals  or  side  tracks, 
used  in  connection  therewith,  whether  owned  by  such  railroad 
or  otherwise,  and  also  all  streets  and  interurban  railway  com- 
panies, (a)  The  term  'railroad'  whenever  used  herein  shall 
also  mean  and  embrace  express  companies  and  telegraph  com- 
panies. *  *  *  a.  (b)  The  provisions  of  this  act  shall  apply 
to  the  transmitting  and  delivering  of  messages  by  telegraph,  and 
to  all  charges  connected  therewith,  and  to  the  transportation  of 
passengers  and  property  between  points  within  this  State, 
and  to  the  receiving,  switching,  delivering,  storing  and  handling 
of  such  property,  and  to  all  charges  connected  therewith,  and 
shall  apply  to  all  railroad  corporations,  express  companies, 
telegraph  companies,  car  companies,  sleeping-car  companies, 
freight  and  freight-line  companies,  and  to  all  associations  of 
persons,  whether  incorporated  or  otherwise,  that  shall  do 
business  as  common  carriers  upon  or  over  any  line  of  railroad 
within  this  State,  and  to  any  common  carrier  engaged  in  the 
transportation  of  passengers  and  (or)  property  wholly  by 
rail  or  partly  by  rail  and  partly  by  water,  b.  (c)  This  act 
shall  not  apply  to  *  *  *  logging  or  other  private  rail- 
roads not  doing  business  as  common  carriers."  26 

25  Public  Service  Commissions  Law  Italicised   words  and   letters  added. 

ofN.  Y.,  Laws   1907,  p.  891,   chap.  Laws    Wis.,     1907,    pp.    433,    434, 

429,  art.  I,  §  2.  chap,  582,  §  1797-2  a.  b.    The  words 

""Railroad  Act"  of   1905;  Laws  "street    and    electric    railroads    en- 

Wis.,  1905,   p.    552,   chap.  3G2,    §  2.  gaged  solely  in  the  transportation  of 

199 


§§    105,  106  NATURE    OF    VARIOUS 

§  105.  Railroad  Companies  as  Common  Carriers.— Railroad 
corporations  are  common  carriers  and  they  occupy  a  peculiar 
relation  to  the  public  as  invested  with  certain  franchises  for 
the  public  benefit,  and  they  are  bound  to  use  them  with  fair- 
ness and  for  the  common  good.27  They  impliedly  agree  "that 
they  will  fairly  perform  their  duties  to  the  public  as  common 
carriers  of  both  persons  and  property,  under  the  responsibility 
which  that  relation  imposes."  28  But  a  railroad  is  not  a  com- 
mon carrier  where  its  only  duty  is  to  haul  a  special  train  of 
cars  under  a  special  contract,  wherein  the  shipper  assumes  all 
risks  of  accident  and  loads  and  unloads  the  cars  and  the  train 
is  run  on  a  schedule  of  time  to  suit  the  shipper's  convenience.29 

§  106.  Railroad  Carrier's  Business  as  Part  of  Trade  or 
Commerce — Interstate  Commerce.— It  is  declared  by  the  Su- 
preme Court  of  the  United  States  that:  "The  business  of  a 
railroad  carrier  is  of  a  public  nature,  and  in  performing  it  the 
carrier  is  also  performing  to  a  certain  extent  a  function  of  gov- 
ernment which,  as  counsel  observed,  requires  them  to  per- 
form the  service  upon  equal  terms  to  all.  This  public  service, 
that  of  transportation  of  passengers  and  freight,  is  a  part  of 
trade  and  commerce,  and  when  transported  between  States, 
such  commerce  becomes  what  is  described  as  interstate,  and 
comes  to  a  certain  extent,  under  the  jurisdiction  of  Congress 
by  virtue  of  its  power  to  regulate  commerce  among  the  several 
States.  *  *  *  Although  the  franchise  when  granted  by 
the  State  becomes  by  the  grant  the  property  of  the  grantee, 
yet  there  are  some  regulations  respecting  the  exercise  of  such 

passengers  within  the  limits  of  cities,  37  N.  J.  L.  531,  536,  537,  18  Am.  Rep. 

nor  to ' '  preceded  the  word  "  logging  "  754. 

in  the  act  of  1905.  They  are  common  carriers  under 

27  Messenger  v.  Pennsylvania  Rd.  Louisiana  constitution  1898,  art.  272. 
Co.,  37  N.  J.  L.  531.  Kansas   City,   S.    &   G.   Ry.   Co.    v. 

28  Peoria  &  Rock  Island  Ry.  Co.  v.  Louisiana  Western  R.  Co.,  116  La. 
Coal  Valley  Mining  Co.,  68  111.  489,  178,  40  So.  627. 

494.  29  Chicago,  M.  &  St.  P.  R.  Co.  v. 

They  "are  subject  to  and  bound  by  Wallace,  66    Fed.  506,   14  C.  C.  A. 

the   doctrine    of   common    carriers."  257,  28  U.  S.  App.  589,  30  L.  R.  A. 

Messenger  v.  Pennsylvania  Rd.  Co.,  161. 

200 


CORPORATIONS   CONTINUED  §    107 

grants  which  Congress  may  make  under  its  power  to  regu- 
late commerce  among  the  several  States.  This  will  be  con- 
ceded by  all,  the  only  question  being  as  to  the  extent  of  the 
power.  *  *  *  We  think  it  extends  at  least  to  the  pro- 
hibition of  contracts  relating  to  interstate  commerce,  which 
would  extinguish  all  competition  between  otherwise  compet- 
ing railroad  corporations,  and  which  would  in  that  way  re- 
strain interstate  trade  or  commerce."  30 

§  107.  Railroads  as  Highways.— Railroads  built  under  au- 
thority of  the  law  are  public  highways,31  established  primarily 
for  the  convenience  of  the  people,  and  to  subserve  public  ends, 
and  are  subject  to  governmental  control  and  regulation;  and 
for  these  reasons  the  corporation  owning  it  may,  under  legis- 
lative sanction,  take  private  property  for  a  right  of  way, 
upon  making  just  compensation  to  the  owner.32  "It  is  said 
that  railroads  are  not  public  highways  per  se;  that  they  are 
only  declared  such  by  the  decisions  of  the  courts,  and  that 
they  have  been  declared  public  only  with  respect  to  the  power 
of  eminent  domain.  This  is  a  mistake.  In  their  very  nature 
they  are  public  highways.  It  needed  no  decision  of  courts  to 
make  them  such.  True,  they  must  be  used  in  a  peculiar  man- 
ner, and  under  certain  restrictions,  but  they  are  facilities  for 
passage  and  transportation  afforded  to  the  public,  of  which 
the  public  has  the  right  to  avail  itself."  33  There  is,  however, 
a  clear  distinction  between  the  cases  of  railroads  and  canals, 
and  plank  and  turnpike  roads;  the  occupation  of  the  highway 
by  the  former  being  permanent  and  exclusive,  whereas  the 
latter  are  considered  public  highways,  over  which  every  citi- 
zen has  the  right  to  travel  in  his  own  mode  of  conveyance, 

30  United   States   v.    Joint   Traffic  Kansas  Ry.  Co.,  135  U.  S.  641,  34 

Assoc,  171  U.  S.  505,  570,  19  Sup.  Ct.  L.  ed.  295,  10  Sup.  Ct.  965. 

25,  43  L.  ed.  259,  per  Peckham,  J.  "  Olcott    v.    The    Supervisors,    16 

31Talcott    v.    Township    of    Pine  Wall.    (83   U.   S.)  678,   695,  696,   22 

Grove,  1  Flipp.  (U.  S.  C.  C.)  120,  146,  L.  ed.  382  (per  Strong,  J.,  holding 

Fed.    Cas.    No.     13,735,    per     Em-  that   State   may   impose   a   tax   for 

mons,  Cir.  J.  public  use);  Kansas  City,  S.  &  G.  Ry. 

32  Cherokee    Nation     v.    Southern  Co.  v.  Louisiana  Western  R.  Co.,  116 

201 


§§    108,  109  NATURE   OF   VARIOUS 

the  imposition  of  tolls  being  simply  a  means  of  keeping  them 
in  repair.34  Where,  throughout  an  act  of  Congress,  a  rail- 
road is  referred  to,  in  its  character  as  a  road,  as  a  permanent 
structure,  and  designated,  and  required  to  be,  a  public  high- 
way, the  term  " railroad"  cannot,  without  doing  violence  to 
language,  and  disregarding  long-established  usage  of  legisla- 
tive expressions,  be  extended  to  embrace  the  rolling  stock  or 
other  personal  property  of  the  company.35 

§  108.  Reclamation  Districts.36— Reclamation  districts  are 
declared  to  be  public  corporations,37  and  are  also  said  to  be 
quasi-public  corporations.38 

§  109.  Sleeping-Car  Companies— Palace  Cars.— We  have 
seen  that  sleeping-car  companies  are  embraced  within  the  pro- 
visions of  the  Public  Service  Commissions  Law  of  New  York,39 
and  also  the  Public  Utilities  Act  of  Wisconsin.40  But  it  is  held, 
however,  that  such  a  company  is  not  a  common  carrier,  but 
that  it  rests  under  such  obligations  only  as  are  based  upon 
its  contract  to  furnish  the  accommodations  which  it  offers  to 
the  public  and  is  liable  only  to  the  extent  of  its  breach  thereof.41 

La.   178,  40  So.  627   (under    const.  41  Calhoun  v.  Pullman  Palace  Car 

1898,  art.  272.  Co.  (U.  S.  C.  C),  149  Fed.  546,  549. 

34  Douglass  v.  Boonsborough  Turn-  Examine  Braun  v.  Webb,  65  N.  Y. 
pike  Road  Co.,  22  Md.  219,  85  Am.  Supp.  668,  32  Misc.  243,  aff'g  62 
Dec.  647.  See  also  Oliff  v.  City  of  N.  Y.  Supp.  1037  (where  the  plaintiff 
Shreveport,  52  La.  Ann.  1203,  27  So.  obtained  judgment  in  a  case  where  he 
688.  had  purchased  a  ticket,  been  assigned 

Railroads  and  highways  and  dis-  a  berth  but  it  was  occupied  by  an- 

tinctions  as  to  use  of,  see  McGregor  other  person  and  he  was  refused  its 

v.  Erie  Ry.  Co.,  35  N.  J.  L.  89,  97,  occupancy  by  the  conductor  and  was 

per  Bedle,  J.  compelled  to    sit    all  night  in  a  day 

35  Lake  Superior  &  Miss.  Rd.  Co.  v.  coach);  Pullman's  Palace  Car  Co.  v. 
United  States,  93  U.  S.  442,  23  L.  ed.  King,  99  Fed.  380,  39  C.  C.  A.  573  (in 
965.  this   case  plaintiff  was   sold  accom- 

38  See  §  75,  herein.  modations  in  a  particular  car,  virtu- 

37  People  v.  Williams,  56  Cal.  547.  ally  represented   and  warranted   to 

38  Reclamation  Dist.  v.  Turner,  104  pass  over  a  particular  line,  but  the 
Cal.  334,  37  Pac.  1038.  car  did  not  pass  over  the  line  specified 

39  See  §  74,  herein.  in  the  ticket  and  upon  refusal  to  pay 

40  See  §  104,  herein.  extra  fare  plaintiff  was  ejected,  and 

202 


CORPORATIONS    CONTINUED  §§    110,   111 

A  sleeping-car  company  may  make  reasonable  regulations  re- 
specting the  right  to  a  passage  or  a  berth  on  its  cars,  as  such 
right  of  a  person  is  held  to  be  limited,  and  it  is  a  reasonable 
regulation  which  excludes  those  who  have  infectious  or  con- 
tagious diseases  or  are  insane.42 

§  110.  Stockyards  Company.— A  stockyard  business  is  one 
affected  with  a  public  interest  when  it  is  carried  on  at  a  large 
railroad  and  commercial  center,  and  affords  the  only  available 
market  within  the  city  and  for  an  extensive  territory,  for 
resting,  feeding  and  shipping  of  live  stock.  Such  a  business  is 
also  subject  to  public  control  and  regulation  as  to  the  rates 
charged.43  But  in  Cotting  v.  Kansas  City  Stock  Yards  Com- 
pany,44 wherein  a  statute  defining  certain  duties  in  relation 
to  public  stockyards  and  regulating  all  charges  thereof,  was 
held  unconstitutional  as  denying  a  certain  company  the  equal 
protection  of  the  laws,  in  that  such  enactment  applied  only 
to  that  particular  company  and  not  to  other  companies  or 
corporations  engaged  in  like  business  in  the  State,  the  court 
reviews  the  several  cases  bearing  upon  the  subject  and  says: 
"As  to  those  individuals  who  have  devoted  their  property  to 
a  use  in  which  the  public  has  an  interest,  although  not  engaged 
in  a  work  of  a  confessedly  public  character,  there  has  been 
no  further  ruling  than  that  the  State  may  prescribe  and  en- 
force reasonable  charges."  45 

§111.  Street   Railways— Street   Railway   Companies.— A 

street  railway  is  a  public  utility;  it  is  an  appropriate  and  nec- 
essary method  of  using  the  highway;  and  the  municipalities 
may  permit  them  to  occupy  and  use  portions  of  the  street. 
Such  occupancy  is  in  common  with  that  of  the  general  public.46 

defendant  was  held  liable  for  breach  45  See  §  113,  herein. 

of  contract).  *"  City  of  Detroit  v.  Detroit  United 

42  Pullman  Car  Co.  v.  Kraus  (Ala.),  Ry.,  133    Mich.  608,611,  95  N.  W. 
40  So.  398.  736,  per  Hooker,  C.  J. 

43  Ratcliff  v.  Wichita  Union  Stock-  Definitions    of    street    railroad    or 
yards  Co.,  74  Kan.  1,  86  Pac.  150.  railway    and    street    railway    com- 

44  183  U.  S.   79,  46  L.  ed.   92,   22  panies: 

Sup.  Ct.  30.  United   States:    Williams  v.  City 

203 


§  111 


NATURE    OF   VARIOUS 


Street  railway  companies  are  public  carriers  of  passengers,  and 
are  given  corporate  existence  in  order  that  they  may  be  enabled 


Massachusetts:  Holland  v.  Lynn 
&  Boston  Rd.  Co.,  144  Mass.  425,  427, 
11  N.  E.  674  ("street  railway," 
"railroad  corporation"  and  "rail- 
road   company"    in    statute    means 


Electric  Ry.  Co.,  41  Fed.  556,  557, 
per  Caldwell,  J.  (definition  also  dis- 
tinction between  street  railroad  and 
railroad;  additional  servitude). 

Alabama:     Birmingham     Mineral 

Rd.  Co.  v.  Jacobs,  92  Ala.  187,  200,  9  what;  action  of  tort). 

So.  320,  12  L.  R.  A.  830,  per  Cole-  Michigan:     City    of     Detroit    v. 

man,  J.  (what  street  railroads  are  in-  Detroit  United  Ry.,  133  Mich.  608, 

tended  under  statute  as  to  street  rail-  611,  95  N.  W.  736,  per  Hooker,  C.  J. 

ways,  also  statute  as  to  "railroads"  Minnesota:  Frank  v.  St.  Paul  City 

crossing  each  other;  collision  and  in-  Ry.  Co.,  61  Minn.  435,  20  L.  R.  A. 

jury  causing  death).  208,  63  N.  W.  1099,  52  Am.  St.  Rep. 

California:  Montgomery  v.  Santa  608    ("street    railway,"    "railroad" 

Ana  Westminster  Ry.  Co.,   104  Cal.  and  "railway,"  meaning  of  terms  and 

186,  189,  43  Am.  St.  Rep.  89,  37  Pac.  distinctions);  Carli  v.  Stillwater  St. 

786,    25   L.   R.   A.    654   (a  case   as  Ry.  &  Transfer  Co.,  28  Minn.  373, 

to  abutting  owner's  rights  and  urban  378,  41  Am.  St.  Rep.  290,  10  N.  W. 

servitudes).  205,  per  Clark,  J.  (character,  purpose 

Florida:    Bloxham  v.  Consumers'  and  use  of  street  railways  and  rail- 
Electric  Light  &  St.  Ry.  Co.,  36  Fla.  ways;  distinctions;  additional  servi- 


519,  539,  51  Am.  St.  Rep.  44,  18  So. 
444,  29  L.  R.  A.  507,  per  Liddon,  J. 


tudes). 

Missouri:    Hannah  v.  Metropoli- 


(" railroads"  in  statute  as  including  tan  St.  Ry.  Co.,  81  Mo.  App.  78,  82, 

street  railroads;  street  railroad  means  per  Gill,   J.    (street   railway   defined 

what).  and  "railroad"  distinguished). 

Illinois:  North  Chicago  Electric  New  York:  New  York  Dist.  Ry. 
Ry.  Co.  v.  Peuser,  190  111.  67,  70,  60  Co.,  In  re,  107  N.  Y.  42,  14  N.  E. 
N.  E.  78,  per  Boggs,  C.  J.  (a  case  as  to  187  (underground  street  railroad  is  a 
relative  rights  of  such  corporations  street  railway  within  state  constitu- 
and  of  travelers  on  the  street).  tion,  art.  3,  §  18,  and  general  rail- 
Iowa:  Freiday  v.  Sioux  City  Rapid  road  act  does  not  apply). 
Transit  Co.,  92  Iowa,  191,  60  N.  W.  Oregon:  Thompson-Houston  Elec- 
656,  26  L.  R.  A.  246  (street  railway  trie  Co.  v.  Simon,  20  Oreg.  60,  23 
defined;  does  not  include  an  elevated  Am.  St.  Rep.  86,  25  Pac.  147,  10 
"railway"  under  statute  as  to  "rail-  L.  R.  A.  251  (distinction  as  to  uses 
road"  and  compensation  to  abutting  and  purposes  of  railways  and  street 


owners). 

Maryland:  Park  Tax  Case  (Mayor 
&  City  Council  of  Baltimore  v.  Balti- 


railways  and  character  of  same). 

Pennsylvania:    Heilman  v.  Leb- 
anon &  Annville  St.  Ry.  Co.,  180  Pa. 


more,  Catonsville  &  Ellicott's  Mills  627,  628,  37  Atl.  119  (character  of 
Passenger  Ry.  Co.),  84  Md.  1,  35  Atl.  street  railway  companies;  rights  of 
17,  33  L.  R.  A.  503  (question  whether  abutting  landowners);  Philadelphia, 
certain  company  answered  descrip-  City  of,  v.  McManes,  175  Pa.  28,  33, 
tion  of  street  railway  within  intent  of  34  Atl.  331,  per  Thayer,  P.  J.  (hold- 
laws  imposing  park  tax).  ing  that  a  passenger  railway  in  a 

204 


CORPORATIONS   CONTINUED 


§    HI 


to  provide,  for  convenience  of  the  public,  the  means  of  rapid 
transportation  and  promote  the  public  welfare.47  And  any 
contract  which  disables  a  street  railway  corporation  from 
performing  its  functions,  under  its  franchise,  without  the 
consent  of  the  State,  and  made  to  relieve  the  corporation  of 
the  burden  which  it  has  assumed,  is  void  as  against  public 
policy.48  It  is  declared  that  street  railway  companies  are  not 
endowed  with  the  right  of  eminent  domain,49  and  that  stat- 


park  is  not  a  street  passenger  rail- 
way requiring  consent  of  city  coun- 
cil, cited  in  Massachusetts  Loan  & 
Trust  Co.  v.  Hamilton,  88  Fed.  588, 
591;  Manhattan  Trust  Co.  v.  Sioux 
City  Cable  Ry.  Co.,  68  Fed.  82); 
Rahn  Township  v.  Tamaqua  &  L. 
St.  Ry.  Co.,  167  Pa.  84,  90,  31  Atl. 
472  (necessity  of  consent  of  authori- 
ties). 

Railway  line  operated  in  city  streets 
for  passenger  service,  held  not  a  "  com- 
mercial" railroad  but  a  street  railroad 
possessing  some  unexercised  powers 
not  ordinarily  conferred  on  street 
railway  companies.  State  v.  Duluth 
Gas  &  Water  Co.  (State  v.  Duluth 
St.  Ry.  Co.),  76  Minn.  96,  57  L.  R.  A. 
63,  78  N.  W.  1032. 

Railway  is  not  a  street  railway 
when  it  does  not  limit  its  business  to 
passengers  with  hand  baggage,  but 
engages  in  transportation  of  freight 
(in  its  entire  line  from  town  to  town. 
Spalding  v.  Macomb  &  W.  I.  Ry. 
Co.,  225  111.  585,  80  N.  E.  327. 

Underground  tunnel  railroad  with  a 
large  portion  of  it  under  navigable 
waters  and  also  built  mostly  on 
private  property  is  not  a  street  rail- 
way or  street  surface  railroad.  New 
York  &  Long  Isl.  R.  Co.  v.  O'Brien, 
106  N.  Y.  Supp.  909. 

47  North  Chicago  Electric  Ry.  Co. 
v.  Peuser,  190  111.  67,  70,  60  N.  E.  78, 
per  Boggs,  C.  J. 

"Thompson   v.   Schenectady  Ry. 


Co.,  131  Fed.  577,  579,  citing  Thomp- 
son v.  Schenectady  Ry.  Co.  (Paige  v. 
Same),  178  N.  Y.  102,  70  N.  E.  213. 
This  case  reverses  82  N.  Y.  Supp.  192, 
84  App.  Div.  91,  but  affirms  other 
cases  of  other  complainants  against 
same  defendant,  84  App.  Div.  91. 

49  "  Street  railway  companies  are 
not  endowed  with  the  right  of  eminent 
domain  because  they  do  not  need  it. 
They  are  modern  local  conveniences, 
the  location  and  construction  of 
which  are  subject  to  the  will  of  the 
public  they  are  intended  to  serve. 
This  will  is  expressed  through  the 
local  authorities.  Such  companies 
cannot  force  themselves  into  neigh- 
borhoods where  they  are  not  wanted. 
When  permission  is  given  them  to  oc- 
cupy a  public  street,  they  acquire 
thereby  not  an  exclusive  right  upon 
its  surface,  but  a  right  concurrent 
with  that  of  the  general  public. 
Their  cars  are  a  substitute  for  the 
private  carriage  and  the  public  omni- 
bus. They  must  move  them  along 
their  tracks  upon  the  surface  of  the 
st  reel  to  the  grade  of  which  they  are 
required  to  conform.  They  have  no 
right  to  grade  or  fill  or  in  any  manner 
interfere  with  the  access  to  private 
property  from  the  highway,  or  bo  to 
construct  the  road  as  to  interfere 
with  public  travel,  or  disturb  adja- 
cent land  owners."  Ilcilrnan  v.  Leb- 
anon &  Annville  St.  Ry.  Co.,  180  Pa. 
627,  628,  37  Atl.  119,  per  Williams,  J. 

205 


§    112  NATURE   OF   VARIOUS 

utory  provisions  for  condemnation  of  a  right  of  way  have  little 
or  no  reference  to  street  railways  using  electricity  or  horse- 
power for  local  convenience  and  for  transportation  of  passengers, 
and  the  condemnation  of  private  property  for  a  right  of  way  is 
not  authorized.50 

§112.  Street  Railroad— Street  Railroad  Corporation  — 
Public  Service  Commissions  Law.— The  Public  Service  Com- 
missions Law  of  New  York  provides  that:  "The  term  'street 
railroad,'  when  used  in  this  act,  includes  every  railroad  by 
whatsoever  power  operated,  or  any  extension  or  extensions, 
branch  or  branches  thereof,  for  public  use  in  the  conveyance 
of  persons  or  property  for  compensation,  being  mainly  upon, 
along,  above  or  below  any  street,  avenue,  road,  highway, 
bridge  or  public  place  in  any  city,  village  or  town,  and  includ- 
ing all  switches,  spurs,  tracks,  right  of  trackage,  subways, 
tunnels,  stations,  terminals  and  terminal  facilities  of  every 
kind  used,  operated,  controlled  or  owned  by  or  in  connection 
with  any  such  street  railroad;  but  the  term  'street  railroad,' 
when  used  in  this  act,  shall  not  include  a  railroad  constituting 
or  used  as  part  of  a  trunk  line  railroad  system."  51  Said  law 
also  provides  that:  "The  term  'street  railroad  corporation/ 
when  used  in  this  act,  includes  every  corporation,  company, 
association,  joint-stock  association,  partnership  and  person, 
their  lessees,  trustees  or  receivers  appointed  by  any  court  what- 
soever, owning,  operating,  managing  or  controlling  any  street 

Examine  the  following  cases:  United   Traction    Co.,    206    Pa.    91, 

Illinois:  Suburban  R.  Co.  v.  West  55  Atl.  841. 

Side  El.  R.  Co.,  193  111.  217,  61  N.  E.  Virginia:  Newport  News  &  O.  P. 

1090.  Ry.  &  Electric  Co.  v.  Lake  (Va.),  54 

Indiana:  Carrell  v.  Muncie,  H.  &  S.  E.  328. 

Ft.  W.  Ry.  Co.  (Ind.  App.),  78  N.  E.  so  Thompson-Houston  Electric  Co. 

254.  v.  Simon,  20  Oreg.  60,  10  L.  R.  A. 

New  York:  Adee  v.  Nassau  Elec-  251,  23  Am.  St.  Rep.  86,  25  Pac.  147. 

trie  R.  Co.,  177  N.  Y.  548,  69  N.  E.  See    citations   under   last    preceding 

1120,  aff'g  76  N.  Y.  Supp.'  589,  72  note. 

App.  Div.  404;  Schenectady  Ry.  Co.  51  Public  Service  Commissions  Law 

v.  Peck,  84  N.  Y.  Supp.  759,  88  App.  of  N.  Y.,  Laws  1907,  p.  891,  chap. 

Div.  201.  429,  art.  1,  §  2. 

Pennsylvania:      Hinnershitz     v. 

206 


CORPORATIONS   CONTINUED 


§  113 


railroad  or  any  cars  or  other  equipment  used  thereon  or  in 
connection  therewith."  52 


§  113.  Storage  and  Elevator  Companies.— It  is  decided, 
in  a  case  in  Pennsylvania,  that  a  company  incorporated  to 
transact  a  general  storage  and  elevator  business,  including  the 
right  to  issue  warehouse  receipts,  etc.,  is  not  a  public  but  a 
private  corporation  and  its  real  estate  used  in  the  exercise  of 
its  franchise  is  not  exempt  from  mechanics'  liens.53    But  un- 


5,2  Public  Service  Commissions  Law 
ofN.  Y.,  Laws  1907,  p.  891,  chap. 
429,  art.  1,  §  2. 

53  Girard  Point  Storage  Co.  v. 
Southwark  Foundry  Co.,  105  Pa. 
248.  The  court,  per  Gordon,  J.,  said: 
"From  the  facts  here  stated  it  is 
argued  that  the  Girard  Point  Storage 
Company  is  in  the  nature  of  a  public 
corporation,  and  that  the  general 
public  has  such  an  interest  in  its 
works  as  to  protect  it  from  the  in- 
cumbrance of  a  mechanic's  lien.  It 
cannot  be  denied  but  that  if  this  cor- 
poration bears  the  character  here 
claimed  for  it,  it  cannot  be  thus  dis- 
turbed. The  material  question,  then, 
is,  what  rights  have  the  public  in  and 
upon  this  property  other  than  what  it 
would  have  did  that  property  belong 
to  a  private  individual  or  to  an  un- 
incorporated partnership?  We  un- 
derstand very  clearly  and  distinctly 
the  relation  of  a  turnpike  road,  canal, 
and  railroad  to  the  public.  The  peo- 
ple of  the  commonwealth  have  the 
right  of  way  over  them,  which  right, 
when  occasion  requires,  may  be  exer- 
cised regardless  of  the  will  of  the  cor- 
porations owning  them.  They  are 
highways,  and  the  companies  operat- 
ing them  have  the  right  of  eminent 
domain  conferred  upon  them  only  be- 
cause of  this  direct  interest  which  the 
public  has  in  these  methods  of  transit. 
But  in  the  works  of  the  corporation 


defendant  the  community  at  large 
has  no  other  or  further  interest  than 
it  has  in  the  storehouses  of  private 
individuals.  It  may  receive  the 
grain  of  one  person  and  refuse  that  of 
another,  or  it  may,  at  its  own  will, 
suspend  operations  and  shut  out  the 
public  altogether.  Its  organization  is 
all  that  it  has  received  from  the  pub- 
he,  beyond  this  the  public  has  no 
special  interest  in  it,  and  when  this 
organization  disappears  there  is  noth- 
ing left  of  a  public  character,  or  any- 
thing over  which  the  commonwealth 
has  control.  Very  different  is  the 
case  of  a  turnpike,  a  canal  or  railroad, 
which  remains  for  the  common  use 
after  the  corporation  which  built  it  is 
dissolved,  and  which  the  State  may 
take  possession  of  for  the  public  wel- 
fare. Mr.  Chief  Justice  Thompson, 
in  the  case  of  Foster  v.  Fowler,  10 
P.  F.  S.  27,  has  shown  very  clearly 
the  distinction  between  those  corpo- 
rations in  which  the  public  is  di- 
rectly interested,  and  those  in  which 
it  has  only  an  indirect  interest; 
among  the  latter  he  mentions  manu- 
facturing, coal  and  iron  companies; 
and  he  adds,  that  as  against  such  as 
these  liens  are  enforceable.  Bui  we 
cannot  understand  why  a  company 
organized  for  the  shifting  and  storage 
of  grain  should  occupy,  in  t  his  respect , 
a  position  superior  to  those  thus 
mentioned.     All  are  alike  established 

207 


§    113  NATURE    OF   VARIOUS 

der  a  New  York  decision,  a  statute  fixing  the  maximum  charge 
for  elevating,  receiving,  weighting  and  discharging  grain  and 
making  it  a  misdemeanor  to  violate  the  enactment,  is  not 
violative  of  the  constitutional  guaranty  protecting  private 
property,  but  is  a  legitimate  exercise  of  the  police  power  of 
the  State  over  a  business  affected  with  a  public  interest  and  is, 
therefore,  constitutional,  and  this  applies  to  stationary  ele- 
vators owned  by  individuals  or  corporations,  who  have  ap- 
propriated their  property  to  that  use  and  are  engaged  in  that 
business.54  In  the  United  States  Supreme  Court,  this  statute 
was  held  to  be  a  legitimate  exercise  of  the  police  power  of  the 
State  over  a  business  affected  with  a  public  interest,  that  did 

for  private  purposes,  and  by  them  which  it  arises.  But  it  certainly  does 
the  public  is  at  best  but  incidentally  not  follow  that  because  of  this  public 
benefited.  If,  however,  the  property  interest,  the  property  of  a  private 
and  buildings,  of  every  person  and  person  is  made  public  property,  or 
association  whose  trade  or  business  even  quasi-public  property,  or  that  it 
in  any  degree  advanced  the  common  is  therefore  exempted  from  ordinary 
welfare,  were  exempt  from  the  ordi-  execution  process."  Quoted  in  part 
nary  forms  of  lien  and  execution,  the  in  Twelfth  St.  Market  Co.  v.  Phila- 
collection  of  debts  would  soon  be-  delphia  &  Reading  Term.  Rd.  Co., 
come  so  tedious  and  expensive  that,  142  Pa.  580,  588,  21  Atl.  902,  989, 
in  most  instances,  their  abandonment  per  Thayer,  P.  J. 
would  be  the  better  policy.  Nor  can  54  People  v.  Budd,  117  N.  Y.  1,  26 
we  understand  how  the  case  of  Munn  N.  Y.  St.  R.  533,  22  N.  E.  670,  682, 
v.  Illinois,  94  U.  S.  (4  Otto)  113,  24  5  L.  R.  A.  559,  15  Am.  St.  Rep.  460, 
L.  ed.  77,  can  affect  the  case  in  hand,  two  judges  dissenting.  In  the  pre- 
The  question  there  involved  not  the  vailing  opinion  of  Andrews,  J.  (p.  15), 
rights  of  a  corporation,  but  those  of  a  it  is  said:  "That  no  general  power  re- 
private  person,  and  the  principle  in-  sides  in  the  legislature  to  regulate 
volved  in  the  ruling  of  the  Supreme  private  business,  prescribe  the  condi- 
Court  of  the  United  States  was  that  tions  under  which  it  shall  be  con- 
where  the  owner  of  such  property  as  ducted,  fix  the  price  of  commodities 
a  warehouse,  devotes  it  to  a  use  in  or  services,  or  interfere  with  the  free- 
which  the  public  has  an  interest  he,  dom  of  contract  we  cannot  doubt;" 
in  effect,  grants  to  the  public  an  in-  also  that,  "  we  have  no  hesitation  in 
terest  in  such  use,  and  must,  there-  declaring  that  unless  there  are  special 
fore,  to  the  extent  thereof,  submit  to  conditions  and  circumstances  which 
be  controlled  by  the  public  for  the  bring  the  business  of  elevating  grain 
common  good  as  long  as  he  main-  within  principles  which,  by  the  com- 
tains  that  use,  but  he  may,  at  any  mon  law  and  the  practice  of  free  gov- 
time,  withdraw  this  implied  grant  ernments,  justify  legislative  control 
by  discontinuing  the  business  from  and  regulation  in  the  particular  case, 

208 


CORPORATIONS    CONTINUED  §    114 

not  violate  the  Constitution  of  the  United  States  and  was 
valid.55 

§  114.  Telegraph  and  Telephone  Companies. — Both  the 
telegraph  and  telephone  have  become  not  only  necessary,  but 
almost  indispensable  as  a  vehicle  of  public  intelligence,  and 
for  the  conduct  of  affairs,  business  and  commerce.  They  are 
both  instrumentalities  of  a  public  character,  though  they  exist 
for  private  gain.  Their  operations  in  doing  a  general  business 
is  in  the  nature  of  a  public  employment,  for  they  are  public  or 
quasi-public  servants.  They  undertake  for  a  consideration  to 
transmit  messages,  intelligence  or  communications,  not  ex- 
clusively for  particular  persons,  but  for  all,  for  their  lines  are 
open  alike  to  everyone  who  pays  their  charges,  subject  to 
such  contract  limitations  as  may  legally  exist.  These  corpo- 
rations have  valuable  franchises  conferred  upon  them.  They 
exercise  the  right  of  eminent  domain  by  reason  solely  of  the 
public  nature  of  their  business.  They  must  have  suitable  and 
approved  instruments  and  appliances,  employ  competent  serv- 
ants and  agents  and  skilled  operators,  and  are  held  to  a  high 
degree  of  care,  diligence  and  skill,  adequate  to,  or  commensurate 
with,  their  employment  or  undertaking.  They  are  also  sub- 
ject to  constitutional  and  legislative  control,  and  lawful  po- 
lice regulations.  Telegraph  companies  are  "created  for  pub- 
lic benefit,  endowed  with  special  privileges,  such  as  the  right 
of  eminent  domain,  and  perform  the  most  important  functions 
of  commerce,  supplanting,  in  cases  where  celerity  and  rapid 
transmission  of  intelligence  is  necessary,  the  postal  service  of 
the    government.      Their    business    intimately    concerns    the 

the  statute  of  1888  cannot  be  sus-  Milwaukee   &  St.   Paul   Ry.   Co.    v. 

tained."  Minnesota,  134  U.  S.  418,  33  L.  ed. 

85  Budd  v.  New  York,  143  U.  S.  970,  10  Sup.  Ct.  462,  explained.    See 

517,  12  Sup.  Ct.  468,  36  L.  ed.  247.  §  110,  herein. 

The  case  of  Munn  v.  Illinois,  94  U.  S.        Public    warehouses    are    whal ;    as 

113,  24  L.  ed.  77,  was  reviewed  and  embracing  "all  warehouses,  elevators 

adhered    to,    and    its   application    in  and  granaries,"  etc.,  under  statute, 

decided  ill  the  state  courts  eon-  .see  State  ex  rel.  Wood  v.  Smith,  114 

eidered.     The    decision    in    Chicago,  Mo.  180,  21  S.  W.  493. 

14  200 


§    114  •  NATURE   OF   VARIOUS 

public,  and  on  this  account  the  government  assumes  and  has 
the  right  to  regulate  their  business  so  as  to  insure  impartiality 
of  service,  and  prevent  the  exaction  of  unreasonable  tolls. 
Many  and  varied  interests  are  dependent  upon  them.  From 
their  exceptional  position,  it  is  in  their  power,  by  a  corrupt  use 
of  their  knowledge  and  information,  to  reap  unconscionable 
advantage  in  the  marts  of  trade,  or  by  their  negligence  entail 
ruin  and  disaster  upon  individuals  and  communities.  *  *  * 
Their  duty  springs  not  alone  *  *  *  from  contract,  but 
is  the  result  of  the  character  of  their  business,  and  the  laws 
regulating  them."  Again,  "A  telegraph  company  is  a  quasi- 
public  corporation — private  in  the  ownership  of  its  stock,  but 
public  in  the  nature  of  its  duties.  It  has  all  the  powers  of  a 
private  corporation,  such  as  a  separate  legal  existence,  per- 
petual succession  and  freedom  from  individual  liability;  and 
possesses  also  in  addition  thereto,  the  extraordinary  privi- 
leges which  under  our  constitution  can  be  exercised  only  by 
such  corporations  as  are  organized  for  a  public  purpose,  and 
then  only  when  necessary  for  the  proper  fulfillment  of  such 
purpose.  Among  the  extraordinary  privileges  enjoyed  by  such 
corporations  is  the  condemnation  of  private  property,  which 
can  never  be  taken  for  a  private  purpose.  The  acceptance  of 
such  privileges  at  once  fixes  upon  the  corporation  the  indelible 
impress  of  a  public  use.  A  telegraph  company  is  essentially 
public  in  its  duties.  Without  such  public  duties  there  would 
be  neither  reason  for  its  creation  nor  excuse  for  its  continued 
existence.  In  fact,  being  the  complement  of  the  postal  serv- 
ice, it  is  one  of  those  great  public  agencies  so  important  in 
its  nature  and  far-reaching  in  its  application  that  some  of  our 
wisest  statesmen  have  deemed  its  continued  ownership  in 
private  hands  a  menace  to  public  interests."  That  a  telegraph 
company  owes  certain  duties  to  the  public  which  are  not  de- 
pendent upon  personal  contract  but  are  imposed  by  operation 
of  law,  is  illustrated  by  the  case  of  receiving,  transmitting  and 
delivering  telegrams  where  the  company  cannot  insist  upon  a 
personal  contract  contrary  to  its  usual  custom  or  contrary  to 
public  policy,  so  the  failure  to  promptly  deliver  a  telegram  is 
210 


CORPORATIONS  CONTINUED       §§  115,  116 

not  only  a  breach  of  contract  but  a  failure  to  perform  a  duty 
which  the  company  as  a  servant  of  the  people  is  under  obli- 
gation to  perform.  A  telephone  company  organized  to  estab- 
lish and  maintain  a  public  telephone  system  for  the  purpose 
of  furnishing  telephone  communication  between  its  subscribers 
and  which  under  the  statute  of  its  incorporation  has  the  right 
of  eminent  domain  is  organized  for  a  public  purpose.  Its 
business  is  of  a  public  character  and  it  is  a  quasi-public  corpo- 
ration. It  depends  upon  the  public  for  its  support  and  the 
public  depends  upon  it  for  its  accommodations.56 

§  115.  Trustees — Company  Incorporated  as — Trustees  of 
Poor. — A  company,  incorporated  as  the  trustees  of  a  fund, 
with  the  power  and  duty  of  investing  it  and  appropriating  its 
income  to  the  public  schools  of  a  town,  is  a  private  and  not  a 
public  corporation.  Such  a  corporation  can  hold  and  enjoy 
their  rights  and  privileges  under  their  charter  independent  of 
legislative  control  or  interference  within  the  constitutional 
provision  against  passing  laws  impairing  the  obligation  of 
contracts.57    Trustees  of  the  poor  are  a  public  corporation.58 

§  116.  Turnpike  Companies— Toll  Roads.— A  turnpike  com- 
pany, in  which  the  State  holds  stock,  is  not  a  public  corpora- 
tion, within  a  statute  which  exempts  from  executions  "a 
county,  township,  or  other  public  corporate  body."  59    Under 

ift  Joyce  on  Electric  Law  (2d  ed.),  that  the  character  of  the  corporation 
§  14,  and  note.  cannot  depend  upon  the  quantity  of 
To  what  extent  telegraph  and  tele-  the  stock  held  by  the  commonwealth, 
phone  companies  are  common  carriers,  so  that  if  this  case  comes  within  the 
see  Joyce  on   Elect.   Law   (2d  ed.),  exception,  for  the  same  reason  every 
§§  15,  16,  18-24a,  27,  37c.  corporation   in  which  the  State  re- 
Considered   as   instruments  of   in-  serves  an  interest,  however  trifling. 
terstate    commerce,    see    Joyce    on  must  be  held  to  be  in  the  same  class. 
Electric  Law  (2d  ed.),  §§  42a,  44.  But   on   this    construction,    the   act 
"  Yarmouth  v.  North  Yarmouth,  which  is  remedial,  would  be  merely  a 
34  Me.  411,  56  Am.  Dec.  666.  dead  letter,  as  there  are  very  few  cor- 

58  Governor  to  Use  of  Trustees  v.  porations,  if  any,  in  which  the  State 
Gridley,  1  Walk.  (1  Miss.)  328.  does  not  hold  some  stock,  or  in  which 

59  Turnpike  Co.  v.  Wallace,  8  they  have  not  some  pecuniary  inter- 
Watts  (Pa.),  316.     "It  is  very  clear  est.      Besides,    the    act    applies    to 

211 


§§    117,  118  NATURE   OF   VARIOUS 

a  California  decision  no  authority  is  vested  in  a  board  of  county 
supervisors  to  grant  a  franchise  to  collect  tolls  upon  a  free 
public  highway,  but  the  power  of  such  board  is  limited  to  regu- 
lating the  collection  of  tolls  upon  toll  roads  only.60  The  pay- 
ment of  toll  under  a  turnpike  franchise  cannot  be  evaded  by 
constructing  a  road  solely  for  that  purpose.61 

§  117.  Turnpike  Road  as  Highway.— "  A  road  constructed 
and  supported  by  a  turnpike  corporation  differs  in  no  essential 
characteristic  from  a  common  highway,  established  and  sup- 
ported by  a  town,  a  borough,  or  a  city.  Their  origin  and  ob- 
jects are  identical.  Both  emanate  from  the  same, supreme 
power,  acting  through  the  legislature,  the  courts,  or  other 
depositaries  of  authority  designated  by  the  laws.  Both  are 
called  into  existence,  and  supported,  to  subserve,  in  exactly 
the  same  way,  the  public  necessities  and  convenience,  and 
both  alike  are  intended  to  endure  for  an  indefinite  period,  and 
so  long  as  that  convenience  requires  or  that  necessity  exists."  62 
That  a  turnpike  road  is  a  public  highway  constructed  by  virtue 
of  public  authority  and  for  public  purposes,  is  definitely 
settled  in  Pennsylvania.  Such  a  road  is  for  the  use  of  every 
person  desiring  to  pass  over  it  on  payment  of  the  toll  estab- 
lished by  law.  If  the  charter  of  the  company  is  forfeited,  or 
the  corporation  abandons  the  road,  such  road  continues  to 
be  a  public  highway.  The  corporation  is  the  agent  of  the 
State  for  the  purpose  of  constructing  the  road,  which  is  a  part 
of  the  system  of  public  highways  of  the  State.63 

§  118.  Waterworks. — A  franchise  to  construct  waterworks 
can  be  conferred  only  through  direct  or  delegated  authority  from 
the  State,  and  it  is  quasi-public  in  its  nature.64   So  a  corporation 

banks,    as   well    as   other    corporate  61  Hydes    Ferry   Turnpike    Co.    v. 

bodies.    In  all  of  these  the  State  has  Davidson  County,  91  Tenn.  291,  18 

a  deep  interest,  and  in  many  holds  S.  W.  626. 

stocks   to   a   large   amount,   with  a  62  State  v.  Maine,  27  Conn.  641,  71 

nower  to  appoint  a  portion  of  the  Am.  Dec.  89. 

directors."    Id.,  317,  per  Rogers,  J.  63  Derry  Township  Road,  In  re,  30 

60  Blood  v.  Woods,  95  Cal.  78,  30  Pa.  Super.  Ct.  538,  540,  541. 

Pac.  129.  64  Washburn    Waterworks    Co.    v. 

212 


CORPORATIONS   CONTINUED  §    119 

organized  under  the  general  law  of  Illinois  to  supply  a  village 
with  water  is  a  corporation  engaged  in  an  enterprise,  essentially 
public  in  its  nature.  Its  property  and  its  efforts  are  devoted 
to  a  use  in  which  the  public  has  an  interest.  Its  corporate  ex- 
istence is  granted  to  enable  it  to  serve  the  public.  It  is  not  a 
private  corporation,  but  it  is  quasi-public.  The  duty  devolves 
upon  it  to  furnish  water  for  a  reasonable  compensation  and 
without  unjust  discrimination,  and  the  power  resides  in  the 
State,  acting  in  its  sovereign  capacity,  to  enforce  the  per- 
formance of  such  duty.65 

§  119.  Wharf  —  "  Public    Wharf  "  —  Wharfingers.  —  The 

words  "  public  wharf  "  are  not  used  in  the  Michigan  statutes  as  a 
term  to  indicate  anything  anolagous  to  any  public  use,  like 
that  of  highways,  and  the  wharves  in  the  city  of  Detroit  are 
not  highways  and  may  be  leased.66  But  a  wharf  may  be  so 
located,  and  so  connected  with  public  highways  as  to  consti- 
tute the  only  means  of  access  to  navigable  water  for  use  of 
the  mediums  of  commerce  navigating  such  waters,  that  it 
becomes  impressed  with  a  public  interest  precluding  its  con- 
version by  a  lessee  into  private  property  to  the  exclusion  of 
the  public,  or  of  other  carriers  desiring  its  use  upon  payment 
of  reasonable  wharfage.67  Wharfingers  are  not  common  car- 
riers where  they  carry  goods  from  their  wharf,  for  wharf  cus- 
tomers only,  except  in  special  cases,  and  they  act  as  lighter- 
men or  carmen.68 

City  of  Washburn,  129  Wis.  73,  80,        6e  Horn  v.  People,  26  Mich.  221, 

108  N.  W.  194,  per  Kerwin,  J.  224.    See  Kemp  v.  Stradley  (Mich.), 

65  Danville  v.  Danville  Water  Co.,  10  Detroit  Leg.  N.  671,  97   N.    W. 

ISO  111.  235,  241,  54  N.  E.  224.  41. 

Whether  such  company  is  a  public        67  Weems  Steamboat  Co.   v.   Peo- 

corporation,  see  Foster  v.  Fowler,  60  pie's  Steamboat  Co.,  141  Fed.  454. 
Pa.  27.  As  to  right  of  exclusive  occupation 

Whether  public  works  include  water-  of  wharf,  and  public  use  thereof,  see 

works,  see  Opinion  of  Justices,  13  Fla.  Thousand  Islands  Steamboat  Co.  v. 

699;    Ellis    v.    Common    Council    of  Visgar,  83  N.  Y.  Supp.  325,  86  A  pp. 

Grand    Rapids,    123    Mich.    567,    82  Div.  126;  The  Davidson  (U.  S.  D.  (.), 

N.  W.  244;  Winters  v.  City  of  Duluth,  122  Fed.  1006. 

82  Minn.  127,  135,  84  N.  W.  788,  per       «8  Chattock  v.   Bellamy,  64  L.  J. 

Collins,  J.,  in  dissenting  opinion.  Q.  R.  (N.  S.)  250. 

213 


120 


SOURCE  OF  FRANCHISE — FEDERAL, 


CHAPTER  VIII. 

SOURCE  OF  FRANCHISE — FEDERAL,  CONSTITUTIONAL  AND  LEGIS- 
LATIVE POWERS. 


120.  National  and  State  Powers — 

Generally. 

121.  Distinction  Between  Limita- 

tions on  Powers  of  Federal 
and  of  State  Governments. 

122.  Grant    of     Franchises — Gov- 

ernmental or  Legislative 
Power — Generally. 

123.  Power  of  Congress  to  Estab- 

lish Corporations — Gener- 
ally. 

124.  Power  of  Congress  to  Grant 

Additional  Franchises. 

125.  Power  of  Congress  Over  Fran- 

chises of  State  Corporation 
—  Interstate  Commerce  — 
Generally. 

126.  Grants  by  Congress — Banks. 

127.  Power    of    Congress — Bridge 

Corporation  —  Bridges  — 
Commerce. 


§  128.  Power  of  Congress  to  Declare 
Bridge  a  Lawful  Structure 
After  Its  Being  Adjudged  a 
Nuisance;  or  After  Injunc- 
tion Suit— Post  Route. 

129.  Power  of  Congress  to  Grant 

Franchise  to  Railroads — 
Interstate  Commerce — The 
Pacific  Railroad  Com- 
panies. 

130.  Power  of  Congress  Over  Terri- 

tories— Telegraph  and  Tel- 
ephone—Savings Institu- 
tion —  Territorial  Powers 
Generally — Irrigation  Com- 
panies. 

131.  Extent  of  Authority  Granted 

by  Post  Roads  Act — Tele- 
graph Companies. 


§  120.  National  and  State  Powers — Generally. — In  a  com- 
paratively recent  case  in  the  United  States  Supreme  Court  it  is 
said:  "In  the  Constitution  are  provisions  in  separate  articles 
for  the  three  great  departments  of  government — legislative, 
executive  and  judicial.  But  there  is  a  significant  difference  in 
the  grants  of  powers  to  these  departments:  The  first  article, 
treating  of  legislative  powers,  does  not  make  a  general  grant 
of  legislative  power.  It  reads:  'Article  I,  section  1.  All  leg- 
islative powers  herein  granted  shall  be  vested  in  a  Congress,' 
etc.;  and  then  in  Article  VIII  mentions  and  defines  the  legis- 
lative powers  that  are  granted.  By  reason  of  the  fact  that 
214 


CONSTITUTIONAL   AND    LEGISLATIVE   POWERS  §    120 

there  is  no  general  grant  of  legislative  power  it  has  become  an 
accepted  constitutional  rule  that  this  is  a  government  of 
enumerated  powers.  In  McCulloch  v.  State  of  Maryland,1 
Chief  Justice  Marshall  said :  '  This  government  is  acknowledged 
by  all  to  be  one  of  enumerated  powers.  The  principle  that  it 
can  exercise  only  the  powers  granted  to  it,  would  seem  too 
apparent  to  have  .required  to  be  enforced  by  all  those  argu- 
ments which  its  enlightened  friends,  while  it  was  depending 
before  the  people,  found  it  necessary  to  urge.  That  principle 
is  now  universally  admitted.'  *  *  *  When  a  legislative 
power  is  claimed  for  the  National  Government  the  question  is 
whether  that  power  is  one  of  those  granted  by  the  Constitu- 
tion, either  in  terms  or  by  necessary  implication.  *  *  * 
As  heretofore  stated,  the  constant  declaration  of  this  court 
from  the  beginning  is  that  this  Government  is  one  of  enu- 
merated powers.  '  The  Government,  then,  of  the  United  States, 
can  claim  no  powers  which  are  not  granted  to  it  by  the  Con- 
stitution, and  the  powers  actually  granted,  must  be  such  as  are 
expressly  given,  or  given  by  necessary  implication.  *  *  * 
The  Government  of  the  United  States  is  one  of  delegated, 
limited  and  enumerated  powers.'  "  2  And  one  of  the  points 
determined  in  that  case  is  that :  In  a  qualified  sense  and  to  a 
limited  extent  the  separate  States  are  sovereign  and  inde- 
pendent, and  the  relations  between  them  partake  something 
of  the  nature  of  international  law.  The  Federal  Supreme 
Court  in  appropriate  cases,  enforces  the  principles  of  that  law, 
and  in  addition  by  its  decisions  of  controversies  between  two 
or  more  States  is  constructing  what  may  not  improperly  be 
called  a  body  of  interstate  law.  It  is  also  held  in  the  same  court 
that:  The  National  Government  is  one  of  enumerated  powers; 
that  a  power  enumerated  and  delegated  to  Congress  is  com- 
prehensive and  complete,  without  other  limitations  than  those 
found  in  the  Constitution  itself;  and  that  to  preserve  the  even 

1  4  Wheat    (17  U.  S.)  316,  405,  4  Ct.  655,  per  Brewer,  J.    See  Downes 
L  ed  579_  v.  Bidwell,  182  U.  S.  244,  21  Sup.  Ct. 

2  Kansas  v.  Colorado,  206  U.  S.  46,  770,  44  L.  ed.  1088. 
81,  82,  84,  87,  51  L.  ed.  956,  27  Sup. 

215 


§  120        SOURCE  OF  FRANCHISE — FEDERAL, 

balance  between  the  National  and  state  governments  and 
hold  each  in  its  separate  sphere  is  the  duty  of  all  courts  and 
pre-eminently  of  that  court.3  It  is  declared  in  an  Iowa  case 
that:  "It  is  fundamental  in  our  system  of  government  that  all 
powers  not  delegated  to  the  United  States  by  the  terms  of  the 
Federal  Constitution  and  its  amendments,  nor  prohibited  by 
it  to  the  States  are  reserved  to  the  States  or  to  the  people.4 
Subject  to  the  authority  thus  expressly  or  by  necessary  in- 
ference delegated  to  the  Federal  government,  the  State  has 
sovereign  legislative  power  over  all  subjects,  except  such  as 
are  withheld  from  it  by  the  constitution  of  the  State  itself."  5 
The  following  principles  have  been  enunciated  by  the  Federal 
Supreme  Court  and  they  are  important  in  this  connection. 
Thus,  it  is  asserted  that:  (a)  The  government  of  the  Union  is 
a  government  of  the  people;  it  emanates  from  them;  its  powers 
are  granted  by  them ;  and  are  to  be  directly  exercised  on  them, 
and  for  their  benefit;  (6)  the  government  of  the  Union,  though 
limited  in  its  powers,  is  supreme  within  its  sphere  of  action, 
and  its  laws,  when  made  in  pursuance  of  the  Constitution,  form 
the  supreme  law  of  the  land;  (c)  there  is  nothing  in  the  Con- 
stitution of  the  United  States,  similar  to  the  articles  of  con- 
federation, which  includes  incidental  or  implied  powers;  (d)  if 
the  end  be  legitimate,  and  within  the  scope  of  the  Constitution 
all  the  means  which  are  appropriate,  which  are  plainly  adapted 
to  that  end,  and  which  are  not  prohibited,  may  constitutionally 
be  employed  to  carry  it  into  effect;  (e)  if  a  certain  means  to 
carry  into  effect  any  of  the  powers,  expressly  given  by  the 
Constitution  to  the  government  of  the  Union,  be  an  appro- 
priate measure,  not  prohibited  by  the  Constitution,  the  de- 
gree of  its  necessity  is  a  question  of  legislative  discretion,  not 
of  judicial  cognizance;  (/)  it  is  a  general  rule,  that  in  so  far  as 

3  South  Carolina  v.  United  States,  U.  S.  488,  49  L.  ed.  848,  25  Sup.  Ct. 

199  U.  S.  437,  50  L.  ed. ,  26  Sup.  506. 

Ct.  (a  case  of  internal  revenue,  4  Constitution      United       States, 

liability  of  agents  and  of  sale  of  liq-  amendment  10. 

uors).     See  also  Heff,  Matter  of,  197  5  McGuire  v.  Chicago,  Burlington 

&  Quincy  R.  Co.,  131  Iowa,  340,  349. 
216 


CONSTITUTIONAL   AND    LEGISLATIVE    POWERS  §    120 

laws  passed  by  Congress  are  constitutional  and  are  enacted 
to  carry  out  the  powers  vested  in  the  government  of  the  Uni- 
ted States,  the  States  are  not  empowered  to  retard,  burden  or 
control  the  operations  of  such  constitutional  laws;  6  and  (g) 
the  prohibition  in  the  Constitution  of  the  United  States  against 
the  passage  of  laws  impairing  the  obligation  of  contracts  ap- 
plies to  the  constitution  as  well  as  to  the  laws  of  each  State.7 
The  people  of  the  United  States,  and  of  the  States,  have  agreed 
to  constitutions  as  a  basis  of  government,  and  for  the  security, 
amongst  other  essentials,  of  their  rights,  property  and  common 
welfare.  The  people  have  not,  however,  committed  to  the 
United  States  government  "their  own  complete  functions  of 
legislation  and  administration,"  but  have  intrusted  a  portion 
to  the  separate  States,  "so  that  the  rights  of  the  individual 
shall  be  guarded  from  the  encroachments  of  power."  8  The 
Constitution  and  laws  of  the  United  States,  made  in  pursuance 
thereof,  are,  however,  the  supreme  law  of  the  land; 9  and  every 

•McCulloch  v.  State  of  Maryland,  Light  Co.,  115  U.  S.  650,  29  L.  ed. 

4  Wheat.  (17  U.  S.)  316,  4  L.  ed.  579,  615,  6  Sup.  Ct.  252.  See  §  304,  herein, 
cited  and  quoted  from  on  this  last        8  Pomeroy's  Const.  Law   (3d  ed.), 

point   in   United   States   v.   Rickert,  p.  142,  §  226;  McRoan  v.  Devries,  3 

188  U.  S.  438,  439,  23  Sup.  Ct.  480,  Barb.  (N.  Y.)  198;  State  v.  McCann, 

4S1,  47  L.  ed.  536,  537;  cited  also  in  4  Lea   (72  Tenn.),  9.     See  Sage  v. 

South  Carolina  v.  United  States,  199  New  York,  154  N.  Y.  61,  47  N.  E. 

U.  S.  437,  452,  26  Sup.  Ct.  110,  50  906,  aff'g  41   N.  Y.  Supp.  938,   10 

L.  ed.  261,  where  Brewer,  J.,  says:  App.  Div.  294. 

"The  two  governments.  National  and        9  Const.  U.  S.  art,  6,  par.  2;  Pensa- 

State,    are    each    to    exercise    their  cola   Teleg.   Co.    v.    Western   Union 

power  so  as  not  to  interfere  with  the  Teleg.  Co.,  96  U.  S.  1,  18,  24  L.  ed. 

free  and  full  exercise  by  the  other  of  70S,  1  Am.  Elec.  Cas.  253,  per  Waite, 

its  powers.     This  proposition,  so  far  C.  J.    See  Western  Union  Teleg.  Co. 

as  the  nation  is  concerned,   was  af-  v.  James.   162  U.  S.  650,  40  L.  ed. 

firmed  at  an  early  date,  in  the  great  1105,  16  Sup.  Ct.  934,  6  Am.  Elec. 

case  of   McCulloch    v.    .Maryland,   4  Cas.  863;  New  Orleans  Gas  Light  Co. 

Wheat.  (17  C.  SO  316,  I  L.  ed.  .".70.  v.  Louisiana  Light  &  H.  P.  &  M.  Co., 

*     *     *     No  answer  has  ever  been  L15  U.  S.  672,  6  Sup.  Ct.  252;  Sinnot 

made  to  the  argument  of  Mr.  Chief  v.   Davenport,  22  How.    (63   U.  S.) 

Justice   Marshall,   and   the   proposi-  227, 16  L.  ed.  243;  Dodge  v.  Woolsey, 

tions  there  laid  down  have  become  l8How.  (59U.  S.)  331,  50  L.  ed.  ltd; 

fundamental    in    our    constitutional  Houston  v.  Moore,  5  Wheat.  (18  U. 

jurisprudence."  S.)  49,  5  L.  ed.  31. 

7  New  Orleans  Gas  Co.  v.  Louisiana 

217 


$  121         SOURCE  OF  FRANCHISE — FEDERAL, 

part  of  the  territory  under  the  jurisdiction  of  the  government 
of  the  United  States  is,  irrespective  of  state  lines,  subject  to 
its  operation  and  within  its  protection,  provided  its  acts  are 
within  the  scope  of  its  powers,  and,  in  so  far  as  national  rights 
are  concerned,  which  belong  to  all,  no  part  of  the  country  can 
encroach  upon  another.  Within  this  doctrine  no  State  can,  by 
legislation,  exclude  all  commercial  intercourse  by  telegraph 
between  its  citizens  and  those  of  other  States,  as  the  power  to 
control  and  regulate  interstate  commerce  is  vested  in  Con- 
gress.10 Again,  it  is  declared  that  the  Supreme  Court  are  fully 
sensible,  that  it  is  their  duty,  in  exercising  the  high  powers 
conferred  upon  them  by  the  Constitution  of  the  United  States, 
to  deal  with  great  and  extensive  interests,  such  as  chartered 
property,  with  the  utmost  caution,  guarding,  so  far  as  they 
have  power  to  do  so,  the  right  of  property,  at  the  same  time, 
carefully  abstaining  from  any  encroachment  on  the  rights  re- 
served to  the  States.11 

§  121.  Distinction  Between  Limitations  on  Powers  of 
Federal  and  of  State  Governments.12— The  people,  and 
through  them  the  legislature,  have  supreme  power  in  all  mat- 
ters of  government  where  not  prohibited  by  constitutional 
limitations,  and,  while  the  powers  of  the  Federal  government 
are  restricted  to  those  delegated,  those  of  the  state  government 
embrace  all  that  are  not  forbidden.  And  all  acts  of  the  leg- 
islature are  presumed  to  be  valid  until  it  is  clearly  shown  that 
they  violate  some  constitutional  restriction,  and  questions  re- 
lating to  the  wisdom,  policy  and  expediency  of  statutes  are 
for  the  legislature  and  not  for  the  courts  to  determine.13  So 
the  rule  of  construction  of  the  Constitution  of  the  United  States 
and  of  state  constitutions  differs  in  this,  that  in  the  former, 
the  question  is  one  of  enumerated  powers  granted  to  Congress; 

l0Pensacola  Teleg.  Co.  v.  Western  Bridge,    11    Pet.    (36   U.   S.)   420,   9 

Union  Teleg.  Co.,  96  U.  S.  1,  24  L.  ed.  L.  ed.  773. 

708,  1  Am.  Elec.  Cas.  253,  per  Waite,  12  See  §  137,  herein. 

C.   J.     See  Joyce  on   Electric   Law  13  Boyce,  Ex  parte,  27  Nev.  299,  75 

(2ded.),  §§  65-67.  Pac.  1.     See  also  Wallace  v.  City  of 

11  Charles  River  Bridge  v.  Warren  Reno,  27  Nev.  71,  73  Pac.  528. 

218 


CONSTITUTIONAL    AND    LEGISLATIVE    POWERS  §    122 

in  the  latter,  whether  the  law  is  legislative  in  its  character  and 
whether  it  is  prohibited  to  the  legislature.14  Again,  under  a 
Virginia  decision,  the  state  constitution,  unlike  the  Federal 
Constitution  in  this  particular,  is  a  restraining  instrument, 
and  in  the  matter  of  enacting  laws,  the  legislature  is  omnipo- 
tent, except  in  so  far  as  it  is  restrained  by  the  state  or  Federal 
Constitution,  either  in  express  terms  or  by  necessary  impli- 
cation. Its  enactments,  therefore,  are  always  presumed  to 
be  constitutional,  and  can  never  be  declared  otherwise,  except 
where  they  clearly  and  plainly  violate  the  Constitution.  All 
doubts  are  resolved  in  favor  of  their  validity,  and  in  resolving 
doubts,  the  legislative  construction  put  upon  the  Constitution 
is  entitled  to  great  consideration  though  it  will  not  be  given  a 
controlling  effect.15 

§  122.  Grant  of  Franchises— Governmental  or  Legisla- 
tive Power— Generally.— As  we  have  stated  elsewhere,  a 
franchise  was  early  denned  as  a  royal  privilege  in  the  hands  of 
a  subject;  a  branch  of  the  royal  prerogative  subsisting  in  the 
hands  of  a  subject.16  Being  such  royal  privilege  or  prerogative 
all  franchises  were  derived  from  the  crown  and  subsisted  in  a 
subject  by  grant  from  the  king,  which  grant  was  a  prerequisite 
to  their  existence,  and,  although  it  might  in  some  cases  be  held 
by  prescription,  still  such  prescription  presupposed  a  grant. 
So  that  in  England,  corporations  are  created  and  exist  by  royal 
charter,  by  act  of  Parliament  and  by  prescription.17    Where  a 

14  State  ex  rel.  Henson  v.  Shep-  Co.  v.  Evans,  166  111.  548,  556,  46  N. 
pard,  192  Mo.  497,  507,  91  S.  W.  E.  1083;  People  v.  Haltz,  92  111.  426, 
477.     See  §  217,  herein.  428. 

15  Button  v.  State  Corporation  New  York:  People  v.  Utica  Ins. 
Commission,  105  Va.  634,  54  S.  E.  Co.,  15  Johns.  (N.  Y.)  357,  386,  8  Am. 
769.  Dec.  243,  per  Spencer,  J.  (a  case  of 

ia  See  §  1,  herein.  usurpation  of  franchise  to  carry  on 

1 7  Calif ornia :  Spring  Valley  Water  banking  business  as  a  corporation). 

Works  v.  Schottler,  62  Cal.  69,  106,  Pennsylvania:    Twelfth  St.  Mar- 

per  Thornton,  J.  ket  Co.   v.   Philadelphia  &  Reading 

Georgia:    Franklin   Bridge  Co.  v.  Term.  Co.,  142  Pa.  580,  590,  21  Atl. 

Young  Wood,  14  Ga.  80,  84.  989,  per  Thayer,  J.  (a  case  of  a  public 

Illinois:  Wilmington  Water  Power  market  house  and  right  of  eminent 

210 


§  122 


SOURCE  OF  FRANCHISE — FEDERAL, 


charter  is  granted  by  the  Crown  under  an  act  of  Parliament 
and  privileges  are  granted  which  could  not  be  conferred  by 
the  Crown  except  by  force  of  that  enactment,  it  constitutes  an 
incorporation  of  the  company  "by  act  of  Parliament"  within 
the  terms  of  a  will  authorizing  the  investment  of  trust  funds 
in  stocks  of  companies  incorporated  as  so  directed.18  The 
right  to  establish  a  ferry  was  a  franchise,  and  no  man  could  set 
up  a  ferry  although  he  owned  the  soil  and  landing  place  on 


domain  over,  or  right  of  another  cor- 
poration to  appropriate). 

Wisconsin:  Sellers  v.  Union  Lum- 
bering Co.,  39  Wis.  525,  527,  per 
Ryan,  C.  J. 

See  also  Finch's  Laws  of  Eng.  126 
[38]. 

See  as  to  prescription,  §  133,  herein. 

"  By  the  Civil  Law  no  corporation 
could  be  created  without  the  express 


intended  with  privileges,  which  by 
the  principles  of  the  English  Law 
may  be  granted  by  the  king,  is  qual- 
ified to  create  a  corporation  by  his  or 
her  sole  charter.  *  *  *  When, 
on  the  other  hand,  it  is  intended  to 
establish  a  corporation  vested  with 
powers  which  the  king  cannot  of 
himself  grant,  recourse  must  be  had 
to   an  act  of   Parliament.     *     *     * 


approbation  of  the  sovereign,  after  a  All  the  corporations  which  are  said 
satisfactory  representation  of  its  use-  in  the  English  books  to  have  been 
fulness  and  tendency  to  promote  the    created  by  the  common  law  and  by 


public  good.  *  *  *  In  England, 
it  is  true,  during  the  latter  part  of  the 
Saxon  period  of  its  history,  and  for 
some  time  after  the  Conquest,  the 
power  of  conferring  corporate  priv- 
ileges was  exercised  by  the  nobles, 
within  their  respective  demesnes. 
*  *  *  In  the  time  of  Bracton, 
who  lived  in  the  reign  of  Henry  III, 
and  Edward  I,  the  king's  preroga- 
tive, as  to  the  exclusive  privilege  of 
granting  liberties  and  franchises  in 
general,  seems  to  have  been  fully  es- 
tablished; and  the  absolute  necessity 
of  the  king's  assent  to  the  institu- 
tion of  any  corporation  was  held,  in 
the  reign  of  Edward  III,  to  have 
been  previously  settled  as  clear  law. 
The  method  by  which  the  king's  as- 


prescription,  imply  the  sanction  of 
the  government."  Angell  &  Ames  on 
Corp.  (9th  ed.)  §§  66-69.  See  also 
Sellers  v.  Lumbering  Co.,  39  Wis. 
525,  527,  per  Ryan,  C.  J. 

Formerly  grants  of  royal  franchises 
were  so  common,  that  in  the  Parlia- 
ment held  in  21  Edw.  3,  there  is  a 
petition  from  the  Commons  to  the 
king,  stating  that  franchises  had 
been  so  largely  granted  in  times  past, 
that  almost  all  the  lands  were  en- 
franchised, to  the  great  averisement 
and  estingsement  of  the  common  law, 
and  in  great  oppression  of  the  people; 
praying  the  king  to  restrain  such 
grants  for  the  time  to  come.  To 
which  his  majesty  answered,  that 
the     franchises     which     should     be 


sent  is  expressly  given,  is  either  by    granted  in  the  future  should  be  made 


act  of  Parliament  (of  which  the  royal 
assent  is  a  necessary  ingredient),  or 
by  charter.  *  *  *  The  king  or 
queen  alone,  when  a  corporation  is 

220 


with  good  advisement.    3  Greenleaf's 
Cruise  on  Real  Prop.  *  260. 

18Elve  v.  Boyton  (C.  A.)  [1891], 
1  Ch.  501. 


CONSTITUTIONAL  AND   LEGISLATIVE   POWERS  §    123 

both  sides  of  the  stream,  without  a  charter  from  the  king  or 
a  prescription  time  out  of  mind.  The  franchise  to  establish 
ferries  was  a  royal  prerogative,  and  the  grant  of  the  king  was 
necessary  to  authorize  a  subject  to  establish  a  public  ferry, 
even  on  his  own  premises.19  Although  the  granting  of  fran- 
chises was  a  part  of  the.  prerogatives  of  the  British  Crown,20 
it  is  declared  that  on  the  severance  of  the  colonies  from  Great 
Britian  they  became  vested  in  the  people; 21  and  that  the  com- 
monwealth stands  in  place  of  the  king,  and  has  succeeded  to  all 
the  prerogatives  and  franchises  proper  to  a  republican  govern- 
ment and  those  only,  since  many  branches  of  the  royal  pre- 
rogative would  be  altogether  improper  in  this  country.22  In 
McKim  v.  Odom,23  decided  in  1829,  Bland,  chancellor,  says: 
"Under  the  provincial  government,  corporations  were  framed 
and  called  into  existence,  as  in  England,  either  directly  by  or 
with  the  immediate  sanction  of  the  lord  proprietary  or  the 
monarch.  But  however  they  may  have  been  originated  for- 
merly or  elsewhere,  it  is  certain  that  they  can  now  only  be 
established  here  by  the  authority  of  the  legislature." 

§  123.  Power  of  Congress  to  Establish  Corporations — 
Generally. — The  power  of  establishing  a  corporation  is  not  a 
distinct  sovereign  power  or  end  of  government,  but  only  the 
means  of  carrying  into  effect  other  powers  which  are  sovereign. 
Whenever  it  becomes  an  appropriate  means  of  exercising  any 
of  the  powers  given  by  the  Constitution  to  the  government  of 
the  Union,  it  may  be  exercised  by  that  government.24 

18  People  v.  Budd,  117  N.  Y.  1,  17,  23  3  Bland  (Md.),  407,  417-419. 

18,  26  N.  Y.  St.  R.  533,  22  N.  E.  670,  24  McCulloch  v.  State  of  Maryland, 

682,  per  Andrews,  J.    See  Milhau  v.  4   Wheat.    (17  U.  S.)  316,  4  L.  ed. 

Sharp,  27N.Y.  611,619,  84  Am.  Dec.  579.      Examine    United    States    v. 

314,  per  Selden,  J.    See  §  144,  herein.  Stanford,  70  Fed.  346,  361,  17  C.  C. 

*'  I  inch's  Law  of  Eng.  164.  A.  143. 

21  Milhau  v.  Sharp,  27  N.  Y.  611,  "The  power  of  creating  a  corpo- 
619,  84  Am.  Dec.  314,  per  Selden,  J.  ration,  though  appertaining  to  sov- 

22  Commonwealth  v.  Arrison,  1">  ereignty,  is  not,  like  the  power  of 
Serg.  &  R.  (Pa.)  127,  130,  per  Tilgh-  making  war,  or  levying  taxes,  or 
man,  C.  J.  (a  case  of  information  in  of  regulating  commerce,  a  great  sub- 
the  nature  of  quo  warranto).  stantive     and     independent     power, 

221 


§  124 


SOURCE  OF  FRANCHISE — FEDERAL, 


§  124.  Power   of    Congress   to   Grant   Additional   Fran- 
chises.— It  is  well  settled  that  Congress  has  power  to  grant, 


which  cannot  be  implied  as  incidental 
to  other  powers,  or  used  as  a  means  of 
executing  them.  It  is  never  the  end 
for  which  other  powers  are  exercised, 
but  a  means  for  which  other  ob- 
jects are  accomplished.  *  *  *  The 
power  of  creating  a  corporation  is 
never  used  for  its  own  sake,  but  for 
the  purpose  of  effecting  something 
else.  No  sufficient  reason  is,  there- 
fore, perceived,  why  it  may  not  pass 
as  incidental  to  those  powers  which 
are  expressly  given,  if  it  be  a  direct 
mode  of  executing  them.  But  the 
Constitution  of  the  United  States  has 
not  left  the  right  of  Congress  to  em- 
ploy the  necessary  means,  for  the 
execution  of  the  powers  conferred  on 
the  government,  to  general  reasoning. 
To  its  enumeration  of  powers  is  added 
that  of  making  'all  laws  which  shall 
be  necessary  and  proper,  for  carrying 
into  execution  the  foregoing  powers, 
and  all  other  powers  vested  by  this 
constitution  in  the  government  of 
the  United  States,  or  in  any  depart- 
ment thereof.'  "  The  court  then 
considers  the  meaning  of  the  words 
"necessary  and  proper"  as  used  in 
this  clause  of  the  constitution  and 
concludes  that  it  was  not  intended  to 
"abridge,  and  almost  annihilate  this 
useful  and  necessary  right  of  the 
legislature  to  select  its  means 
*  *  *  for  the  following  reasons: 
1st.  The  clause  is  placed  among  the 
powers  of  Congress,  not  among  the 
limitations  on  those  powers.  2d.  Its 
terms  purport  to  enlarge,  not  to  di- 
minish the  powers  vested  in  the  gov- 
ernment. It  purports  to  be  an  addi- 
tional power,  not  a  restriction  on 
those  already  granted.  *  *  *  Had 
the    intention    been    to    make    this 

222 


clause  restrictive,  it  would  un- 
doubtedly have  been  so  in  form  as 
well  as  in  effect.  The  result  of  the 
most  careful  and  attentive  consid- 
eration bestowed  upon  this  clause  is, 
that  if  it  does  not  enlarge,  it  can- 
not be  construed  to  restrain  the 
powers  of  Congress,  or  to  impair  the 
right  of  the  legislature  to  exercise  its 
best  judgment  in  the  selection  of 
measures  to  carry  into  execution  the 
constitutional  powers  of  the  govern- 
ment. We  admit,  as  all  must  ad- 
mit, that  the  powers  of  the  govern- 
ment are  limited,  and  that  its  limits 
are  not  to  be  transcended.  But  we 
think  the  sound  construction  of 
the  constitution  must  allow  to  the 
national  legislature  that  discretion, 
with  respect  to  the  means  by  which 
the  powers  it  confers  are  to  be  car- 
ried into  execution,  which  will  enable 
that  body  to  perform  the  high  duties 
assigned  to  it,  in  the  manner  most 
beneficial  to  the  people.  Let  the 
end  be  legitimate,  let  it  be  within 
the  scope  of  the  constitution,  and 
all  means  which  are  appropriate, 
which  are  plainly  adapted  to  that 
end,  which  are  not  prohibited,  but 
consist  in  the  letter  and  spirit  of 
the  constitution,  are  constitutional. 
That  a  corporation  must  be  con- 
sidered as  a  means  not  less  usual, 
not  of  higher  dignity,  not  more  re- 
quiring a  particular  specification 
than  other  means  have  been  suffi- 
ciently proved.  *  *  *  Had  it 
been  intended  to  grant  this  power 
as  one  which  should  be  distinct  and 
independent,  to  be  exercised  in  any 
case,  whatever,  it  would  have  found 
a  place  among  the  enumerated  pow- 
ers  of    the   government.      But   be- 


CONSTITUTIONAL  AND   LEGISLATIVE    POWERS      §§    125,  126 

to  a  corporation  created  by  a  State,  additional  franchises,  at 
least  of  a  similar  nature.25 

§  125.  Power  of  Congress  Over  Franchises  of  State  Cor- 
poration—Interstate Commerce— Generally. — Franchises  of  a 
corporation  chartered  by  a  State  are,  so  far  as  they  involve 
questions  of  interstate  commerce,  exercised  in  subordination 
to  the  powers  of  Congress  to  regulate  such  commerce;  and 
while  Congress  may  not  have  general  visitatorial  power  over 
state  corporations,  its  powers  in  vindication  of  its  own  laws 
are  the  same  as  if  the  corporation  had  been  created  by  an  act 
of  Congress.26 

§  126.  Grants  by  Congress— Banks.— Congress  has  power  to 
incorporate  a  bank,  and  the  act  of  April  10,  1816,  c.  44,  to 
"incorporate  the  subscribers  to  the  Bank  of  the  United  States," 
is  a  law  in  pursuance  of  the  Constitution.  The  Bank  of  the 
United  States  has,  also,  constitutionally,  a  right  to  establish 
its  branches  or  offices  of  discount  and  deposit  within  any 
State.27    So  in  the  Legal  Tender  Cases,28  it  is  declared  that: 

ing  considered  merely  as  a  means,  32  L.  ed.  150,  8  Sup.  Ct.  1073;  Uni- 

to  be  employed  only  for  the  purpose  ted  States  v.   Stanford,    161    U.   S. 

of  carrying  into  execution  the  given  412,  431,  16  Sup.  Ct.  ,  40  L.  ed. 

powers,  there  could  be  no  motive  for  751;  Central  Pacific  Rd.  v.  Califor- 

particularly    mentioning    it,"      Mc-  nia,  162  U.  S.  91,  118,  123,  16  Sup. 

Culloch    v.    State    of    Maryland,    4  Ct.  766,  40  L.  ed.  903. 
Wheat.  (17  U.  S.)  316,  411-421,  4  L.        2e  Hale  v.  Henkel,  201  U.  S.  43, 

ed.  579,  per  Mr.  Chief  Justice  Mar-  75,  50  L.  ed.  652,  26  Sup.  Ct.  370. 
shall.  21  McCulloch  v.  State  of  Maryland, 

25  Southern  Pac.  R.  Co.  v.  United  4  Wheat,  (17  U.  S.)  316,  4  L.  ed.  579, 

States,  183  U.  S.  519,  526,  527,  46  L.  cited  in  Slaughter-House  Cases,    16 

ed.  307,  22  Sup.  Ct.  154,  citing  Sink-  Wall.  (83  U.  S.)  36,  64,  21  L.  ed.  394. 

ing  Fund  Cases,  99  U.  S.  700,  727,  25  Decision    discussed    in    Hepburn    v. 

L.    ed.    496;    Pacific    Railroad    Re-  Griswold,  8  Wall.  (75  U.  S.)  603,  629, 

moval  Cases,  115  U.  S.   1,  15,  29  L.  19  L.  ed.  650,  in  dissenting  opinion 

ed.  319,  5  Sup.  Ct.  1157;  California  of    Miller,    Swayne   and    Davis,    J.I. 

v.  Central  Pacific  Rd.,  127  U.  S.  1,  Thai  (  kmgress  has  power  to  establish 

28 110  U.  S.  421,  438,  1 15,  28  L.  ed.    land  (cited  at  beginning  of  last  pre- 
204,  4  Sup.  Ct.   122,  per   Gray,  J.,    ceding  note),  is  considered, 
where  McCulloch  v.  State  <>f  Mary- 

223 


§  126         SOURCE  OF  FRANCHISE — FEDERAL, 

"It  is  equally  well  settled  that  Congress  has  the  power  to 
incorporate  national  banks,  with  the  capacity,  for  their  own 
profit  as  well  as  for  the  use  of  the  government  in  its  money 
transactions,  of  issuing  bills  which  under  ordinary  circum- 
stances pass  from  hand  to  hand  as  money  at  their  nominal 
value,  and  which,  when  so  current,  the  law  has  always  recog- 
nized as  a  good  tender  in  payment  of  money  debts,  unless 
specifically  objected  to  at  the  time  of  the  tender."  29  National 
banks  organized  under  the  act  of  1864  30  are  the  instruments 
designed  to  be  used  to  aid  the  government  in  the  administra- 
tion of  an  important  branch  of  the  public  service;  and  Con- 
gress, which  is  the  sole  judge  of  the  necessity  for  their  creation, 
having  brought  them  into  existence,  the  States  can  exercise 
no  control  over  them,  nor  in  any  wise  affect  their  operation, 
except  so  far  as  it  may  see  proper  to  permit.31 

a  national  bank  considered  as  settled  opinion  of  the  court  in  McCulloch 
in  Veazie  Bank  v.  Fenno,  8  Wall.  v.  State  of  Maryland,  4  Wheat.  (17 
(75  U.  S.)  533,  551,  19  L.  ed.  482,  in  U.  S.)  316,  4  L.  ed.  579,  is  founded 
dissenting  opinion  of  Nelson  &  Davis,  on,  and  sustained  by,  the  idea  that 
JJ.  This  case  holds  that  Congress  the  bank  is  an  instrument  which  is 
having  undertaken,  in  the  exercise  of  'necessary  and  proper  for  carrying 
undisputed  constitutional  power,  to  into  effect  the  powers  vested  in  the 
provide  a  currency  for  the  whole  government  of  the  United  States.' 
country,  may  constitutionally  secure  It  *  *  *  was  created  in  the 
the  benefit  of  it  to  the  people  by  ap-  form  in  which  it  now  appears,  for 
propriate  legislation,  and  to  that  end  national  purposes  only.  It  is,  un- 
may  restrain  by  suitable  enact-  doubtedly,  capable  of  transacting 
ments,  the  circulation  of  any  notes,  private  as  well  as  public  business, 
not  issued  under  its  own  authority,  *  *  *  Why  is  it  that  Congress 
and  it  may  impose  a  tax  on  the  notes  can  incorporate  or  create  a  bank? 
of  state  banks.  See  also  as  to  right  This  question  was  answered  in  the 
to  incorporate  bank,  Magill  v.  Par-  case  of  McCulloch  v.  State  of  Mary- 
sons,  4  Conn.  321.  land,  4  Wheat.  (17  U.  S.)  316,  4  L. 
29  "  The  bank  is  not  considered  as  ed.  579.  It  is  an  instrument  which 
a  private  corporation,  where  the  is  'necessary  and  proper'  for  carry- 
principal  object  is  individual  trade  ing  on  the  fiscal  operations  of  gov- 
and  individual  profit;  but  as  a  public  ernment."  Osborn  v.  United  States 
corporation,  created  for  public  and  Bank,  9  Wheat.  (22  U.  S.)  738,  860, 
national  purposes.  *  *  *  It  was  861,  6  L.  ed.  204,  per  Marshall,  C.  J. 
not  created  for  its  own  sake  or  for  30  Act  of  June  13,  1864,  13  Stat.  99. 
private  purposes.  It  has  never  been  31  Farmers'  &  Mechanics'  Nat. 
supposed  that  Congress  could  create  Bank  v.  Dearing,  91  U.  S.  29,  23  L. 
such     a     corporation.       The     whole  ed.  196. 

224 


CONSTITUTIONAL   AND    LEGISLATIVE    POWERS 


§  127 


§  127.  Power  of  Congress — Bridge  Corporation — Bridges 
— Commerce. — Congress,  under  the  power  to  regulate  com- 
merce among  the  States,  may  create  a  corporation  to  build  a 
bridge  across  navigable  water  between  two  States,  and  to  take 
private  lands  for  the  purpose,  making  just  compensation 
therefor.32  And  it  can  exercise  this  power  without  the  consent 
of  any  State.33  So  the  act  of  July  11,  1890,  c.  669,  to  incorpo- 
rate the  North  River  Bridge  Company,  and  to  authorize  the 
construction  of  a  bridge  across  the  Hudson  River  between  the 
States  of  New  York  and  New  Jersey,  is  constitutional.34  And 
the  act  approved  June  16,  1886,  authorizing  the  construction 
of  a  bridge  across  Staten  Island  Sound,  known  as  "Arthur 
Kill"  is  within  the  power  of  Congress  to  regulate  commerce 
and  is  valid.35  Congress  has  power  also  to  determine  the  lo- 
cation, plan,  and  mode  of  construction  of  railroad  bridges.36 

782;  United  States  v.  Cincinnati  & 
Muskingum  Valley  Ry.  Co.,  134  Fed. 
353,  67  C.  C.  A.  335.  See  Missouri 
v.  Illinois  (Chicago  Drainage  Case), 
200  U.  S.  496,  50  L.  ed.  572,  26  Sup. 
Ct.  268,  per  Holmes,  J.,  discussing 
the  Wheeling  Bridge  Case. 

Maine:  State  v.  Leighton,  83  Me. 
419,  22  Atl.  380. 

Maryland:  Baltimore  v.  Stole,  52 
Md.  435. 

Michigan:  Dietrich  v.  Schreman, 
117  Mich.  298,  75  N.  W.  618. 

New  Hampshire:  Dover  v.  Ports- 
mouth Bridge,  17  N.  H.  200. 

New  York:  People  v.  Kelly,  76 
N.  Y.  475. 

As  to  Post  Roads  Act;  Commerce; 
Bridges;  Submarine  Cables,  see  Joyce 
on  Klcctric  Law  (2d  ed.),  §§  68-83. 

34  Luxton  v.  North  River  Bridge 
Co.,  153  U.  S.  525,  14  Sup.  Ct.  891, 
38  L.  ed.  808. 

"  Stockton  v.  Baltimore  &  N.  Y. 
R.  Co.,  32  Fed.  9,  1  Inters.  Comm. 
Rep.  ill. 

39Tcx;irk:ui:i  <V-  Ft.  Smith  Ry.  Co. 
v.  Parsons,  7  1  Fed.  11 1. 

225 


32  Luxton  v.  North  River  Bridge 
Co.,  153  U.  S.  525,  14  Sup.  Ct.  891, 
38  L.  ed.  808.  See  §§  145,  152, 
herein. 

33  Decker  v.  Baltimore  &  N.  Y.  R. 
Co.,  30  Fed.  723,  1  Inters.  Comm. 
Rep.  434.  See  also  Stockton  v. 
Baltimore  &  N.  Y.  R.  Co.,  32  Fed. 
9,  1  Inters.  Comm.  Rep.  411. 

As  to  powers  of  Congress  and  of 
the  States  as  to  bridges,  see  the  fol- 
lowing cases: 

United  States:  Montgomery  v. 
Portland,  190  U.  S.  89,  47  L.  ed.  965, 
23  Sup.  Ct.  852;  Lake  Shore  &  Michi- 
gan Ry.  v.  Ohio,  165  U.  S.  365,  366, 
368,  41  L.  ed.  747,  748,  17  Sup.  Ct. 
357;  Williamette  Iron  Bridge  Co.  v. 
Hatch,  125  U.  S.  1,  31  L.  ed.  629,  8 
Sup.  Ct.  1;  Covington  &  Cincinnati 
Bridge  Co.  v.  Kentucky,  154  U.  S. 
204,  14  Sup.  Ct.  1087,  38  L.  ed.  962; 
Hamilton  v.  Vicksburg,  Shreveport 
&  Pac.  Rd.,  119  U.  S.  281,  30  L.  ed. 
393,  7  Sup.  Ct.  206;  Miller  v.  Mayor 
of  New  York,  109  U.  S.  385,  3  Sup. 
Ct.  228,  27  L.  ed.  971;  South  Carolina 
v.  Georgia,  93  U.  S.  4,  13,  23  L.  ed. 

15 


§  128         SOURCE  OF  FRANCHISE — FEDERAL, 

The  act  of  congress  of  1866,37  which  authorized  a  bridge  to 
be  constructed  across  the  Missouri  River  at  Kansas  City, 
required  that  the  distance  of  160  feet  between  the  piers  of  the 
bridge,  which  was  called  for  by  the  act,  should  be  obtained  by 
the  measuring  along  a  line  between  said  piers  drawn  perpendic- 
ularly to  the  faces  of  the  piers  and  the  current  of  the  river; 
and  as  such  a  line  drawn  between  the  piers  of  the  bridge  of 
the  plaintiff  in  error  measured  only  153  feet  and  a  fraction  of 
a  foot,  instead  of  the  required  160  feet,  it  was  held  that  it  was 
not  a  lawful  structure  within  the  meaning  of  that  act.38  If 
Congress  authorizes  the  construction  of  a  railway  bridge  across 
a  navigable  river,  and  prescribes  the  location  and  mode  of  its 
construction,  and  the  bridge  is  built  in  conformity  therewith, 
it  is  then  a  legal  structure;  but  if  it  is  apparent  upon  its  com- 
pletion, owing  to  its  location  or  mode  of  construction,  or 
through  some  change  in  the  channel  of  the  river,  that  such 
bridge  is  in  fact  an  unreasonable  obstruction  to  navigation, 
Congress  can  require  it  to  be  remodeled  or  to  be  entirely  re- 
moved if  that  is  the  only  remedy.  If  when  constructed  it  is  a 
legal  structure  its  status  cannot  be  charged  by  judicial  action, 
or  by  any  power  short  of  that  which  legalized  it  in  the  begin- 
ning.   And  Congress  may  legalize  a  bridge  after  its  erection.39 

§  128.  Power  of  Congress  to  Declare  Bridge  a  Lawful 
Structure  After  Its  Being  Adjudged  a  Nuisance;  or  After 
Injunction  Suit — Post-Route.40 — Congress  has  power  to  pro- 
vide by  statute  that  a  bridge  is  a  lawful  structure,  and  such 
act  will  be  constitutional,41  although  that  bridge  has,  by  de- 
cision rendered  before  the  said  enactment,  been  held  to  be 
a  nuisance.42    The  prior  judgment,  however,  which  related  to 

37  Act  July  25,  1866,  14  Stat.  244,  A.  Chatfield  Co.  v.  City  of  New 
§  10.  Haven,  110  Fed.  788,  792. 

38  Hannibal  &  St.  Joseph  Rd.  Co.        40  See  §  152,  herein. 

v.   Missouri   River   Packet   Co.,    125  41  Pennsylvania     v.     Wheeling     & 

U.  S.  260,  31  L.  ed.  731,  8  Sup.  Ct.  Belmont  Bridge  Co.,  18  How.  (59  U. 

874.  S.)421,  15  L.  ed.  435. 

39  United  States  v.  Keokuk  &  42  Pennsylvania  v.  Wheeling  & 
Hamilton  Bridge  Co.  (Dist.  Ct.),  45  Belmont  Bridge  Co.,  13  How.  (54  U. 
Fed.  178,  case  is  distinguished  in  E.  S.)  518,  14  L.  ed.  249. 

226 


CONSTITUTIONAL   AND   LEGISLATIVE    POWERS  §    128 

the  abatement  of  the  bridge,  proceeded  upon  the  ground  that 
the  bridge  was  in  conflict  with  the  then  existing  regulations  of 
commerce  by  Congress,  and  was  executory,  depending  upon 
the  bridge  continuing  to  be  an  unlawful  obstruction  to  the 
public  right  of  free  navigation,  but  that  right  having  been  so 
modified  by  the  above-mentioned  act  of  Congress  that  it  no 
longer  constituted  an  unlawful  obstruction,  the  prior  decree 
could  not  be  enforced,  and  the  authority  to  maintain  the 
bridge  existed  from  the  moment  of  said  enactment,  for  the 
authority  then  combined  the  concurrent  powers  of  both  gov- 
ernments, state  and  Federal,  which  are  sufficient.  The  bridges 
concerning  which  this  controversy  arose  were  over  the  Ohio 
River,  and  the  act  of  Congress  declared  them  to  be  lawful 
structures  at  their  then  height  and  position,  and  required  the 
officers  and  crews  of  vessels  navigating  the  Ohio  River  to 
regulate  their  vessels  so  as  not  to  interfere  with  the  elevation 
and  construction  of  said  bridges.43  An  act  of  Congress  is  also 
constitutional  which  provides  that  a  certain  bridge,  thereto- 
fore erected  over  a  river  which  divides  two  States,  "shall  be  a 
lawful  structure,  and  shall  be  recognized  and  known  as  a  post- 
route."  Such  an  enactment  means  not  only  that  the  bridge 
shall  be  a  post-route  but  also  that  as  built,  with  its  abutments, 
piers,  superstructure,  draw  and  height,  it  should  have  the 
sanction  of  law,  and  be  maintained  and  used  in  that  condition, 
and  this  is  so,  even  though  the  statute  is  declared  by  its  title 
to  be  an  act  declaring  the  bridge  "a  post-route."  Such  enact- 
ment also  operates  to  abate  an  injunction  suit,  instituted  prior 
to  the  passage  of  the  act,  to  prevent  erection  of  the  bridge  and 
to  have  it  declared  a  nuisance,  even  though  the  case  was  ready 
for  a  hearing.44 

See   as  to  bridge    as    a  nuisance  as  to   free   navigation   of   the   Ohio 

Joyce    on    Law    of    Nuisances    (ed.  River,    made  between   Virginia  mid 

i,,,  §  274.  Kentucky  with  the  sanction  of  Con- 

43  The   act   was    passed   Aug.    31,  press  when  the  latter  State  was  ad- 

1852,    10  Stat,   at  L.    112,   §§  f>,    7.  mitted  into  the  Union. 
Decree  in  former  case  was  at  May        44  Clinton  Bridge,  The,  10  Wall.  (77 

t.  rm,  1852.     Said  act  was  also  held  I*.  S.)  454,  20  L.  ed.  969. 
not  invalid  by  reason  of  the  compact, 

227 


§  129         SOURCE  OF  FRANCHISE— FEDERAL, 

§  129.  Power  of  Congress  to  Grant  Franchise  to  Rail- 
roads— Interstate  Commerce — The  Pacific  Railroad  Com- 
panies.— That  Congress  has  power  to  construct,  or  to  grant 
franchises  to  individuals  or  corporations  to  Construct,  railroads 
across  the  States  and  Territories  of  the  United  States  is  so 
held  in  relation  to  the  statutes  enacted  by  that  body,  conferring 
franchises  of  the  most  important  character  upon  the  Central 
Pacific  Railroad  Company;  and  the  United  States  Supreme 
Court  declares  upon  this  subject  as  follows:  "  If,  therefore,  the 
Central  Pacific  Railroad  Company  is  not  a  Federal  corporation, 
its  most  important  franchises,  including  that  of  constructing 
a  railroad  from  the  Pacific  Ocean  to  Ogden  City,  were  con- 
ferred upon  it  by  Congress.  It  cannot  be  doubted  that  Con- 
gress, under  the  power  to  regulate  commerce  among  the  sev- 
eral States,  as  well  as  to  provide  for  postal  accommodations 
and  military  exigencies,  had  authority  to  pass  these  laws. 
The  power  to  construct,  or  to  authorize  individuals  or  corpo- 
rations to  construct,  National  highways  and  bridges  from  State 
to  State,  is  essential  to  the  complete  control  and  regulation 
of  interstate  commerce.  Without  authority  in  Congress  to 
establish  and  maintain  such  highways  and  bridges,  it  would 
be  without  authority  to  regulate  one  of  the  more  important 
adjuncts  of  commerce.  This  power  in  former  times  was  ex- 
erted to  a  very  limited  extent,  the  Cumberland  or  National  road 
being  the  most  notable  instance.  Its  exertion  was  but  little 
called  for,  as  commerce  was  then  mostly  conducted  by  water 
and  many  of  our  statesmen  entertained  doubts  as  to  the  ex- 
istence of  the  power  to  establish  ways  of  communication  by 
land.  But  since,  in  consequence  of  the  expansion  of  the  coun- 
try, the  multiplication  of  its  products,  and  the  invention  of 
railroads  and  locomotion  by  steam,  land  transportation  has 
so  vastly  increased,  a  sounder  consideration  of  the  subject  has 
prevailed  and  led  to  the  conclusion  that  Congress  has  plenary 
power  over  the  whole  subject.  Of  course,  the  authority  of 
Congress  over  the  Territories  of  the  United  States,  and  its 
power  to  grant  franchises  exercisable  therein,  are,  and  ever 
have  been,  undoubted.  But  the  wider  power  was  very  freely 
228 


CONSTITUTIONAL    AND    LEGISLATIVE    POWERS  §    129 

exercised,  and  much  to  the  general  satisfaction,  in  the  creation 
of  the  vast  system  of  railroads  connecting  the  East  with  the 
Pacific,  traversing  States  as  well  as  Territories,  and  employing 
the  agency  of  state  as  well  as  Federal  corporations."  45  As  to 
the  Central  Pacific  Company,  it  is  a  corporation  of  California 
recognized  as  such  by  the  acts  of  Congress  granting  it  aid  and 
conferring  upon  it  Federal  franchises,  and  it  was  not  the  object 
of  those  acts  to  sever  its  allegiance  to  the  State  or  transfer  the 
powers  and  privileges' derived  from  it;  nor  did  those  conse- 
quences result  from  the  acceptance  of  the  grant  by  the  corpo- 
ration; nor  is  the  state  franchise  destroyed  by  or  merged  in 
the  right  granted  under  the  acts  of  Congress  so  that  taxation 
by  the  State  of  the  franchise  granted  by  it  is  precluded.  It 
was  also  held  that  the  property  of  a  corporation  of  the  Uni- 
ted States  may  be  taxed  by  a  State,  but  not  through  its  fran- 
chise.46 Again,  the  Union  Pacific  Railway  Company  is,  as  to 
its  road,  property  and  franchises  in  Kansas,  a  corporation 
de  facto  created  and  organized  under  acts  of  Congress;  and  as 
to  the  same  in  Nebraska,  it  is  strictly  and  purely  a  corporation 
deriving  all  its  corporate  and  other  powers  from  acts  of  Con- 
gress. The  Texas  and  Pacific  Railway  Company  is  also  a 
corporation,  deriving  its  corporate  powers  from  acts  of  Con- 

45  California  v.  Pacific  Rd.  Co.,  127  the  United  States?  It  seems  to  me 
U.  S.  1,  39,  40,  32  L.  ed.  150,  8  Sup.  that  the  franchise  to  build,  operate 
Ct.  1073,  per  Bradley,  J.,  citing  Pa-  and  maintain  a  railroad  from  San 
cific  Rd.  Removal  Cases,  115  U.  S.  1,  Francisco  to  a  point  of  junction  with 
14,  18,  29  L.  ed.  319,  5  Sup.  Ct.  1113.  the  Union  Pacific  Railroad  is  a  unit, 

46  Central  Pacific  Rd.  Co.  v.  Cal-  and  that  it  is  utterly  impracticable 
ifornia,  102  U.  S.  91,  40  L.  ed.  903,  16  to  separate  and  sell  so  much  of  that 
Sup.  Ct.  766,  affirmed  and  followed  in  franchise  as  originally  came  from  the 
Southern  Pacific  Rd.  Co.  v.  Califor-  State,  and  leave  intact  that  which 
nia,  162  U.  S.  167,  16  Sup.  Ct.  794,  40  was  derived  from  the  United  States. 
L.  ed.  929.  The  State  cannot  lawfully  do  any- 

"  It  may  be  said  that  the  franchise  thing  to  impair  or  cripple  the  fran- 

which  the  State  may  sell  is  that  which  chises,  rights  and  privileges  derived 

was  granted  by  it.      But  is  the  state  from   the    United   States."     Central 

franchise    80    distinct     and    separate  Pacific  Rd.  v.  California,   162   l".  S. 

from  the  franchise  granted  by  the,  Uni-  91,   165,  40  L.  ed.  903,   16  Sup.  Ct. 

ted  States  thai    it  can  be  sold  sep-  766,    per   Harlan,    J.,    in   dissenting 

arately  from  the  franchise  granted  by  opinion. 

229 


§  129 


SOURCE  OF  FRANCHISE — FEDERAL, 


gross.47    The  United  States  has  also  granted  aid  to  the  Pacific 
railroads  as  well  as  aid  in  developing  the  telegraph  system.48 


47  Pacific  Railroad  Removal  Cases, 
115  U.  S.  1,  5  Sup.  Ct.  1113,  29  L.  ed. 
319. 

48  See  Joyce  on  Electric  Law  (2d 
ed.),  §§  30-37a. 

Lands  which  at  the  time  a  railroad 
grant  attached  by  the  filing  and  ap- 
proval of  the  map  of  definite  location, 
were  within  the  claimed  but  undeter- 
mined limits  of  a  Mexican  grant,  did 
not  pass  to  the  railroad  company  al- 
though within  the  place  limits  of  its 
grant,  and  this  notwithstanding  the 
fact  that  by  the  final  survey  and 
patent  they  were  excluded  from  the 
Mexican  grant.  A  survey  of  the 
Mexican  grant  made  by  the  proper 
officers  at  the  instance  of  the  appli- 
cant and  before  the  railroad  grant 
attached  included  the  disputed  lands. 
The  applicant  did  not  repudiate  the 
survey,  but  sought  a  patent  based 
upon  it.  It  was  in  legal  effect  his 
claim  to  the  lands.  The  government 
not  questioning  the  right  to  have 
such  a  survey  at  the  time  it  was  ap- 
plied for  and  made,  ordered  a  resur- 
vey  on  the  ground  that  the  bound- 
aries shown  in  the  first  survey  were 
incorrect.  The  second  survey  was 
made  after  the  railroad  grant  at- 
tached and  excluded  the  lands,  and 
it  was  held  that  the  lands  were  sub 
judice  at  the  time  the  railroad  grant 
attached  and  were  not  included 
within  it.  Southern  Pacific  Rd.  Co. 
v.  United  States,  200  U.  S.  354,  50 
L.  ed.  512,  26  Sup.  Ct.  298. 

The  acts  of  March  3,  1887,  24  Stat. 
556,  of  Feby.  12,  1896,  29  Stat.  6,  and 
of  March  2,  1896,  29  Stat.  42,  do  not, 
in  providing  for  adjustment  of  rail- 
road land  grants,  amount  to  a  taking 
of  the  railroad  companies'  property 
without  compensation  because  they 

230 


confirm  sales  made  to  bona  fide  pur- 
chasers of  lands  erroneously  pat- 
ented to  railroad  companies  and  re- 
quire such  companies  to  account  for 
and  pay  to  the  government  the 
amounts  received  by  them  from  such 
purchasers  up  to  the  regular  gov- 
ernment price.  Southern  Pacific  Rd. 
Co.  v.  United  States,  200  U.  S.  341, 
26  Sup.  Ct.  296,  50  L.  ed.  507. 

Under  the  act  of  March  3,  1871, 
c.  122,  16  Stat.  573,  the  rights.of  the 
Southern  Pacific  Railroad  Company 
were  subordinate  to  those  of  the 
Texas  Pacific  Railroad  Company. 
When  the  Texas  Pacific  grant  was 
declared  forfeited  by  the  act  of  Feb- 
ruary 28,  1885,  the  forfeiture  did  not 
vest  the  Southern  Pacific  with  the 
lands  forfeited,  but  the  forfeiture 
inured  to  the  benefit  of  the  United 
States.  Southern  Pacific  Rd.  Co.  v. 
United  States,  189  U.  S.  447,  23  Sup. 
Ct.  567,  47  L.  ed.  896. 

The  title  of  the  Southern  Pacific 
Railroad  Company  to  the  lands  in 
controversy  in  this  suit  was  acquired 
by  virtue  of  the  act  of  July  27,  1866, 
14  Stat.  292,  and  the  construction  of 
the  road  was  made  under  such  cir- 
cumstances as  entitle  the  company  to 
the  benefit  of  the  grant  made  by  the 
eighteenth  section  of  that  act.  And 
the  grant  to  the  Southern  Pacific 
and  that  to  the  Atlantic  and  Pacific 
both  took  effect,  and  both  being  in 
prcesenti,  when  maps  were  filed  and 
approved,  they  took  effect  by  rela- 
tion as  of  the  date  of  the  act.  The 
United  States  having  by  the  Forfeit- 
ure Act  of  July  6,  1866,  became  pos- 
sessed of  all  the  rights  and  interests  of 
the  Atlantic  and  Pacific  company  in 
this  grant  within  the  limits  of  Califor- 
nia, had  an  equal  undivided  moiety  in 


CONSTITUTIONAL   AND    LEGISLATIVE    POWERS  §    130 

§  130.  Power  of  Congress  over  Territories— Telegraph  and 
Telephone — Savings  Institution — Territorial  Powers  Gener- 
ally—Irrigation Companies.— While  the  United  States  holds 
country  as  a  Territory  it  has  all  the  powers  both  of  national 
and  municipal  governments,  Federal  and  state;49  its  legisla- 


all  the  odd-numbered  sections  which 
he  within  the  conflicting  place  limits 
of  the  grant  to  the  Atlantic  and  Pa- 
cific Company  and  of  that  made  to 
the  Southern  Pacific  Company  by  the 
act  of  July  27,  1866,  and  the  Southern 
Pacific  Company  holds  the  other 
equal  undivided  moiety  thereof. 
Southern  Pacific  Rd.  Co.  v.  United 
States,  183  U.  S.  519,  46  L.  ed.  307, 
22  Sup.  Ct.  154. 

The  Atlantic  and  Pacific  Railroad 
Company  took  no  title  to  lands  with- 
in the  indemnity  limits  of  its  grant 
until  the  deficiency  in  the  place 
limits  had  been  ascertained  and  the 
company  had  exercised  its  right  of 
selection.  Southern  Pacific  Rd.  Co. 
v.  Bell,  183  U.  S.  675,  46  L.  ed.  383, 

22  Sup.  Ct.  232. 

Examine  further  as  to  public  lands 
and  aid  to  railroads,  Howard  v. 
Perrin,  200  U.  S.  1,  50  L.  ed.  343,  26 
Sup.  Ct.  229;  Northern  Pacific  Ry. 
Co.  v.  Ely,  197  N.  S.  1,  49  L.  ed.  639, 
25  Sup.  Ct.  302;  Ramsey  v.  Tacoma 
Land  Co.,  196  U.  S.  360,  49  L.  ed.  — , 
25  Sun.  Ct.  — ;  Humbird  v.  Avery, 
195  U.  S.  480,  25  Sup.  Ct.  123,  49  L. 
ed.  286;  United  States  v.  Northern 
Pacific  Rd.  Co.,  193  V.  S.  1,  24  Sup. 
Ct.  330,  48  L.  ed.  593,  177  II.  S.  435, 
44  L.  ed.  836,  20  Sup.  Ct.  706;  North- 
em  Pacific  Ry.  Co.  v.  Townsend,  190 
U.  S.  267,  47  L.  cd.  1044,  23  Sup.  Ct, 
671;  Oregon  &  California  Rd.  Co.  v. 
United  States  (No.  3),  190  U.  S.  186, 
47  L.  ed.  1012,  23  Sup.  Ct.  673, 
(No.  2),  189  U.  S.  116,  47  L.  ed.  732, 

23  Sup.  Ct.  620  (No.  1),  189  U.  S. 


103,  47  L.  ed.  726,  23  Sup.  Ct.  615; 
Northern  Pacific  Ry.  Co.  v.  Soder- 
berg,  188  U.  S.  526,  47  L.  ed.  575,  23 
Sup.  Ct.  365;  Nelson  v.  Northern 
Pacific  Ry.  Co.,  188  U.  S.  108,  47  L. 
ed.  406,  23  Sup.  Ct.  302;  United 
States  v.  Southern  Pacific  Rd.  Co., 
184  U.  S.  49,  46  L.  ed.  425,  22  Sup. 
Ct.  285;  Powers  v.  Slaght,  180  U.  S. 
173,  45  L.  ed.  479,  21  Sup.  Ct.  319; 
Hewitt  v.  Schultz,  180  U.  S.  139,  45 
L.  ed.  463,  21  Sup.  Ct.  309;  United 
States  v.  Tennessee  &  Coosa  Rd.  Co., 
176  U.  S.  242,  44  L.  ed.  452,  20  Sup. 
Ct.  — ;  United  States  v.  Oregon  & 
California  Rd.  Co.,  176  U.  S.  28,  44  L. 
ed.  358,  20  Sup.  Ct.  261. 

49  Shively  v.  Bowlby,  152  U.  S.  1, 
48,  38  L.  ed.  331,  14  Sup.  Ct.  548. 
See  §  139,  herein. 

Power  when  ceded  territory  not  made 
part  of  United  States.  In  the  case 
of  Dorr  v.  United  States,  195  U.  S. 
138,  49  L.  ed.  128,  24  Sup.  Ct.  808,  it 
is  held  that  Congress  has  the  right  to 
make  laws  for  the  government  of  Ter- 
ritories, without  being  subject  to  all 
the  restrictions  which  are  imposed 
upon  it  when  passing  laws  for  the 
United  States  considered  as  a  polit  ical 
body  of  States,  and,  until  territory 
ceded  by  treaty  has  been  incorpo- 
rated into  the  United  States,  it  is  to 
be  governed  under  Congress  subject 
only  to  such  constitutional  restric- 
tions upon  its  powers  as  are  appli 
cable  to  the  situation.  See  Downes 
v.  Bidwell,  182  U.  S.  244,  45  L.  ed. 
1048,  21  Sup.  Ct.  770. 

231 


§  130         SOURCE  OF  FRANCHISE — FEDERAL, 

five  powers  over  the  Territories  is  plenary,  subject  to  express 
or  implied  constitutional  limitations,50  and  the  combined 
powers  of  the  general  and  state  governments  are  exercised  by 
Congress  in  its  legislation  for  Alaska.51  So  Congress  in  the 
exercise  of  its  powers  to  regulate  commerce  has  full  authority 
to  grant  rights  of  way  through  the  land  domiciled  by  Indian 
tribes  in  Indian  Territory,  and  where  it  has  exercised  this 
power  by  authorizing  the  Secretary  of  the  Interior  to  grant 
such  rights  of  way  for  the  construction,  operation  and  main- 
tenance of  telephone  and  telegraph  lines,  it  follows  that  none 
of  the  Indian  tribes  could  grant  an  exclusive  right  to  any  one 
company,  and  that  grants  by  such  tribes  were  annulled  by  the 
statutory  provisions.52  An  act  of  Congress,53  which  grants  a 
right  of  way  through  the  Indian  Territory  to  the  Southern  Kan- 
sas Railway  Company,  for  a  railroad,  telegraph  and  telephone 
line,  is  also  a  valid  exercise  of  the  power  of  Congress  to  regulate 
commerce  among  the  several  States  and  with  the  Indian 
tribes.54    Congress  has  also  power  to  grant,  at  its  discretion, 


50  Allen  v.  Reed,  10  Okla.  105,  60  demn  lands  for  such  purposes  (U. 
Pac.  782.  Examine  United  States  v.  S.  Comp.  Stat.  Supp.  1905,  p.  371, 
Binns,  1  Alaska,  553.  act  Feb.  28,  1902,  c.  134,  §§  13,  17, 

51  Allen  v.  Myers,  1  Alaska,  114.  32  Stat,  at  L.  pp.  47,  49);  for  the  reg- 
t2  Muskogee   Nat.    Teleph.    Co.    v.  ulation  of  charges  on  such  telegraph 

Hall,  118  Fed.  382,  385,  55  C.  C.  208,  and  telephone  lines  (U.S.  Comp. 
rev'g  decree  of  U.  S.  Ct.  App.  in  Ind.  Stat.  Supp.  1905,  p.  373,  act  Feb.  28, 
Ty.,  4  Ind.  Ty.  18,  and  aff'g  decree  1902,  c.  134,  §  16,  32  Stat,  at  L.  pp. 
in  United  States  court  in  Indian  Ty.  48,  49);  and  for  dams  across  non- 
Northern  Division,  rendered  April,  navigable  streams  in  that  Territory 
1900.  to  be  used  by  light  and  power  com- 

53  Act  July  4,  1884,  23  Stat.  73,  panies,  to  generate  electric  power, 
c.  179.  light  and  heat.    Act  of  April  26,  1906, 

54  Cherokee  Nation  v.  Southern  c.  1876,  §  25,  Stat.  1905-1906,  Part  1, 
Kansas  Ry.  Co.,  135  U.  S.  641,  34  L.  pp.  146,  147.  Congress  also  provides 
ed.  295,  10  Sup.  Ct.  965.  for  a  telephone  system  on  the  island 

Amongst     the     various     statutes  of  Oahu,  Territory  of  Hawaii     (act 

which  have  been  enacted  by  Congress,  June  20,  1906,  c.  3441,  §  4184,  Stat. 

in  the  exercise  of  its  powers,  are  the  1905-1906,  Part  I,  p.  309),  and  reg- 

following,  which  provide  for  a  right  ulates   telephone   and   other  electric 

of  way  through  Indian  Territory  for  wires   in   the   District   of   Columbia, 

railway,     telegraph     and     telephone  Act  March  3,  1905,  c.  1415,  33  Stat. 

lines  with  the  right  to  take  and  con-  at  L.  pp.  984-986.     See  acts  April  27. 

232 


CONSTITUTIONAL   AND    LEGISLATIVE    POWERS  §    130 

a  charter  to  a  savings  institution  with  its  location  and  domi- 
cile in  Washington  in  the  District  of  Columbia  by  virtue  of 
the  grant  to  it  of  "exclusive  legislation  in  all  cases  whatsoever 
over  the  district."  55  Again,  the  statutes  of  a  Territory  may 
be  approved  or  declared  void  irrespective  of  the  organic 
territorial  act.56  So  an  act  of  Congress  may  require  the  sub- 
mission, to  that  body,  of  territorial  statutes,  and  its  disap- 
proval may  render  them  void,  although  such  statutes  may 
be  presumed  valid  where  there  is  no  disapproval  thereof,  by 
Congress.57  A  statute  of  a  Territory  which  is  approved  by 
Congress  "subject  to  future  territorial  legislation"  cannot  by 
virtue  of  such  proviso  be  repealed  by  the  legislature,  but  the 
latter  is  thereby  authorized  to  enact  such  legislation  as  may 
be  in  furtherance  of  the  main  object  of  the  confirming  and 
approving  act  of  Congress.58  Territorial  statutes,  enacted 
within  the  power  of  a  Territory,  are  not  laws  of  the  United 
States.59  But  the  power  of  eminent  domain  may,  it  is  held,  be 
exercised  by  a  Territory  under  its  organic  law,  when  not  re- 

1904,  c.  1628,  33  Stat,  at  L.  p.  374;  Yellowstone  National  Park  under  cer- 

Rev.    Stat.     §  5263,    p.     1019;    act  tain  conditions,  such  as  permission 

June  20,  1902,  c.  1136,  32  Stat,  at  L.  and    regulations   prescribed   by   the 

pp.   393-395;    act    July  1,    1902,   c.  Secretary  of    War.     Act    March  3, 

1352,  32  Stat,  at  L.  p.  619,  par.   5.  1903,  c.  1007,  §  1,  U.  S.  Comp.  Stat. 

(Tax     on     Telephone     Companies.)  Supp.  1905,  p.  365,  32  Stat,  at   L. 

The  right  of  way  is  also  extended  by  p.  1130.     See  act  Feb.  15,  1901,  c. 

statute  to  electric  power  companies,  372,  31  Stat,  at  L.  790,  U.  S.  Comp. 

through  the  Secretary  of  the  Interior,  Stat.  1901,  p.  1584,  as  to  use  of  other 

upon  the  necessary  public  lands  and  public    parks    and    reservations    for 

forests  of  the   United   States.     Act  electrical  plants,  telephone  and  tel- 

May  14,  1896,  c.  179,  29  Stat,  at  L.  egraph  companies, 

p.   120,  U.  S.  Comp.  Stat.   1901,  p.  "Williams  v.  Cresswell,  51  Miss. 

1573.     And  such  statutes  empower  817, 822. 

the  Edison  Electric  Company  to  oc-  56  Allen  v.  Reed,  10  Okla.  105,  60 

cupy  certain  lands  in  certain  forest  Pac.  782. 

reserves    in    California    for    electric  "Buttron  v.  El  Paso  Northeastern 

power    plants.      Act    May    1,    1906,  Ry.  Co.  (Tex.  Civ.  App.),  93S.  W.676. 

c.  2076,  U.  S.  Stat.  1905-1906,  Part  I,  68  Murphy  v.  Utter,  186  U.  S.  95, 

p.  163.    See  act  Jan.  18,  1897,  c.  61,  46  L.  ed.  1070,  22  Sup.  Ct.  776. 

29  Stat,  at  L.  489,  U.  S.  Comp.  Stat.  5e  Moran,  Ex  parte,  144  Fed.  594, 

1901,  p.  3029.    The  use  of  electricity  75  C.  C.  396;  s.  c,  203  U.  S.  103,  51 

is  also  allowed  to  private  parties  in    L.  ed. ,  27  Sup.  Ct. . 

233 


§  131        SOURCE  OF  FRANCHISE — FEDERAL, 

stricted  by  the  Constitution  and  laws  of  the  United  States.60 
The  provisions  of  the  corporation  laws  of  the  Territory  of 
New  Mexico  relating  to  the  formation  and  rights  of  irrigation 
companies  are  not  invalid  because  they  assume  to  dispose  of 
property  of  the  United  States  without  its  consent.  By  the 
acts  of  1866  and  1877,61  Congress  recognizes  as  respects  the 
public  domain,  and  so  far  as  the  United  States  is  concerned, 
the  validity  of  the  local  customs,  laws  and  decisions  in  respect 
to  the  appropriation  of  water,  and  granted  the  right  to  ap- 
propriate such  amount  of  water  as  might  be  necessarily  used 
for  the  purpose  of  irrigation  and  reclamation  of  desert  land, 
part  of  the  public  domain,  and  as  to  the  surplus,  the  right  of 
the  public  to  use  the  same  for  irrigation,  mining  and  manu- 
facturing purposes  subject  to  existing  rights.  The  purpose  of 
Congress  to  recognize  the  legislation  of  Territories  as  well  as 
of  States  in  respect  to  the  regulation  of  the  use  of  public  water 
is  evidenced  by  the  act  of  March  3,  1891,  26  Stat.  1095.  The 
statute  of  New  Mexico  is  not  inconsistent  with  the  legislation 
of  Congress  on  this  subject.62 

§  131.  Extent  of  Authority  Granted  by  Post  Roads  Act- 
Telegraph  Companies.— The  right  given  by  act  of  Congress 63 
to  telegraph  companies  to  construct  their  lines  over  and  along 
military  and  post  roads  of  the  United  States  upon  compli- 
ance with  certain  conditions  is  permissive  only  and  confers 
no  right  to  use  the  streets  and  alleys  of  a  city  and  to  take 
municipal  property  without  compensation.  Such  companies 
cannot  use  said  streets  without  authority  from  the  city;  the 
Congress  of  the  United  States  has  no  power  to  take  private 
property  without  compensation.64    The  Post  Roads  Act  confers 

80  Sanford  v.  City  of  Tucson  (Ariz.,  84  Postal  Teleg.  Cable  Co.  v.  City 
1903),  71  Pac.  903.  of  Newport,  25  Ky.  L.  Rep.  635,  74 

81  Act  July  26,  1866,  14  Stat.  253,  S.  W.  159,  8  Am.  Elec.  Cas.  25,  27, 
Rev.  Stat.  §  2339;  act  March  3,  citing  Postal  Teleg.  Co.  v.  Baltimore, 
1877,  19  Stat.  377.  156  U.  S.  210,  39  L.  ed.  399,  15  Sup. 

"2Gutierres  v.  Albuquerque  Land  Ct.  356;  St.  Louis  v.  Western  Union 

&  Irrigation  Co.,  188  U.  S.  545,  47  Teleg.  Co.,  148  U.  S.  92,  13  Sup.  Ct. 

L.  ed.  588,  23  Sup.  Ct.  338.  485,  37  L.  ed.  380. 

"Act  July  4,  1866. 

234 


CONSTITUTIONAL   AND    LEGISLATIVE    POWERS  §    131 

a  right  and  not  a  mere  privilege  to  construct,  maintain  and 
operate  telegraph  lines  in  the  manner  provided,  and  upon, 
over  and  along  the  places  specified.  A  plenary  power  is  granted 
for  the  benefit  of  the  public  and  of  the  government  of  the 
United  States,  having  in  view  the  growing  necessity  of  com- 
merce and  the  needs  of  the  postal  service.65  But  while  the 
statute  confers  this  right  it  may  not  be  exercised  absolutely 
and  under  all  circumstances.  It  cannot  be  taken  away  by 
hostile  state  legislation,  nor  can  such  legislation  operate  to 
prevent  placing  telegraph  lines  upon,  over,  along  or  under, 
the  places  designated  in  said  Post  Roads  Act.  Nor  after  such 
lines  are  located  there,  may  the  use  of  them  be  stopped  by 
state  or  municipal  legislation.  Nevertheless,  the  right  conferred 
is  limited  or  abridged  to  this  extent,  that  the  statute  is  per- 
missive only  in  many  respects.66  The  Post  Roads  Act  being 
permissive  only,  it  was  never  intended  to  interfere  with  the 
proper  regulation  and  control  of  such  highways  by  the  States, 
counties  or  municipalities  which  had  them  in  charge,  and  such 
statute  also  expressly  provides  that  such  telegraph  lines  shall 
be  so  maintained  as  not  to  "interfere  with  the  ordinary  travel 
on  such  military  or  post  roads."  67  The  authority  conferred 
under  the  Post  Roads  Act  is  subordinated  in  its  exercise  to  the 
rights  of  the  public  to  a  certain  extent,  and  also  to  the  exercise, 
within  lawful  limits,  of  the  police  power  of  the  State  or  munici- 
pality which  the  telegraph  company  has  entered  for  the  pur- 
pose of  constructing  its  lines.  Such  company  must  submit  to 
the  ordinary,  reasonable  and  lawful  regulations  of  the  state 

M  Hewett  v.  Western  Union  Tele-  31   L.  ed.    790,   8   Sup.   Ct.   961,   21 

graph  Co.,  4  Mackey  (D.  C),  424,  16  Am.    &   Eng.  Corp.  Cas.   13,  2   Am. 

Am.  &  Eng.  Corp.  Cas.  276,  2  Cent.  Elec.    Cas.    57,   61,   per   Mr.   Justice 

Rep.  694,  2  Am.  Elec.  Cas.  222,  225,  Miller;     Southern     Bell     Teleph.    & 

226,  per  Merrick,  J.  Teleg.  Co.  v.  Richmond  (C.  C.  E.  D. 

"St.     Louis    v.     Western     Union  Va.),  78  Fed.  <S58,  6  Am.  Elec.  Cas. 

Teleg.  Co.,  148  U.  S.  92,  37  L.  ed.  1,  6,  per  Goff,  Cir.  J. 
380,  39  Fed.  59,  4  Am.  Elec.  Cats.  102,        "  Ganz    v.     Ohio     Postal    Teleg. 

Ill,  13  Sup.  Ct.  485,  per  Mr  .lustier  Cable  Co.,  MO  Fed.  692,  rev'g  Ohio 

Brewer,  citing  with  approval  West-  Postal  Teleg.  Cable  Co,  v.  Board  of 

ern    Union   Teleg    Co.    v.    Attorney-  Commissioners,  137  Fed.  947. 
General  of  Mass.,  125  U.  S.  530,  548, 

235 


§  13]         SOURCE  OF  FRANCHISE — FEDERAL, 

and  local  governmental  authorities  whose  highways  and  streets 
are  used,  even  though  said  roads  and  streets  are  post  and 
military  roads.68  But,  on  the  other  side,  although  the  State 
may,  in  the  exercise  of  its  police  power,  enact  such  laws  re- 
lating to  persons  and  property  within  its  territorial  limits  as 
shall  best  promote  general  prosperity,  and  the  public  health, 
safety  and.  morals,  nevertheless,  it  cannot  encroach  upon  the 
powers  of  the  Federal  government  so  as  to  materially  impair 
or  destroy  rights  granted  or  secured  by  constitutional  acts  of 
Congress,  or  granted  under  a  constitutional  exercise  of  power. 
Especially  is  this  true  of  the  constitutional  right  to  regulate 
commerce.69  It  is  held,  however,  in  a  case  in  the  United  States 
Circuit  Court  that  the  police  power  is  inherent  in  the  States,  and 
is  not  affected  by  the  United  States  interstate  commerce  pro- 
vision, nor  by  the  Post  Roads  Act.70  These  two  propositions, 
although  seemingly  inconsistent,  are  perfectly  reconcilable. 
It  is  well  settled  that  the  police  power  extends  to  the  protection 
of  life,  health  and  property,  and  that  no  citizen  should  be  per- 
mitted to  exercise  his  rights  so  as  to  injuriously  affect  a  com- 
munity in  these  matters.  A  strictly  legitimate  exercise  of  the 
police  power  of  a  State  does  not,  in  a  constitutional  sense, 

68  Richmond  v.  Southern  Bell  N.  Y.  App.  Div.  494,  47  N.  Y.  Supp. 
Teleph.  &  Teleg.  Co.,  42  U.  S.  App.  56,  citing  Walling  v.  Michigan,  116 
686,  28  U.  S.  C.  C.  A.  659,  85  Fed.  19,  U.  S.  446-460,  29  L.  ed.  691,  696,  6 
30  Chic.  Leg.  News,  271,  3  Va.  La.  Sup.  Ct.  454;  People  v.  Gilson,  109 
Reg.  856;  Southern  Bell  Teleph.  &  N.  Y.  389-401,  4  Am.  St.  Rep.  465, 
Teleg.  Co.  v.  Richmond,  78  Fed.  858,  17  N.  E.  343;  New  Orleans  Gas  Light 
6  Am.  Elec.  Cas.  1,  6,  per  Goff,  Cir.  Co.  v.  Louisiana  L.  &  H.  P.  &  Mfg. 
J.;  Clausen  &  Sons  Brewing  Co.  v.  Co.,  115  U.  S.  650,  29  L.  ed.  516,  6 
The  Baltimore  &  Ohio  Teleg.  Co.  Sup.  Ct.  252;  Brennan  v.  Titusville, 
(N.  Y.  Sup.  Ct.  Chambers,  1884),  153  U.  S.  289-299,  4  Inter.  Comm. 
2  Am.  Elec.  Cas.  210,  217,  per  Van  Rep.  658,  38  L.  ed.  719,  722,  14  Sup. 
Brunt,  J.;  Mutual  Union  Teleg.  Co.  Ct.  829;  Jacobs,  In  re,  98  N.  Y.  98- 
v.  Chicago,  16  Fed.  309,  1  Am.  Elec.  108,  50  Am.  St.  Rep.  636. 

Cas.  506,  507,  per  Drummond,  J.  70  Western    Union    Teleg.    Co.    v. 

69  Western  Union  Teleg.  Co.  v.  Mayor  of  New  York,  38  Fed.  552,  2 
James,  162  U.  S.  650,  16  Sup.  Ct.  934,  Inter.  Comm.  Rep.  533,  3  L.  R.  A. 
40  L.  ed.  1105,  6  Am.  Elec.  Cas.  858,  449,  6  Ry.  &  Corp.  L.  Jour.  105,  2 
861,  16  Sup.  Ct.  934,  per  Mr.  Justice  Am.  Elec.  Cas.  195. 

Peckham;    People    v.    Hawkins,    20 

236 


CONSTITUTIONAL   AND    LEGISLATIVE    POWERS  §    131 

necessarily  encroach  upon  any  authority  confided  expressly 
or  by  implication  to  the  national  government.  In  addition, 
the  exercise  of  the  police  power  in  the  last  case  above  noted, 
related  to  the  enforcement  of  the  subway  act71  in  the  city  of 
New  York.72  The  franchise  of  a  telegraph  company  is  derived 
from  the  State,  and  it  owes  its  existence  to  the  state  law  of 
organization,  even  though  its  privilege  of  running  lines  over 
post  and  military  roads  is  derived  from  Congress.73  A  tele- 
graph company,  therefore,  within  the  limitations  above  speci- 
fied, owes  obedience  to  the  state  laws,  notwithstanding  it  has 
accepted  the  provisions  and  benefits  of  the  Post  Roads  Act.74 
It  may  be  stated  in  this  connection  that  it  is  a  general  prin- 
ciple that  the  State  may  legislate  with  binding  effect  within 
its  territorial  limits  where  such  enactments  relate  to  the  rights, 
duties  and  liabilities  of  citizens,  and  are  not  directed  against 
commerce  nor  any  of  its  regulations.75 

71  Laws  N.  Y.  1884,  c.  534;  Laws  39  Fed.  59,  4  Am.  Elec.  Cas.  102.  Ill, 
1885,  c.  499,  and  Laws  1887,  c.  716.  13    Sup.    Ct.    485,    per   Mr.    Justice 

72  The  case  last  given  is  cited  with  Brewer,  citing  Western  Union  Teleg. 
approval  in  State  ex  rel.  Wisconsin  Co.  v.  Massachusetts,  125  U.  S.  530, 
Teleph.  Co.  v.  Janesville  St.  Ry.  Co.,  548,  21  Am.  &  Eng.  Corp.  Cas.  13, 
87  Wis.  72,  41  Am.  St.  Rep.  23,  4  31  L.  ed.  790,  8  Sup.  Ct.  961,  per  Mr. 
Am.  Elec.  Cas.  289,  294,  57  N.  W.  Justice  Miller. 

970,  per  Orton,  C.  J.     See  Western  75  Sherlock  v.  Ailing,  93  U.  S.  99, 

Union  Teleg.   Co.  v.   Mississippi  R.  23  L.  ed.  819,  cited  with  approval 

Commission,  74  Miss.  80,  21  So.  15.  in    Western    Union    Teleg.    Co.    v. 

73  Western  Union  Teleg.  Co.  v.  Tyler,  90  Va.  297,  4  Am.  Elec.  Cas. 
Attorney-General  of  Mass.,  125  U.  S.  816,  819,  18  S.  E.  280,  per  Lewis,  P. 
530,  548,  31  L.  ed.  790,  8  Sup.  Ct.  See  Joyce  on  Elect ric  Law  (2ded.), 
961,  21  Am.  &  Eng.  Corp.  Cas.  13,  under  the  following  sections:  §  38. 
2  Am.  Elec.  Cas.  57,  60,  61,  per  Mr.  Acts  aiding  telegraph  companies — 
Justice  Miller;  Attorney-General  of  Post  Roads  Act;  §  39.  Object  of  Post 
Mass.  v.  Western  Union  Teleg.  Co.,  Roads  Act;  §40.  Powers  of  Con- 
141  U.  S.  40,  3  Am.  Elec.  Cas.  20,  24,  g re ss— Commerce — Post-offices  and 
25,  35  L.ed.  628,  11  Sup.  Ct.  889,  per  post  roads;  §41.  Object  of  vesting 
Mr.  Justice  Gray.  power  in  Congress — Commerce;  5  12. 

74  See  Attorney-General  of  Mass.  Legislative  intent  New  discoveries 
v.  Western  Union  Teleg.  Co.,  141  U.  — Regulation  of  Commerce;  §  42a. 
S.  40,  3  Am.  Elec.  Cas.  20,  24,  11  Sup.  Interstate  Commerce-  Regulation  of 
Ct.  889,  35  L.  ed.  628,  per  Mr.  Justice  by  common  law  and  acts  of  ( bngress; 
Gray;  St.  Louis  v.  Western  Union  §  43.  Telegraph  is  instrument  of 
Teleg.  Co.,  148  U.  S.  92,  37  L.  ed.  380,  commerce— Control      of      Congress; 

237 


§  131 


SOURCE  OF  FRANCHISE — FEDERAL, 


§  44.  Telephone  is  instrument  of 
interstate  commerce;  §  45.  Whether 
Post  Roads  Act  includes  telephone 
companies;  §  45a.  Post  Roads  Act — 
Messenger  service — Call  boxes;  §  46. 
What  are  post  and  military  roads; 
§  47.  Post  Roads  Act  not  limited  to 
public  domain;  §  48.  Post  Roads 
Act  applies  to  District  of  Columbia; 
§  49.  Post  Roads  Act  applies  to 
companies  thereafter  formed;  §  50. 
Post  Roads  Act — Regulation  of  com- 
merce— Foreign  corporation;  §  51. 
Acceptance  necessary  of  Post  Roads 
Act;  §  51a.  Certificate  of  postmaster 
general  competent  evidence  of  ac- 
ceptance; §  52.  Effect  of  accept- 
ance of  Post  Roads  Act;  §  52a. 
Foreign  corporations— Incorporation 
prerequisite  to  acceptance — Post 
Roads  Act  does  not  confer  franchise; 
§  53.  Post  Roads  Act  does  not  au- 
thorize    condemnation;     §  54.    Post 


Roads  Act — Condemnation  under 
state  law — Telegraph  companies; 
§  55.  Commerce — Federal  Constitu- 
tion— Municipal  powers;  §  56.  Com- 
merce— Federal  Constitution — Stipu- 
lations in  telegraph  blanks  against 
negligence;  §  57.  Commerce — Fed- 
eral constitution — Tariff  or  rates  for 
telegraph  or  telephone;  §  62.  Post 
Roads  Act — Authority  conferred; 
§  63.  Post  Roads  Act — Limitations 
upon  authority  or  right  conferred; 
§  64.  Same  subject — Public  and  pri- 
vate property — Streets  and  highways 
— Abutting  owners;  §  65.  Post  Roads 
Act  exclusive — Hostile  legislation; 
§  66.  Post  Roads  Act  exclusive — ■ 
Hostile  legislation  continued — Modi- 
fication of  rule;  §  67.  Post  Roads 
Act — Modification  of  the  rule  as  to 
hostile  legislation  continued.  See 
also  id.,  §§  30-37c,  68-83,  130- 
140a. 


238 


CONSTITUTIONAL   AND    LEGISLATIVE    POWERS  §    132 


CHAPTER  IX. 


SOURCE     OF     FRANCHISE     CONTINUED— STATE,    CONSTITUTIONAL 
AND    LEGISLATIVE    POWERS. 


132.  Legislative  Power — Source  of 

Franchise  of  Charter — Leg- 
islative Grant  Necessary. 

133.  Same  Subject — Prescription. 

134.  Test  of  Legislative  Power  to 

Grant  Franchises. 

135.  Distribution    or    Division    of 

Powers  of  State. 

136.  What     Matters     Exclusively 

Within  Legislative  Dis- 
cretion— Power  of  Courts. 

137.  Limitations     on     Powers     of 

State  Legislature. 

138.  Abdication    or    Surrender    of 

Essential  or  Distinctive 
Legislative  Powers — Bind- 
ing Future  Legislatures — 
Waiver — Police  Powers — 
Judicial  Powers. 

139.  Legislative   Powers  of  Terri- 

tory— Corporations  Created 
by  Territory  Follow  It 
Into  Union. 

140.  Legislative    Power  to   Grant 

Implies    Power   to    Refuse 


Franchise — Refusal  by 

Subordinate  Body. 

141.  Consent  of  Subordinate  Body 

Unnecessary  to  Exercise  of 
Power  by  Legislature. 

142.  Corporations      Created      by 

Rebel  State. 

143.  Legislative  Power — Grant  of 

Additional  Franchises — 
Amendments. 

144.  Legislative   Grant   Necessary 

— Roads,  Highways, 

Bridges  and  Ferries,  Emi- 
nent Domain,  Generally. 

145.  Bridge  Corporation — Bridges 

—  Commerce  —  Navigable 
Waters  Wholly  Within 
State — Power  of  State  as  to 
Toll  Bridges  —  Railroad 
Toll  Bridge. 

146.  Pier    Erected    Without    Au- 

thority in  Navigable  Water 
— Unlawful  Structure — 
Owner's  Liability. 


§  132.  Legislative  Power— Source  of  Franchise  or  Char- 
ter—Legislative Grant  Necessary.— A  franchise  must  have  its 
source  in  or  emanate  from  the  sovereign  power  wherein  it 
primarily  resides,  and  that  power  alone  can  grant  it  and  make 
possible  its  lawful  exercise,  for  such  legislative  grant  or  law  is 
a  prerequisite.  The  source  of  a  franchise  is  the  State,  what- 
ever the  agency  employed.1 

'United   States:    Bank    of    Au-   519,  595, 10  L.  ed.  274,  per  Taney,  C. 

gusta  v    Earle,   13   Pet.   (38  U.  S.)    J.,  who  says:  "It  is  essential  to  the 

239 


§    133  SOURCE    OF   FRANCHISE  CONTINUED — STATE, 


§  133.  Same  Subject — Prescription.2 — Although  a  corpora- 
tion may  exist  by  prescription,  such  prescription  presupposes 


character  of  a  franchise  that  it  should 
be  a  grant  from  the  sovereign  au- 
thority, and  in  this  country  no  fran- 
chise can  be  held  which  is  not  derived 
from  a  law  of  the  State;"  quoted  in 
whole  or  in  part  in  People's  Rd.  v. 
Memphis  Rd.,  10  Wall.  (77  U.  S.)  38, 
51,  19  L.  ed.  844;  Western  Union 
Teleg.  Co.  v.  Norman,  77  Fed.  13, 
22,  per  Barr,  Dist.  J.;  Chicago  & 
Western  Indiana  Rd.  Co.  v.  Dunbar, 
95  111.  571,  575;  Purnell  v.  McLane, 
98  Md.  589,  592,  56  Atl.  830,  per 
Pearce,  J.;  State  v.  Scougal,  3  S.  Dak. 
55,  62,  44  Am.  St.  Rep.  756,  15  L.  R. 
A.  477,  per  Corson,  J. 

Alabama:  State  v.  Wilburn  (Ala., 
1905),  39  So.  816;  Uniontown,  City 
of,  v.  State  (Ala.,  1905),  39  So.  814; 
State  v.  Moore  &  Ligon,  19  Ala.  520, 
per  Parsons,  J.,  who  says:  "It  is 
clear  that  the  State  is  the  source  of 
all  such  franchises." 

Colorado:  Denver  &  Swansea  Ry. 
Co.  v.  Denver  City  Ry.  Co.,  2  Colo. 
673,  682,  per  Brazee,  J.,  who  says: 
"It  is  essential  that  a  franchise 
should  be  created  by  a  grant  from 
the  sovereign  authority."  It  is  a 
franchise  which  the  sovereign  au- 
thority alone  can  grant. 

Idaho:  Spotswood  v.  Morris,  12 
Idaho,  360,  85  Pac.  1094  (sovereign 
power  is  necessary  in  order  to  pos- 
sess or  lawfully  exercise  the  powers, 
privileges  or  franchises  of  a  corpo- 
ration). 

Illinois :  Wilmington  Water  Power 
Co.  v.  Evans,  166  111.  548,  556,  46 
N.  E.  1083,  per  Magruder,  C.  J.; 
Chicago  City  Ry.  v.  People,  73  111. 
541,  547,  per  Story,  J.,  who  says: 
"Corporate  franchises  in  the  Ameri- 


can States  emanate  from  the  gov- 
ernment, or  sovereign  power,  owe 
their  existence  to  a  grant,"  etc.; 
People  ex  rel.  Koerner  v.  Ridgley,  21 
111.  65,  69,  per  Breese,  J.,  who  says: 
"In  this  country,  under  our  institu- 
tions, a  privilege  or  immunity  of  a 
public  nature,  which  could  not  be 
exercised  without  a  legislative  grant 
would  also  be  a  franchise.  There 
must  be  some  parting  of  prerogative 
belonging  to  a  king,  or  to  the  people, 
under  our  system,  that  can  consti- 
tute a  franchise";  Cain  v.  City  of 
Wyoming,  104  111.  App.  538  (a  fran- 
chise must  be  granted  by  the  legis- 
lature). 

Louisiana:  Maestri  v.  Board  of 
Assessors,  110  La.  517,  526,  34  So. 
658,  per  Blanchard,  J.,  who  says: 
"  To  be  a  franchise  the  right  possessed 
must  be  such  as  cannot  be  exercised 
without  the  express  permission  of 
the  sovereign  power — a  privilege  or 
immunity  of  a  public  nature  which 
cannot  be  legally  exercised  without 
legislative  grant." 

Maine:  Yarmouth  v.  North  Yar- 
mouth, 34  Me.  411,  56  Am.  Dec.  666 
(private  corporations  exist  by  legis- 
lative grants  conferring  rights  and 
powers  for  special  purposes). 

Minnesota:  State,  Clapp,  v.  Min- 
nesota Thresher  Mfg.  Co.,  40  Minn. 
213,  3  L.  R.  A.  510,  41  N.  W.  1020 
(same  statement  as  Louisiana  case); 
Blake  v.  Winona  &  St.  Peter  Ry. 
Co.,  19  Minn.  418,  425. 

Pennsylvania:  Allegheny  County 
v.  McKeesport  Diamond  Market,  123 
Pa.  164,  19  Pitts.  L.  J.  (N.  S.)  280,  46 
Phila.  Leg.  Int.  211,  23  W.  N.  C.  89, 
16   Atl.   619    (chartered   rights  from 


2  See  §  122,  herein. 


240 


CONSTITUTIONAL   AND    LEGISLATIVE    POWERS 


§  134 


a  grant.3  So  the  presumption  of  a  right  to  exercise  a  ferry 
franchise  may  arise  from  its  continuous,  uninterrupted  use 
for  twenty  years  even  though  no  license  or  legislative  grant 
exists.4  But  a  gas  and  electric  company's  right  to  maintain 
poles  in  the  identical  spot  of  their  location  on  streets  of  a  city, 
cannot  arise  by  prescriptive  right  based  merely  on  lapse  of 
time.5  But  it  is  declared  that  a  franchise  being  derived  from 
the  government  is  always  supposed  to  have  been  originally 
granted  by  the  government.6 

§  134.  Test  of  Legislative  Power  to  Grant  Franchises. — 

One  of  the  tests  of  legislative  power  to  grant  franchises  to  par- 
ticular individuals  is  whether  such  grant  will  promote  the  pub- 


commonwealth    necessary   to   effect 
purposes  for  which  organized). 

"It  is  universally  recognized  that 
the  power  of  creating  corporations 
is  one  appertaining  to  sovereignty, 
and  can  only  be  exercised  by  that 
branch  of  the  government  in  which 
it  is  legally  vested,  and  whatever 
method  may  be  adopted  for  their 
formation,  and  with  whatever  lib- 
erality the  privilege  of  forming  them 
may  be  conferred,  every  corporation 
is  dependent  for  its  existence  upon 
the  permission  of  the  State  in  which 


it  is  created."  Bank  of  California 
v.  San  Francisco,  142  Cal.  276,  279, 
75  Pac.  832,  64  L.  R.  A.  918,  per 
Angellotti,  J. 

In  the  United  States  a  corporation 
can  only  have  an  existence  under 
the  express  law  of  the  State  by  which 
it  is  created  and  can  exercise  no 
power  or  authority  which  is  not 
granted  to  it  by  the  charter  under 
which  it  exists,  or  by  some  other 
legislative  act.  Oregon  Ry.  &  Navi- 
gation Co.  v.  Oregonian  Ry.  Co.,  130 
U.  S.  1,  9  Sup.  Ct.  409,  32  L.  ed.  837. 


3  Wilmington  Water  Power  Co.  v. 
Evans,  166  111.  548,  556,  46  N.  E. 
1083,  per  Magruder,  J.;  Chicago  City 
Ry.  v.  People,  73  111.  541,  547,  per 
Scott,  J. 

"There  is  no  doubt,"  says  Kent, 
"  that  corporations,  as  well  as  other 
private  rights  and  franchises,  may 
exist  in  this  country  by  prescription, 
2  Kent's  Com.  277(a).  *  *  *  It 
may  be  considered  well  settled,  that 
a  corporation  may  exist  in  this 
country  by  presumptive  evidence. 
*     *     *     Although  corporations 

may     >     *     *     exjHt  in  this  country 

16 


by  common  law,  and  by  reputation. 
*  *  *  Yet  there  are,  compara- 
tively, but  few  cases  where  a  legis- 
lative act  or  charter  cannot  be 
shown."  Angell  &  Ames  on  Corp. 
(9th  ed.)  §  §  70,  71. 

*  Milton  v.  Haden,  32  Ala.  30,  70 
Am.  Dec.  523. 

5  Merced  Falls  Gas  &  Elect.  Light 
Co.  v.  Turner,  2  Cal.  App.  720,  84 
Pac.  239. 

8  Norwich  Gas  Light  Co.  v.  The 
Norwich  City  Gas  Co.,  25  Conn.  19, 
30,  per  Hinman,  J.  (right  to  lay  gas 
pipes  in  streets). 

241 


§§    135,   136      SOURCE   OF   FRANCHISE    CONTINUED — STATE, 

lie  good,  and  is  such  that  the  rights  or  privileges  granted  must 
be  committed  to  a  few  in  order  to  be  available.7 

§  135.  Distribution  or  Division  of  Powers  of  State.— The 

distribution  of  the  powers  of  the  State,  by  the  constitution, 
to  the  legislative,  executive  and  judicial  departments,  operates, 
by  implication,  as  an  inhibition  against  the  imposition  on 
either,  of  those  powers  which  distinctively  belong  to  one  of 
the  other  departments.8  So  the  legislative  and  judicial  func- 
tions of  the  State  are  entirely  separate  and  vitally  distinct; 9 
and  the  fact  that  a  power  is  conferred  by  statute  on  a  court  of 
justice,  to  be  exercised  by  it  in  the  first  instance  in  a  proceed- 
ing instituted  therein,  is,  itself,  of  controlling  importance,  as 
fixing  the  judicial  character  of  the  power,  and  is  decisive  in 
that  respect  unless  it  is  reasonably  certain  that  the  power 
belongs  exclusively  to  the  legislative  or  executive  depart- 
ment.10 The  division  of  powers  between  the  several  branches 
of  the  state  government  made  by  the  Nebraska  constitution  is 
comprehensive  and  final,  and  the  legislature  can  neither  add 
to  nor  subtract  from  the  classes  or  character  of  questions  with 
which  the  courts  are  entitled  to  deal.11 

§  136.  What  Matters  Exclusively  Within  Legislative  Dis- 
cretion— Power  of  Courts.12 — Certain  matters  rest  exclu- 
sively within  the  discretion  of  the  legislature  to  determine, 
such  as  whether  the  public  interest  will  be  served  by  a  grant 
of  a  right  or  privilege,  whether  an  act  is  expedient  or  wise, 

7  Horst,  Mayor,  etc.,  v.  Moses,  48  judgment  of  the  Circuit  Court  was 

Ala.  129,  143.    See  §§  120-124,  136,  reversed.    The  report  of  the  case  on 

147,  148,  herein.  that  hearing  appears  in  63  Ohio  St. 

8Zanesville,    City    of,    v.    Zanes-  442,  59  N.  E.  109.     On  the  rehear- 

ville  Teleg.  &  Teleph.  Co.,  64  Ohio  ing  the  judgment  of  reversal  was  set 

St.    67.      See    also    Western    Union  aside  and  judgment  rendered  affirm- 

Teleg.  Co.  v.  Myatt,  98  Fed.  335.  ing  the  Circuit  Court  in  accordance 

9  Western    Union    Teleg.    Co.    v.  with  the  following  report  of  the  case 
Myatt,  98  Fed.  335.  —Reporter."    Id.,  68. 

10  Zanesville,    City    of,    v.    Zanes-        "Tyson    v.    Washington    County 
ville  Teleg.  &  Teleph.  Co.,  64  Ohio    (Neb.,  1907),  110  N.  W.  634. 

St.  67.     "On  the  first  hearing  the       "See  §§  171,  184,  200,  herein. 

242 


CONSTITUTIONAL   AND   LEGISLATIVE    POWERS 


§  136 


adequate  or  necessary,  and  courts  cannot  inquire  into  the 
motives  inducing  legislation,  nor  as  to  the  expediency  of  the 
enactment,  nor  as  to  the  wisdom,  necessity,  policy  or  justice 
thereof,  nor  as  to  the  reasons  inducing  legislators  to  act,  but 
their  power  is  limited  to  the  determination  only  of  the  question 
of  the  constitutionality  of  a  statute.13     But  it  also  held  that  the 


13  United  States:  California  Re- 
duction Co.  v.  Sanitary  Reduction 
Co.,  126  Fed.  29,  61  C.  C.  91,  s.  c, 
194  U.  S.  635,  case  aff'd  199  U.  S. 
306. 

California:  Dobbins  v.  City  of  Los 
Angeles,  139  Cal.  179,  72  Pac.  970. 
See  Odd  Fellows  Cemetery  Assn.  v. 
San  Francisco,  140  Cal.  226,  73  Pac. 
987. 

Florida:  Thomas  v.  Williamson 
(Fla.,  1906),  40  So.  831. 

Indiana:  State  v.  Terre  Haute  & 
Indianapolis  Rd.  Co.,  166  Ind.  580, 
77  N.  E.  1077. 

Iowa:  McGuire  v.  Chicago,  Bur- 
lington &  Quincy  R.  Co.,  131  Iowa, 
340,  108  N.  W.  902. 

Louisiana:  St.  Joseph  Plank  Road 
Co.  v.  Kline,  106  La.  325,  30  So.  854. 

Missouri:  Young  v.  City  of  Kan- 
sas City,  152  Mo.  661,  54  S.  W.  535. 

Nebraska:  See  Tyson  v.  Wash- 
ington County  (Neb.,  1907),  110  N. 
W.  634. 

New  York:  Kittinger  v.  Buffalo 
Traction  Co.,  160  N.  Y.  377,  54  N.  E. 
1081,  aff'g  49  N.  Y.  Supp.  713,  25 
App.  Div.  329. 

South  Carolina:  Brown  v.  Tharpe, 
74  S.  C.  207,  54  S.  E.  363. 

Virginia:  Zircle  v.  Southern  Ry. 
Co.  (V,a.),  45  S.  E.  802:  Danville 
Hatcher,  101  Va.  523,  44  S.  E. 
723. 

See  Joyce  on  Elect.  Law  (2d  ed.), 
§  357. 

When  an  act  of  the  legislature  is 
challenged  in  a  court,  the  inquiry  is 


limited  to  the  question  of  power,  and 
does  not  extend  to  the  matter  of 
expediency,  to  the  motives  of  the 
legislators,  or  to  the  reasons  which 
were  spread  before  them  to  induce 
the  passage  of  the  act;  and,  on  the 
other  hand,  the  courts  will  not  in- 
terfere with  the  action  of  the  legis- 
lature, so  it  may  be  presumed  that 
the  legislature  never  intends  to  in- 
terfere with  the  action  of  the  courts, 
or  to  assume  judicial  functions  to 
itself.  Angle  v.  Chicago,  St.  Paul, 
Minneapolis  &  Omaha  Ry.  Co.,  151 
U.  S.  1,  38  L.  ed.  55,  14  Sup.  Ct. 
240. 

The  question  of  the  public  welfare 
or  interest  rests  exclusively  with  the 
legislature.  Revere  Water  Co.  v. 
Town  of  Winthrop,  192  Mass.  455, 
78  N.  E.  497. 

"  Whether  the  grant  of  a  franchise 
is,  or  is  not  on  the  whole,  promotive  of 
the  public  interest,  is  a  question  of 
fact  and  judgment,  upon  which  dif- 
ferent minds  may  entertain  different 
opinions.  It  is  not  to  be  judically 
assumed  to  be  injurious  and  then 
the  grant  to  be  reasoned  down.  It 
is  a  matter  exclusively  confided  to 
the  sober  consideration  of  the  legis- 
lature, which  is  invested  with  full 
discretion,  and  possesses  ample 
means  to  decide  it.  For  myself, 
meaning  to  speak  with  all  due  def- 
erence for  others,  I  know  of  no  power 
or  authority  confided  to  the  judicial 
department,  to  rejudge  the  deci- 
sions of  the  legislature,  upon  such  a 

243 


§    136         SOURCE   OF   FRANCHISE   CONTINUED — STATE, 

court  cannot  inquire  into  the  motives  of  legislators  in  enact- 
ing laws,  except  as  they  may  be  disclosed  on  the  face  of  the 
acts,  or  be  inferable  from  their  operation,  considered  with  ref- 
erence to  the  condition  of  the  country  and  existing  legislation.14 
It  is  further  determined  that  the  policy,  wisdom,  justice  and 
fairness  of  a  state  statute,  and  its  conformity  to  the  state  con- 
stitution, are  wholly  for  the  legislature  and  the  courts  of  the 
State  to  determine,  and  the  Federal  Supreme  Court  has  nothing 
to  do  with  those  matters.15  Again,  courts  always  presume 
that  a  legislature  in  enacting  statutes,  acts  advisedly  and  with 
full  knowledge  of  the  situation,  and  they  must  accept  its  action 
as  that  of  a  body  having  full  power  to  act,  and  only  acting 
when  it  has  acquired  sufficient  information  to  justify  its  action.18 
And  in  whatever  language  a  statute  may  be  framed,  its  pur- 
pose must  be  determined  by  its  natural  and  reasonable  effect; 
and  the  presumption  that  it  was  enacted  in  good  faith,  for  the 
purpose  expressed  in  the  title,  cannot  control  the  determination 
of  the  question  whether  it  is,  or  is  not,  repugnant  to  the  Con- 
stitution of  the  United  States.17  So  questions  of  relative  ben- 
efit as  between  the  public  and  a  combination  alleged  to  be  in 

subject.    It    has  an  exclusive  right  islature  has  declared  to  be  of  great 

to  make  the  grant,   and  to   decide  utility  to   the  people?     It  seems  to 

whether  it  be,   or  be  not,   for  the  me  to  be  our  duty  to  interpret  laws, 

public   interests.      It   is   to   be   pre-  and  not  to  wander  into  speculations 

sumed,  if  the  grant  is  made,  that  it  is  upon  their  policy."      Charles    River 

made   from   a   high   sense  of   public  Bridge   v.    Warren  Bridge,   11    Pet. 

duty,  to  promote  the  public  welfare,  (36  U.  S.)  420,   605,   9  L.  ed.  773, 

and    to    establish    the    public    pros-  per  Story,  J.,  in  dissenting  opinion, 
perity.    In  this  very  case,  the  legisla-        14  Soon  Hing  v.  Crowley,  113  U.  S. 

ture  has,  upon  the  very  face  of  the  703,  28  L.  ed.  1145,  5  Sup.  Ct.  730. 
act  made  a  solemn  declaration  as  to        15  Hunter  v.  City  of  Pittsburg,  207 

the  motive  for  passing  it;  that, 'The  U.  S.  161. 

erecting  of  a  bridge  over  the  Charles  16  Chesapeake  &  Potomac  Teleph. 
River,  etc.,  will  be  of  great  public  Co.  v.  Manning,  186  U.  S.  238,  46  L. 
utility.'  What  court  of  justice  is  in-  ed.  1144,  22  Sup.  Ct.  881,  rev'g  Man- 
vested  with  authority  to  gainsay  this  ning  v.  Chesapeake  &  P.  Teleph.  Co., 
declaration?  To  strike  it  out  of  the  18  App.  D.  C.  191. 
act,  and  reason  upon  the  other  17  Minnesota  v.  Barber,  136  U.  S. 
words,  as  if  it  were  not  there?  To  313,  34  L.  ed.  455,  10  Sup.  Ct.  862. 
pronounce  that  a  grant  is  against  the  See  Brimmer  v.  Redman,  138  U.  S. 
interest  of  the  people,  which  the  leg-  78,  11  Sup.  Ct.  213,  34  L.  ed.  862. 

244 


CONSTITUTIONAL   AND   LEGISLATIVE   POWERS  §    137 

violation  of  the  Anti-Trust  Act  of  Congress,  are  those  of  public 
policy  resting  solely  upon  the  determination  of  Congress,  and 
not  questions  for  the  consideration  of  the  court.18  In  cases 
where  the  validity  of  a  legislative  act  is  to  be  examined  and  the 
opinion  of  the  highest  law  tribunal  of  the  State  to  be  revised, 
it  is  declared  by  the  United  States  Supreme  Court  that  that 
court  will  proceed  with  cautious  circumspection,  and  in  no 
doubtful  case  will  it  pronounce  a  legislative  act  to  be  contrary 
to  the  Constitution,  but  that  upon  that  court  is  imposed  the 
high  and  solemn  duty  of  protecting  from  even  legislative  vio- 
lation those  contracts  which  the  Constitution  has  placed  be- 
yond legislative  control.19  Legislative  acts  of  a  city's  common 
council  are,  equally  with  those  of  a  state  legislature,  within 
the  rule  which  precludes  inquiry  by  the  courts  into  the  motives 
which  may  have  induced  legislation.20  But  while  the  right  to 
exercise  the  police  power  is  a  continuing  one,  and  a  business 
lawful  to-day  may  in  the  future  become  a  menace  to  the  public 
welfare  and  be  required  to  yield  to  the  public  good,  the  exercise 
of  the  police  power  is  subject  to  judicial  review,  and  property 
rights  cannot  be  wrongfully  destroyed  by  arbitrary  enact- 
ment.21 And  although  an  ordinance  may  be  lawful  on  its  face 
and  apparently  fair  in  its  terms,  yet  if  it  is  enforced  in  such  a 
manner  as  to  work  a  discrimination  against  a  part  of  a  com- 
munity for  no  lawful  reason,  such  exercise  of  power  will  be 
invalidated  by  the  courts.22 

§  137.  Limitations  on  Powers  of  State  Legislature.23— Sub- 
ject to  such  limitations  as  are  expressly  or  impliedly  imposed 

18  United  States  v.  Northern  Se-  21  Dobbins  v.  City  of  Los  Angeles, 
curities  Co.,  120  Fed.  721,  case  aff'd  195  U.  S.  223,  25  Sup.  Ct.  18,  49 
193  U.  S.  197,  48  L.  ed.  679,  24  Sup.    L.  ed.  169. 

Ct.  436.  »  Yick  Wo  v.  Hopkins,  118  U.  S. 

19  Dartmouth  College  v.  Wood-  356,  30  L.  ed.  220,  6  Sup.  Ct.  1064; 
ward,  4  Wheat.  (17  U.  S.)  518,  4  L.  Dobbins  v.  City  of  Los  Angeles,  195 
ed.  629.  U.  S.  223,  25  Sup.  Ct.  18,  49  L.  ed. 

"Kittenger    v.    Buffalo    Traction    169. 
Co.,  49  N.   Y.  Supp.   713,  25  App.        "See  §  121,  herein. 
Div.   329,  aff'd   160  N.   Y.   377,  54 
N.  E.  1081. 

245 


§    137  SOURCE   OF   FRANCHISE   CONTINUED — STATE, 


by  the  Federal  and  state  constitutions  a  State  has  plenary 
power  to  legislate  upon  all  subjects.24  And  whatever  the 
State  may  do,  even  with  creations  of  its  own  will,  it  must  do 
in  subordination  to  the  inhibitions  of  the  Federal  Constitution. 
It  may  confer,  by  its  general  laws,  upon  corporations,  certain 
capacities  of  doing  business,  and  of  having  perpetual  succes- 
sion in  their  members.    It  may  make  its  grant  in  these  respects 


"Colorado:  The  constitution  is 
not  a  grant  of  power  to  the  legis- 
lature, it  is  but  a  limitation  upon 
legislative  authority,  as  it  is  invested 
with  plenary  power  for  all  the  pur- 
poses of  civil  government.  People 
ex  rel.  Rhodes  v.  Fleming,  10  Colo. 
553,  16  Pac.  298. 

Florida:  The  state  constitution 
is  a  limitation  upon  power;  and  un- 
less legislation  duly  passed  be  clearly 
contrary  to  some  express  or  implied 
prohibition  contained  in  the  consti- 
tution, the  courts  have  no  authority 
to  pronounce  it  invalid.  Thomas  v. 
Williamson  (Fla.,  1906),  40  So.  831. 

Iowa:  Subject  to  the  power  ex- 
pressly or  by  necessary  inference 
delegated  to  the  Federal  govern- 
ment, the  State  has  sovereign  legis- 
lative power  over  all  subjects  except 
such  as  are  reserved  by  the  state 
constitution.  McGuire  v.  Chicago, 
Burlington  &  Quincy  Ry.  Co.,  131 
Iowa,  340,  108  N.  W.  902. 

Missouri:  A  state  legislature  has 
power  to  pass  any  law  not  prohibited 
by  the  Constitution.  State  ex  rel. 
Henson  v.  Sheppard,  192  Mo.  497, 
507,  91  S.  W.  477.  The  legislative 
power  to  enact  laws  is  practically 
absolute  except  where  limited  or 
prohibited  by  the  Constitution.  Jo- 
seph Roberts,  Ex  parte,  166  Mo. 
207,  65  S.  W.  726. 

Ohio:  Southern  Gum  Co.  v.  Lay- 
lin,  66  Ohio  St.  578,  64  N.  E.  564. 

South     Dakota:     The   legislature 

246 


does  not  look  to  the  state  constitu- 
tion for  power  to  act,  but  only  looks 
to  that  instrument  to  see  if  the  sov- 
ereign legislative  power  of  the  State 
is  in  or  by  such  constitution  in  any 
way  restricted  or  limited.  Piatt  v. 
Le  Cocq,  150  Fed.  391.  No  limita- 
tions on  legislative  power;  so  statute 
is  constitutional  unless  palpably  con- 
flicts. Watson,  In  re,  17  S.  Dak.  886, 
97  N.  W.  463. 

Tennessee:  Wright  v.  Cunning- 
ham, 115  Tenn.  445,  91  S.  W.  293. 
As  to  all  subjects  of  legislation  the 
general  assembly  has  full  power  to 
pass  any  law  not  in  conflict  with  the 
delegated  powers  of  the  Federal  gov- 
ernment, or  with  the  restrictions  of 
the  state  constitution.  Reelfoot 
Lake  Levee  Dist.  v.  Dawson,  97 
Tenn.  151,  159,  34  L.  R.  A.  725,  36 
S.  W.  1041,  per  Caldwell,  J. 

Utah:  State  v.  Lewis,  26  Utah, 
120,  72  Pac.  388;  State  v.  Cherry 
(Utah,  1900),  60  Pac.  1103. 

Virginia :  As  to  matters  not  ceded 
to  the  Federal  government,  the  legis- 
lative powers  of  the  general  assembly 
are  without  limit,  except  so  far  as 
restrictions  are  imposed  by  the  con- 
stitution of  the  State  in  express 
terms  or  by  strong  implication.  The 
state  constitution  is  a  restraining 
instrument  only,  and  every  pre- 
sumption is  made  in  favor  of  the 
constitutionality  of  a  state  statute. 
Whitlock  v.  Hawkins,  105  Va.  242, 
53  S.  E.  401. 


CONSTITUTIONAL   AND   LEGISLATIVE    POWERS  §    138 

revocable  at  pleasure.  It  may  make  the  grant  subject  to 
modifications  and  impose  conditions  upon  its  use,  and  reserve 
the  right  to  change  these  at  will.25  Again,  until  Congress  acts 
upon  the  subject,  a  State  may  legislate  in  regard  to  the  duties 
and  liabilities  of  its  citizens  and  corporations  while  on  the  high 
seas  and  not  within  the  Territory  of  any  other  sovereign.  So 
a  statute  giving  damages  for  death  caused  by  tort  is  a  valid 
exercise  of  the  legislative  power  of  a  State,  and  extends  to  a 
case  of  a  citizen  of  the  enacting  State  wrongfully  killed  while 
on  the  high  seas,  in  a  vessel  belonging  to  a  corporation  of 
another  State  by  the  negligence  of  another  vessel  also  belong- 
ing to  a  corporation  of  the  latter  State.26  The  power  of  legis- 
lation may  be  taken  away  from  the  lawmaking  body  by  the 
Constitution  as  well  by  implication  as  by  express  prohibition, 
and  prohibitions  against  legislation  are  equally  as  effectual 
as  when  they  are  express,  and  are  to  be  regarded  in  the  one 
case,  no  less  than  in  the  other.27 

§  138.  Abdication  or  Surrender  of  Essential  or  Distinc- 
tive Legislative  Powers — Binding  Future  Legislatures — 
Waiver— Police  Powers — Judicial  Powers. — No  department 
of  the  government  can  abdicate  or  resign  any  of  its  essential  and 
distinctive  powers  to  another  department,  and  much  less  so 
to  a  mere  subdivision  or  inferior  agency  unless  the  organic 
law  itself  expressly  so  authorizes.28    So  a  statute  prohibiting 

25  Southern  Pacific  Co.  v.  Board  of  724.     Examine  also  as  to  principle 

Railroad  Commrs.    (C.  C),   78  Fed.  involved,  Ozan  Lumber  Co.  v.  Union 

236,  254,  per  McKenna,  Cir.  J.,  quot-  County   National   Bank,    207    U.  S. 

ing  from  Railroad  Tax  Cases,  13  Fed.  251,  52"L.  ed.  — ,  28  Sup.  Ct.  — . 
722-789,    per    Field,    J.,    sitting    as        "Cain  v.  Smith,  117  Ga.  902,  44 

circuit  justice.     The   principal  case  S.  E.  5.     See  City  of  Lexington  v. 

concerned   the  powers  of  the  Cali-  Thompson,  24  Ky.  L.  Rep.  384,  68 

fornia  Railroad  Commission;  regula-  S.  W.  477,  57  L.  R.  A.  775. 
tion    of    rates;    leased    lines;    illegal        2S  Reelfoot    Lake    Levee    Dist.    v. 

combinations;     amendment  of  char-  Dawson,  97  Tenn.  151,  174,  36  S.  W. 

ters,  etc.  1041,  34  L.  R.  A.  725,  per  Caldwell,  J. 

"  Hamilton,   The    (Old    Dominion        As  to  reserved  powers  of  State  being 

Steamship    Co.    v.    The    Hamilton),  inalienable,    see    West    Point    Water 

207  U.  S.  398,  77  C.  C.  150,  52  L.  ed.  Power  &  L.  I.  Co.  v.  State,  49  Neb. 

— ,  28   Sup.    Ct.  — ,  affg    146    Fed.  223,  68  N.  W.  507,  66  N.  W.  6. 

247 


§    138  SOURCE    OF    FRANCHISE    CONTINUED — STATE, 

the  laying  of  any  railroad  or  railway  tracks  on  a  certain  city 
street  may  be  repealed,  and  a  statute  which  provides  that,  in 
consideration  of  the  surrender  by  a  certain  street  railway 
company  of  its  claims  on  a  city  street,  no  franchise  should  be 
granted  thereafter  to  any  street  railway  company  to  lay  tracks 
on  certain  other  streets,  may  also  be  repealed,  as  the  legisla- 
ture cannot  grant  away  the  State's  right  of  eminent  domain 
so  as  to  bind  future  legislatures,  and  such  railway  company,  so 
abandoning  its  right,  has  no  superior  right  to  the  street,  and 
the  privilege  of  using  it  may  by  such  repealing  statute  become 
open  to  all  on  equal  terms  and  prior  action  will  secure  prior 
right.29  And  even  though  it  could  be  assumed  that  the  sov- 
ereign might  be  barred  from  the  assertion  of  sovereign  rights 
by  acquiescence  in  encroachments  upon  sovereign  preroga- 
tives such  view  could  not  be  extended  to  new  or  additional 
encroachments  by  a  public  service  corporation  having  no 
legislative  authority  to  exercise  franchise  rights  or  corporate 
powers  of  the  nature  and  character  attempted  to  be  exercised.30 

29  Commonwealth  v.  Broad  St.  convenience  and  prosperity  of  the 
Rapid  Transit  Co.,  219  Pa.  11,  67  people.  A  State  ought  never  to  be 
Atl.  958.  presumed   to   surrender  this   power; 

30  McCarter,  Atty.  Genl.,  v.  Vine-  because,  like  the  taxing  power,  the 
land  Light  &  Power  Co.  (N.  J.  Ch.,  whole  community  have  an  interest 
1907),  65  Atl.  1041.  in   preserving  it   undiminished;   and 

The  United  States  Supreme  Court  when  a  corporation  alleges,  that  a 
in  the  well-known  case  of  Charles  State  has  surrendered,  for  seventy 
River  Bridge  v.  Warren  Bridge,  11  years,  its  powers  of  improvement 
Pet.  (36  U.  S.)  426,  9  L.  ed.  773,  and  public  accommodation  in  a  great 
asserts  that  the  object  and  the  end  and  important  line  of  travel,  along 
of  all  government  is,  to  promote  the  which  a  vast  number  of  its  citizens 
happiness  and  prosperity  of  the  com-  must  daily  pass,  the  community 
m  unity  by  which  it  is  established;  have  a  right  to  insist,  in  the  language 
and  it  can  never  be  assumed,  that  of  this  court,  "that  its  abandonment 
the  government  intends  to  diminish  ought  not  to  be  presumed,  in  a  case 
its  power  of  accomplishing  the  end  in  which  the  deliberate  purpose  of 
for  which  it  was  created;  and  in  a  the  State  to  abandon  it,  does  not  ap- 
country  like  ours,  free,  active  and  pear."  The  continued  existence  of 
enterprising;  continually  advancing  a  government  would  be  of  no  great 
in  numbers  and  wealth;  new  channels  value,  if,  by  implications  and  pre- 
of  communication  are  daily  found  sumptions,  it  was  disarmed  of  the 
necessary  both  for  travel  and  trade;  powers  necessary  to  accomplish  the 
and    are    essential    to    the    comfort,    ends  of  its  creation;  and  the  func- 

248 


CONSTITUTIONAL   AND   LEGISLATIVE    POWERS  §    138 

Again,  it  is  not  within  the  power  of  the  State  to  permanently 
divest  itself,  by  action  or  inaction  of  its  police  powers,  and  this 
is  also  true  as  to  any  subordinate  subdivision  or  agency  of  the 
State,  acting  under  a  delegation  of  authority  from  the  State; 31 
nor  can  a  State  by  any  contract  divest  itself  of  the  power  to 
make  police  regulations.32  The  right  to  exercise  the  police 
power  is  a  continuing  one  that  cannot  be  limited  or  contracted 
away  by  the  State  or  its  municipality,  nor  can  it  be  destroyed 
by  compromise,  as  it  is  immaterial  upon  what  consideration 
the  attempted  contract  is  based.  The  exercise  of  the  police 
power  in  the  interest  of  public  health  and  safety  is  to  be  main- 
tained unhampered  by  contracts  in  private  interests,  and 
uncompensated  obedience  to  an  ordinance  passed  in  its  ex- 
ercise is  not  violative  of  property  rights  protected  by  the 
Federal  Constitution ;  so  an  ordinance  of  a  municipality,  valid 
under  the  state  law  as  construed  by  its  highest  court,  which 
compels  a  railroad  to  repair  a  viaduct  constructed,  after  the 
opening  of  the  railroad,  by  a  city  in  pursuance  of  a  contract 
relieving  the  railroad,  for  a  substantial  consideration,  from 

tions  it  was  designed  to  perform,  State,  would,  in  this  instance,  be 
transferred  to  the  hands  of  privi-  affected  by  the  surrender  of  this 
leged  corporations.  The  rule  of  con-  great  line  of  travel  to  a  single  corpo- 
struction  announced  by  the  court,  in  ration,  with  the  right  to  exact  toll 
the  case  of  the  Providence  Bank  v.  and  exclude  competition  for  seventy 
Billings,  4  Pet.  (29  U.  S.)  514,  7  L.  years.  While  the  rights  of  private 
ed.  339,  was  not  confined  to  the  tax-  property  are  sacredly  guarded,  we 
ing  power,  nor  is  it  so  limited  in  the  must  not  forget  that  the  corn- 
opinion  delivered;  on  the  contrary,  munity  also  have  rights;  and  that  the 
it  was  distinctly  placed  on  the  happiness  and  well-being  of  every 
ground,  that  the  interests  of  the  com-  citizen  depends  on  their  faithful 
munity  were  concerned  in  preserving  preservation. 

undiminished   the  power  in  question;  3I  State   v.   St.    Paul,   Minneapolis 

and    whenever    any    power    of    the  &  Manitoba  Ry.  Co.,  98  Minn.  380, 

State  is  said  to  be  surrendered  or  108  N.  W.  261.    See  §  149,  herein, 

diminished,  whether  it  be  the  taxing  32  Beer  Co.    v.    Massachusetts,   97 

power,   or   any  other  affecting   the  U.  S.  25,  24  L.  ed.  989.    See  also  St. 

public   interest,   the  same   principle  Louis  &  San  Francisco  Ry.  Co.  v. 

applies  and  the  rule  of  construction  Matthews,  165  U.  S.  1,  23,  41  L.  ed. 

must    be   the   same.      No    one    will  611,  17  Sup.  Ct.  243,  per  Bradley,  J.; 

question,   that  the  interests  of  the  State  v.  Northern   Pacific  Ry.  Co., 

great    body    of    the    people    of    the  (Minn.),  108  N.  W.  269. 

249 


$    139  SOURCE   OF   FRANCHISE    CONTINUED— STATE, 

making  any  repairs  thereon  for  a  term  of  years  is  not  void 
under  the  contract  or  the  due  process  clause  of  the  Constitu- 
tion.33 Again,  the  power  of  a  State  to  regulate  the  forms  of 
administering  justice  is  an  incident  of  sovereignty,  and  its 
surrender  is  never  to  be  presumed.34  It  is  held,  in  a  compara- 
tively late  case  in  the  United  States  Supreme  Court,  that  the 
rule  that  every  doubt  is  resolved  in  favor  of  the  continuance 
of  governmental  power,  and  that  clear  and  unmistakable  evi- 
dence of  the  intent  to  part  therewith  is  required,  which  ap- 
plies in  determining  whether  a  legislative  contract  of  exemp- 
tion from  such  power  was  granted  also  applies  in  determining 
whether  its  transfer  to  another  was  authorized  or  directed.35 

§  139.  Legislative  Powers  of  Territory— Corporations 
Created  by  Territory  Follow  It  into  Union.— The  power  of 
territorial  legislatures  extends  to  all  rightful  objects  of  legis- 
lation subject  to  the  restriction  that  laws  enacted  by  them 
shall  not  be  inconsistent  with  the  laws  and  Constitution  of 
the  United  States.36  But  it  is  held  that  by  the  admission  of  a 
Territory  as  a  State,  the  territorial  government  ceases  to  exist 
and  all  authority  under  it.37  On  the  admission,  however,  of 
a  Territory  into  the  Union  corporations  created  under  terri- 
torial laws  become  corporations  of  such  State.38  While  a  State 
upon  its  admission  to  the  Union  is  on  an  equal  footing  with 
every  other  State  and,  except  as  restrained  by  the  Constitution, 
has  full  and  complete  jurisdiction  over  all  persons  and  things 
within  its  limits,  still  Congress  has  power  to  regulate  commerce 

33  Northern  Pacific  Ry.  Co.  v.  Ferris  v.  Higley,  20  Wall.  (87  U.  S.) 
Duluth,  208  U.  S.  583.  375,  22  L.  ed.  383.    See  §  130,  herein. 

34  Railroad  Co.  v.  Hecht,  95  U.  S.  37  McNulty  v.  Batty,  10  How. 
168,  24  L.  ed.  423.  (51  U.  S.)  72,  13  L.  ed.  333.    Com- 

35  Rochester  Ry.  Co.  v.  City  of  pare  Wastl  v.  Montana  Union  Ry. 
Rochester,  205  U.  S.  236,  248,  51  Co.,  24  Mont.  159,  61  Pac.  9;  Criswell 
L.  ed.  784,  27  Sup.  Ct.  — .  v.   Railway  Co.,    17  Mont.   189,  42 

36  American  Ins.  Co.  v.  Canter,  1  Pac.  767. 

Pet.   (26  U.  S.)  511,  7  L.  ed.  242.  38  Kansas  Pacific  R.  Co.  v.  Atchi- 

See  also  Walker  v.  New  Mexico  &  son,  Topeka  &  Sante  Fe  R.  Co.,  112 

Southern  Pacific  Rd.  Co.,  165  U.  S.  U.  S.  414,  28  L.  ed.  794,  5  Sup.  Ct. 

593,  41  L.  ed.  837,  17  Sup.  Ct.  421;  208. 

250 


CONSTITUTIONAL    AND    LEGISLATIVE    POWERS  §    140 

with  the  Indian  tribes,  and  such  power  is  paramount  and  su- 
perior to  the  authority  of  the  State  within  whose  limits  are  the 
Indian  tribes.39 

§  140.  Legislative  Power  to  Grant  Implies  Power  to  Re- 
fuse Franchise — Refusal  by  Subordinate  Body.40 — The  legis- 
lative power  to  grant  a  franchise  or  privilege  implies  a  power 
to  withhold  or  refuse  it.41  And  where  the  constitution  of  a 
State  provides  that  any  association  or  corporation,  organized 
for  that  purpose,  or  any  individual,  shall  have  the  right  to 
construct  and  maintain  lines  of  telegraph  and  telephone 
within  the  State,  and  declares  all  such  companies  to  be  common 
carriers  and  subject  to  legislative  control,  and  further  pro- 
vides that  railroad  corporations  organized  and  doing  business 
in  the  State  shall  allow  such  telegraph  and  telephone  com- 
panies certain  rights  and  privileges,  and  also  gives  the  latter 
the  right  of  eminent  domain,  and  authorizes  the  legislature, 
by  general  law  of  uniform  operation,  to  provide  reasonable 
regulations  to  give  effect  to  these  provisions,  such  provisions 
are  not  self -operative,  and  in  the  absence  of  the  provided  for 
regulations  by  the  legislature  no  rights  are  conferred  on  the 
persons  specified,  but  if  the  legislature  does  authorize  the  con- 
struction of  such  lines  subject,  as  to  rights  of  way  within  the 
corporate  limits  of  a  city,  to  the  consent  of  the  city  council, 
and,  by  another  statute,  the  authority  to  regulate  and  the  com- 
plete control  of  such  lines  is  given  to  cities  of  a  certain  class 
with  power  to  authorize  or  prohibit  the  use  of  electricity  at, 
in  or  upon  any  of  their  streets,  the  power  to  refuse  is  correla- 
tive with  the  power  to  consent  and  the  city's  authority  is  not 
limited  to  a  reasonable  regulation  of  the  method  of  using  its 
streets  for  the  above  purposes.     In  brief,  this  case  decides 

89  Dick  v.  United  States,  208  U.  S.  v.  Boston  Terminal  Co.,   184  Mass. 

340.  566,  69  N.  E.  346. 

*°  See  §  187,  herein.  "The  State  is  the  source  of  all  such 

"Colegrave  Water  Supply  Co.  v.  franchises,  to  be  granted  or  withheld 

City  of  Hollywood    (Cal.,   1907),   90  by  (he  legislature  at  its  discretion." 

Pac.  1053;  Boston  Electric  Light  Co.  Stale  v.  Moore  &  Ligon,  19  Ala.  520, 

per  Parsons,  J . 

251 


§    140  SOURCE   OF   FRANCHISE   CONTINUED — STATE, 

that  notwithstanding  a  constitutional  provision  authorizing 
the  construction  of  telegraph  and  telephone  lines  within  a 
State  and  giving  such  companies  the  power  of  eminent  domain, 
the  legislature,  acting  under  an  authority  to  provide  reason- 
able regulations  to  give  effect  to  such  section,  may  delegate 
to  a  city  the  right  to  grant  or  refuse  the  use  of  its  streets  for 
the  construction  of  such  lines.42  But  the  refusal  of  a  commis- 
sioner to  designate  the  location  of  poles  cannot  be  arbitrary 
and  unjustified,  where  such  authority  to  designate  is  delegated 
to  him,  but  in  case  of  such  refusal  the  legal  course  should  be 
pursued  to  compel  the  commissioner  to  act,  and  the  company 
will  not  be  warranted  in  proceeding  to  erect  its  poles  without 
thus  securing  the  right  to  do  so.43  In  this  case  the  common 
council  of  a  city  granted  permission  to  a  telephone  exchange 
company,  in  accordance  with  its  request  therefor,  to  extend 
its  telephone  poles  and  wires  along  certain  streets,  upon  con- 
dition that  the  commissioner  of  public  works  should  designate 
the  location  of  the  poles  to  be  erected,  and  that  the  extension 
of  the  system  should  be  acceptable  to  and  approved  by  him, 

42  State  ex  rel.  Spokane  &  British  Am.  Elec.  Cas.  11;  Michigan  Teleph. 

Columbia  Teleph.    &  Teleg.    Co.    v.  Co.  v.  City  of  St.  Joseph,  121  Mich. 

City  of  Spokane,  24  Wash.  53,  63  502,  80  N.  W.  383,  47  L.  R.  A.  87; 

Pac.  1116,  7  Am.  Elec.  Cas.  96.    See  Inhabitants  of  Township  of  Summit 

Michigan    Teleph.    Co.    v.    City    of  v.  New  York  &  New  Jersey  Teleph. 

Benton  Harbor,   121   Mich.  512,  80  Co.,  57  N.  J.  Eq.  123,  41  Atl.  146,  7 

N.    W.    386,    7    Am.    Elec.    Cas.    9;  Am.  Elec.  Cas.  58;  Barhite  v.  Home 

State  v.  Frost  (Neb.,  1907),  110  N.  Teleph.  Co.,  50  N.  Y.  App.  Div.  25, 

W.    986;    Nebraska   Teleph.    Co.    v.  7  Am.  Elec.  <Cas.  75;  State  ex  rel. 

Western  Independent  Long  Distance  Wisconsin    Teleph.    Co.    v.    City   of 

Teleph.  Co.,  68  Neb.  772,  95  N.  W.  Sheboygan,  111  Wis.  23,  86  N.  W. 

18,  8  Am.  Elec.  Cas.  32;  State  ex  rel.  657,  7  Am.  Elec.  Cas.  109. 
New   York    &   New   Jersey   Teleph.        Similar  constitutional  provision  is 

Co.  v.  Mayor,  etc.,  of  Bound  Brook,  held  not  self-executing,  but  it  is  also 

66  N.  J.  L.  168,  48  Atl.  1022,  7  Am.  decided    that    when    the    legislature 

Elec.  Cas.  65;  Utica,  City  of,  v.  Utica  acts  it  must  do  so  under  a  general 

Teleph.  Co.,  24  N.  Y.  App.  Div.  361,  statute  so  as  to  give  effect  to  the  con- 

7  Am.  Elec.  Cas.  67;  State  v.  Taylor,  stitution.     State  v.  City  of  Helena, 

36  Wash.  607,  79  Pac.  286;  Joyce  on  34  Mont.  67,  85  Pac.  744. 
Electric  Law  (2d  ed.),  §  353.     Com-       43  St.  Paul,  City  of,  v.  Freedy,  86 

pare   Chamberlain   v.    Iowa  Teleph.  Minn.  350,  90  N.  W.  781,  8  Am.  Elec. 

Co.,  119  Iowa,  619,  93  N.  W.  596,  8  Cas.  29. 

252 


CONSTITUTIONAL  AND   LEGISLATIVE   POWERS    §§    141,  142 

and  it  was  held  that  the  commissioner's  action,  as  required  by 
the  permit,  was  a  prerequisite  to  the  exercise  by  the  company 
of  whatever  authority  the  permit  conferred  upon  the  company, 
even  conceding  that  the  common  council  had  power  to  desig- 
nate the  locality  and  the  method  of  constructing  such  exten- 
sion, without  regard  to  the  commissioner.  But  the  manager 
of  the  telephone  company  having  been  arrested  for  violating 
an  ordinance  for  excavating  in  the  streets  contrary  to  the  pro- 
hibition thereof,  it  constituted  no  defense  that  the  reasons 
assigned  by  the  commissioner  for  his  refusal  were  purely  arbi- 
trary and  unjustified.  Again,  where  the  general  law,  under 
which  the  construction  of  street  railroads  is  authorized,  re- 
quires the  consent  of  the  railroad  commissioners,  and  such 
board  refuses  its  consent,  the  legislature  has  power  by  retro- 
spective action  to  cure  the  defect  existing  because  of  such 
refusal.44 

§  141.  Consent  of  Subordinate  Body  Unnecessary  to 
Exercise  of  Power  by  Legislature. — The  legislature  may  ex- 
ercise its  power  to  grant  rights,  privileges  and  franchises,  or 
to  incorporate  a  company,  without  obtaining  the  consent  of 
a  subordinate  body  to  whom  it  has  delegated  certain  authority. 
Thus  it  may  authorize  the  construction  of  a  street  railroad 
without  the  consent  of  railroad  commissioners,45  or  without 
consulting  a  municipality  upon  the  streets  of  which  the  rail- 
road tracks  are  to  be  laid,46  and  it  has  the  same  right  which  it 
has  vested  in  county  courts  relative  to  the  erection  of  toll 
bridges.47 

§  142.  Corporations  Created  by  Rebel  State. — A  corpora- 
tion created  by  a  rebel  State  during  the  war,  if  not  for  a  hostile 

««  Kittinger    v.    Buffalo    Traction    Div.  329,  aff'd  160  N.  Y.  377,  54  N. 
Co.,  49  N.  Y.  Supp.  713,  25  App.  Div.    E.  1081. 
329,  aff'd  160  N.  Y.  377.  "  Central  R.   &  E.  Co.'s  Appeal, 

45  Kittinger    v.    Buffalo    Traction    67  Conn.  197,  35  Atl.  32. 
Co.,  49  N.  Y.  Supp.  713,  25  App.        *'  Dyer  v.  Tuscaloosa  Bridge  Co., 

2  Port.  (Ala.)  296,  27  Am.  Dec.  665. 

253 


§§    143,  144     SOURCE   OF    FRANCHISE   CONTINUED — STATE, 

purpose,  has  power  since  the  war,  to  sue  in  the  United  States 
courts.48 

§  143.  Legislative  Power— Grant  of  Additional  Franchises 
— Amendments. — The  act  of  creating  a  corporation  by  confer- 
ring upon  an  association  of  individuals  certain  strictly  corporate 
powers  embracing  only  powers  and  privileges  not  possessed  by 
individuals  and  partnerships,  and  then  granting  to  it  other 
privileges,  enlarging  or  restricting  its  right  to  the  enjoyment 
of  other  franchises  that  may  be  possessed  in  common  with 
natural  persons,  and  regulating  its  external  relations,  are  dis- 
tinct and  independent,  and  there  is  nothing  in  the  constitution 
of  California  prohibiting  the  latter  power  to  the  legislature.49 
So  a  corporation's  powers  may  be  enlarged  in  harmony  with  its 
corporate  purposes,  by  amendment  by  the  legislature  under 
authority  reserved  in  the  grant.50  The  right  to  amend  is, 
however,  fully  considered  elsewhere  herein. 

§  144.  Legislative  Grant  Necessary — Roads,  Highways, 
Bridges   and   Ferries — Eminent   Domain— Generally. — The 

laying  off,  regulating  and  keeping  in  repair,  roads,  highways, 
bridges  and  ferries,  for  the  public  use  and  convenience  of  the 
citizens,  is  an  exercise  of  the  supreme  authority  of  the  State. 
No  private  person  can  establish  a  public  highway,  or  a  public 
ferry  or  railroad,  or  charge  tolls  for  the  use  of  the  same  without 
authority  from  the  legislature,  direct  or  derived.  The  right  of 
eminent  domain  cannot  be  exercised  without  a  legislative 
grant,  and  no  person,  natural  or  artificial,  can  become  a  body 
politic  or  corporate  and  exercise  these  rights  or  privileges, 

48  United  States  v.  Insurance  Com-  the  Constitution,  before  such  a  suit 

panies,  22  Wall.  (89  U.  S.)  99,  22  L.  could  be  prosecuted, 

ed.  816.     Examine  Texas  v.  White,  Effect  of  war  on  pre-existing  valid 

7  Wall.  (74  U.  S.)  700,  19  L.  ed.  227,  contract,  see  Joyce   on  Ins.  §§  289- 

as  to  suit  by  Texas  during  the  re-  291. 

bellion,  and  necessity  that  the  gov-  49  Southern  Pac.  R.  Co.  v.  Orton, 

ernment  and  the  people  of  the  State  32  Fed.  457.     See  §  124,  herein, 

should   be   restored   to   peaceful   re-  80  McKee  v.  Chautauqua  Assembly, 

lations  to  the  United  States,  under  124  Fed.  808, 130  Fed.  536,  65  C.  C.  8. 

254 


CONSTITUTIONAL    AND    LEGISLATIVE    POWERS  §    144 

which  inhere  in  the  sovereign  power,  without  legislative  au- 
thority.51 The  state  authorities  have  power  to  grant  a  ferry- 
franchise  to  the  middle  of  a  river,  which  is  a  boundary  line 
between  it  and  another  State  or  foreign  country,  the  power  to 
establish  ferries  being  coextensive  with  the  legislative  juris- 
diction of  the  State,  and  such  exercise  of  power  does  not  con- 
flict with  the  Constitution  of  the  United  States,  under  which 
Congress  has  power  to  regulate  commerce  between  the  States 
and  with  foreign  nations.52 

51  "  Such  rights  and  powers   must  The  right  to  lay  off,  regulate  and 

exist  under  every  form  of  society,  maintain    roads,    highways,    bridges 

They  are  always  educed  by  the  laws  and  ferries  for  public  use  "is  an  exer- 

and  customs  of  the  community.    Un-  cise  of  the  supreme  authority  of  the 

der  our  system,  their  existence  and  State  coeval  with  the  institution  of 

disposal    are   under   the    control   of  civic   society,  and    indispensable  to 

the  legislative  department,  and  they  the  free  exercise  of  social  and   com- 

cannot  be  assumed  or  exercised  with-  mercial  intercourse.     *     *     *     It  is 

out   legislative   authority.      No   pri-  a  part  of  the  eminent  domain,  and 

vate  person  can  establish  a   public  as  such  is  treated  by  all  writers  on 

highway,  or  a  public  ferry,  or  rail-  public  law.     It  is   upon    this    prin- 

road,  or  charge  tolls  for  the  use  of  ciple  that  roads  are  laid  out."  Dyer 

the    same,    without    authority    from  v.    Tuscaloosa    Bridge   Co.,    2    Port, 

the    legislature,    direct    or    derived.  (Ala.)  296,  303,  304,   27  Am.  Dec. 

*     *     *     The  right  of  eminent  do-  655. 

main  can  only  be  exercised  by  virtue  Certain  laws  in  New  York  em- 
of  a  legislative  grant.  *  *  *  No  braced  in  one  scheme.  The  general 
persons  can  make  themselves  a  body  corporation  law,  the  banking  law  re- 
corporate  or  politic  without  legisla-  lating  to  trust  companies  and  the 
tive  authority."  California  v.  Pa-  stock  corporation  laws  were  evi- 
cific  Rd.  Co.,  127  U.  S.  1,  40,  32  L.  dently  intended  to  provide  one  con- 
ed. 150,  8  Sup.  Ct.  1073,  per  Brad-  sistent  scheme  of  legislation.  Cause 
ley,  J.  v.  Boldt,  99  N.  Y.  Supp.  442,  443, 

"No  one  can  exercise  the  right  of  444,  49  Misc.  340,  case  modified,  100 

eminent  domain,  or  establish  a  high-  N.  Y.  Supp.  1 1 17,  115  App.  Div.  879, 

way  or  railway  and  charge  tolls  for  quoting  Ilirshfeld  v.  Bopp,  145  N.  Y. 

the  same  within  a  grant  from  the  leg-  84,  93,  39  N.  E.  817. 

islature.    Such  rights  as  inhere  in  the  "  Tugwell  &  Madison  v.  Eagle  Pass 

sovereign  power  can  only  be  exer-  Ferry  Co.,  74  Tex.  450,  490,  9  S.  W. 

cised  by  the  individual  or  corpora-  120. 

tion  by  virtue  of  a  grant  from  such  License  or  legislative  grant  is  nee- 
sovereign  power,  and  when  the  essary  to  exercise  right  of  keeping 
State  grants  such  a  right  it  is  a  public  ferry  for  toll.  Milton  v.  Un- 
franchise." Lasher  v.  People,  183  III.  den,  32  Ala.  30,  70  Am.  Dec.  523  (so 
226,  233,  per  Cartwright,  C.  J.  under  statute  from  yen-  1820);  Pat- 

255 


§    145  SOURCE   OF   FRANCHISE   CONTINUED — STATE, 

§  145.  Bridge  Corporation — Bridges — Commerce — Navi- 
gable Waters  Wholly  Within  State— Power  of  State  as  to 
Toll  Bridges — Railroad  TollBridge. — Although  navigable  wa- 
ters of  the  United  States  lie  wholly  within  a  State,  Congress  in 
the  exercise  of  its  power  under  the  commerce  clause  of  the 
Constitution  may  exercise  control  to  the  extent  necessary  to 
protect,  preserve  and  improve  their  free  navigation;  but  until 
that  body  acts,  the  State  has  plenary  authority  over  bridges 
across  them,  and  there  is  nothing  in  the  ordinance  of  July  13, 
1787,  or  in  the  subsequent  legislation  of  Congress,  that  pre- 
cludes the  State  from  exercising  that  authority.53  But  the 
several  States  have  the  power  to  establish  and  regulate  bridges, 
and  the  rates  of  toll  thereon,  whether  within  one  State,  or 
between  two  adjoining  States,  subject  to  the  paramount  au- 
thority of  Congress  over  interstate  commerce.54  It  is  deter- 
mined, however,  that  under  existing  legislation,  the  right  to 
erect  a  structure  in  a  navigable  water  of  the  United  States, 
wholly  within  the  limits  of  a  State,  depends  upon  the  con- 
current or  joint  assent  of  the  state  and  national  governments; 
and  that  neither  the  act  of  Congress  of  March  3,  1899,  c.  425, 
nor  any  previous  act  relating  to  the  erection  of  structures  in 
the  navigable  waters  of  the  United  States,  manifested  any 
purpose  on  the  part  of  Congress  to  assert  the  power  to  invest 
private  persons  with  power  to  erect  such  structures  within  a 

terson  v.  Wollmann,  5  N.  Dak.  608,  in  Murray  v.  Minefee,  20  Ark.  561, 
67  N.  W.  1040,  33  L.  R.  A.  536.  Ex-  that  '  a  ferry  franchise  is  the  creature 
amine  Conway  v.  Taylor,  1  Black,  of  sovereign  power,  and  no  one  can 
(66  U.  S.)  603,  17  L.  ed.  191;  Mills  v.  exercise  it  without  the  consent  of  the 
St.  Clair  County,  8  How.  (49  U.  S.)  State.'  This  is  too  well  settled  by 
569,  12  L.  ed.  1201;  Carroll  v.  Camp-  the  authorities  to  admit  of  discus- 
bell,  108  Mo.  550;  Mayor  of  New  York  sion."  Bell  v.  Clegg,  25  Ark.  26,  28, 
v.  Starin,  106  N.  Y.  1,  27  Wkly.  Dig.  per  Compton,  J. 
124,  8  N.  Y.  St.  R.  655;  Evans  v.  53  Escanaba  Co.  v.  Chicago,  107  U. 
Hughes  County,  3  S.  Dak.  580.  S.  678,  2  Sup.  Ct.  185,  27  L.  ed.  442. 
"The  ownership  of  the  soil  does  See  cases  cited  in  first  note  to  §  127, 
not  necessarily  entitle  the  owner  to  a  herein. 

public  ferry  franchise.     He  can  ex-  54  Covington  &  Cincinnati  Bridge 

ercise    no    such    privilege    until   the  Co.  v.  Kentucky,  154  U.  S.  204,  38  L. 

right  to  do  so  is  conferred  by  the  ed.  962,  14  Sup.  Ct.  1087, 
proper  authority.     This  court  said, 

256 


CONSTITUTIONAL   AND   LEGISLATIVE   POWERS  §    145 

navigable  water  of  the  United  States,  wholly  within  the  terri- 
torial limits  of  a  State,  without  regard  to  the  wishes  of  the 
State  upon  the  subject.55  Again,  the  provision  in  the  act  ad- 
mitting California,  "that  all  the  navigable  waters  within  the 
said  State  shall  be  common  highways  and  forever  free,  as  well 
to  the  inhabitants  to  said  State,  as  to  the  citizens  of  the  Uni- 
ted States,  without  any  tax,  impost,  or  duty  therefor,"  does 
not  deprive  the  State  of  the  power  possessed  by  other  States, 
in  the  absence  of  legislation  by  Congress,  to  authorize  the 
erection  of  bridges  over  navigable  waters  within  the  State.56 
In  determining  the  question  whether  a  bridge  may  be  erected 
over  one  of  its  own  tidal  and  navigable  streams,  it  is  for  the 
municipal  power  to  weigh  and  balance  against  each  other  the 
considerations  which  belong  to  the  subject — the  obstruction 
of  navigation  on  the  one  hand,  and  the  advantage  to  commerce 
on  the  other — and  to  decide  which  shall  be  preferred,  and  how 
far  one  shall  be  made  subservient  to  the  other.  And  if  such 
erection  shall  be  authorized  in  good  faith,  not  covertly  and  for 
an  unconstitutional  purpose,  the  Federal  courts  are  not  bound 
to  enjoin  it.  Congress  may,  however,  interpose  whenever  it 
shall  be  deemed  necessary  by  either  general  or  special  laws. 
It  may  regulate  all  bridges  over  navigable  waters,  remove 
offending  bridges,  and  punish  those  who  shall  thereafter  erect 
them.  Within  the  sphere  of  their  authority,  both  the  legisla- 
tive and  judicial  power  of  the  nation  are  supreme.  Annun- 
ciating these  principles  on  the  one  hand  and  on  the  other,  the 
court  refused  to  enjoin,  at  the  instance  of  a  riparian  owner, 
to  whom  the  injury  would  be  consequential  only,  a  bridge 
about  to  be  built,  under  the  authority  of  the  State  of  Pennsyl- 
vania, by  the  city  of  Philadelphia  over  the  River  Schuylkill, 
a  small  river — tidal  and  navigable,  however,  and  on  which  a 
great  commerce  in  coal  was  carried  on  by  barges — which  river 
was  wholly  within  the  State  of  Pennsylvania,  and  ran  through 
the  corporate  limits  of  the  city  authorized  to  erect  the  bridge; 

"Cummings   v.   Chicago,    188   U.    113  U.  S.  205,  28  L.  ed.  959,  5  Sup. 
S.  410,  23  Sup.  Ct.  472,  47  L.  ed.  525.    Ct.  423. 
59  Cardwell  v.  American  Bridge  Co., 

17  257 


§    146         SOURCE   OF   FRANCHISE   CONTINUED — STATE, 

on  both  sides  of  which  municipal  authority  was  exercised  on 
one  as  much  as  on  the  other;  the  bridge  being  a  matter  of  great 
public  convenience  every  way,  and  another  bridge,  just  like 
it,  having  been  erected  and  in  use  for  many  years,  over  the  same 
stream,  about  500  yards  above.57  Authority  to  grant  the 
franchise  for  establishing  and  maintaining  a  toll  bridge  over 
a  river  where  it  crosses  a  public  highway  in  a  State,  is  vested 
solely  in  the  legislature,  and  may  be  exercised  by  it  or  com- 
mitted to  such  agencies  as  it  may  select.58  The  legislature  has 
power  to  create  a  franchise  to  construct  toll  bridges  in  general 
for  public  use  within  the  State,  and  this  term  may  include  rail- 
road toll  bridges  where  the  term  "  bridge  "  has  been  for  years 
construed  by  the  courts  to  include  railroad  bridges.59  It  has 
been  decided  in  Georgia  that  the  right  to  receive  tolls  for  the 
transportation  of  travelers  and  others  across  a  river  on  a  pub- 
lic highway  is  a  franchise  which  belongs  to  the  people  collec- 
tively.60 "A  grant  of  this  franchise  from  the  public,  in  some 
form,  is,  therefore,  necessary  to  enable  an  individual  to  establish 
and  maintain  a  toll  bridge  for  public  travel.  The  legislature  of 
the  State  alone  has  authority  to  make  such  a  grant.  It  may 
exercise  this  authority  by  direct  legislation,  or  through  agen- 
cies duly  established."  61  And  where  the  constitution  of  a 
State  authorizes  the  legislature  to  provide  for  the  construction 
of  a  bridge  over  navigable  water  it  is  thereby  empowered  to 
regulate  such  construction  and  management  and  it  may  also 
delegate  such  authority.62 

§  146.  Pier  Erected  Without  Authority  in  Navigable  Wa- 
ter— Unlawful  Structure — Owner's  Liability. — A  pier  erected 
in  the  navigable  water  of  the  Mississippi  River  for  the  sole 
use  of  the  riparian  owner,  as  part  of  a  boom  for  saw-logs, 

57  Gilman  v.  Philadelphia,  3  Wall.        60  Young  v.  Harrison,  6  Ga.  130. 
(70  U.  S.)  713,  18  L.  ed.  96.  61  Wright  v.  Nagle,  101  U.  S.  791, 

58  Wright  v.  Nagle,  101  U.  S.  791,  794,  25  L.  ed.  921,  per  Waite,  C.  J. 
25  L.  ed.  921.  ">2  Schinzel  v.  Best,  92  N.  Y.  Supp. 

"Southern     Illinois     &     Missouri    754,  45  Misc.  455,  aff'g  96  N.  Y.  Supp. 
Bridge  Co.  v.  Stone,  174  Mo.  1,  63  L.    1145,  109  App.  Div.  917. 
R.  A.  301,  73  S.  W.  453. 

258 


CONSTITUTIONAL    AND    LEGISLATIVE    POWERS  §    146 

without  license  or  authority  of  any  kind,  except  such  as  may 
arise  from  his  ownership  of  the  adjacent  shore,  is  an  unlawful 
structure,  and  the  owner  is  liable  for  the  sinking  of  a  barge 
run  against  it  in  the  night.  Such  a  structure  differs  very  ma- 
terially from  wharves,  piers,  and  others  of  like  character,  made 
to  facilitate  and  aid  navigation,  and  generally  regulated  by 
city  or  town  ordinances,  or  by  statutes  of  the  State,  or  other 
competent  authority.  They  also  have  a  very  different  stand- 
ing in  the  courts  from  piers  built  for  railroad  bridges  across 
navigable  streams,  which  are  authorized  by  acts  of  Congress 
or  statutes  of  the  States.63  But  land  under  navigable  waters 
may  be  granted,  even  against  the  owner  of  the  upland,  for  the 
purpose  of  promoting  the  State's  commerce.64 

63  Atlee  v.   Packet  Co.,   21   Wall,  suant  to  the  statutes  of  the  State,  a 

(88  U.  S.)  389,  22  L.  ed.  619,  cited  in  general  system  of  harbor  lines  in  the 

Prosser  v.  Northern  Pacific  R.  Co.,  harbor,  and  from  filing  a  plan  thereof . 

152    U.  S.  59,    64,    38   L.    ed.    353,  Also  cited  in  Shively  v.  Bowlby,  152 

14  Sup.  Ct.  — ,  which   holds  that  a  U.  S.  1,  41,  14  Sup.  Ct.  548,  38  L.  ed. 

railroad  corporation,  which  has  laid  331,  which  case  considers  the  ques- 

out,  constructed  and  maintained  its  tion  of  title  to   tidal   lands,   distin- 

railroad    for    a    distance    along    the  guishes  the  common  law  and  Amer- 

shore  of  a  harbor,  below  high  water  ican  rule,  the  status  of  territories  in 

mark,  claiming  under  its  charter  the  this  connection,  and  asserts  that  no 

right  to  do  so,  and  the  ownership  of  one  can  erect  a  building  or  a  wharf 

adjacent  lands  under  tide  waters  of  upon  such  lands  without  license, 

the  harbor,  cannot  maintain  a  bill  in  84  De   Lancey  v.   Hawkins,  49  N. 

equity  to  restrain  a  board  of  com-  Y.  Supp.  469,  23  App.  Div.  8,  aff'g 

missioners    from    establishing,    pur-  163  N.  Y.  587,  57  N.  E.  1108. 


259 


§  147       DELEGATION  OF  POWER — GENERALLY 


CHAPTER  X. 

DELEGATION   OF   POWER — GENERALLY. 

§  147.  Delegation  of  Power — Dis-  §  148.  Grant  of  Franchise  May  Be 
tinction  Between  Power  to  Made  Through  Lawful  Del- 
Make  Laws  and  Dis-  egated  Agency. 
cretion  as  to  Their  Execu-  149.  Delegation  of  Power — Police 
tion  or  Administration —  Regulations — Generally. 
Power  to  Regulate.  150.  Delegation  of  Power  of  Tax- 
ation. 

§  147.  Delegation  of  Power — Distinction  Between  Power 
to  Make  Laws  and  Discretion  as  to  Their  Execution  or 
Administration — Power  to  Regulate. — A  distinction  exists 
between  a  delegation  of  power  to  fix  or  make  a  law,  which 
involves  a  discretion  as  to  what  the  law  shall  be,  and  employ- 
ing an  agency  which  is  empowered  to  exercise  a  discretion  in 
determining  when  the  law  as  enacted  shall  be  enforced,  or  to 
determine  questions  of  fact  essential  to  the  application  of  the 
law;  the  power  to  legislate  which  is  vested  in  the  State  cannot 
be  delegated;  the  administrative  duties  in  carrying  out  legis- 
lative powers  may  be  delegated.1  The  State  has  power  to 
regulate  public  service  corporations,  or  the  conduct  of  a  busi- 
ness affected  with  a  public  interest,  and  to  fix  and  determine, 

1  United  States  v.   Union   Bridge  former  involves  legislative,  the  latter 

Co.,  143  Fed.  377;  People  v.  Grand  administrative  discretion.     The  true 

Trunk  Ry.  Co.,  232  111.  292,  297,  83  distinction    between    delegation    of 

N.  E.  839,  per  Carter,   J.,   quoting  power  to  make  law  and  delegation  of 

Sutherland    on    Stat.    Construction,  power  to  administer  law,  is  this:  the 

p.  611.  former  contemplates  exercise  of  dis- 

Authority  which  by  the  Constitu-  cretion  as  to  what  the  law  shall  be, 

tion  is  vested  in  the  legislature,  is  the  the  other,  exercise  of   discretion  in 

power  to  make  the  law.     It  may  be  the     administration     of     the     law. 

exercised,   leaving  in  the  particular  State    ex    rel.     Milwaukee    Medical 

instance  to  some  agency  the  duty  of  College  v.  Chittenden,  127  Wis.  468, 

determining  questions  of  fact  essen-  10  N.  W.  500. 
tial  to  the  application  thereof;  the 

260 


DELEGATION   OF   POWER — GENERALLY  §    148 

as  a  rule  for  future  observance,  the  rates  and  charges  for  serv- 
ices rendered.  This  power  is  wholly  a  legislative  or  admin- 
istrative function.  The  legislature  may  itself  prescribe  such 
regulations  or  delegate  the  exercise  of  such  powers  in  matters 
of  detail  to  some  administrative  board  or  body  of  its  own 
creation.  To  prescribe  a  tariff  of  rates  and  charges  is  a  legis- 
lative function,  but  to  determine  whether  existing  or  pre- 
scribed rates  and  charges  are  reasonable  or  unreasonable  is  a 
judicial  function,  so  the  use  of  property  of  such  corporations 
may  be  controlled  by  the  State  by  regulations  providing  for 
the  safety  and  convenience  of  the  public;  restrictions  may 
also  be  imposed  prohibiting  unjust  discrimination  and  un- 
reasonable rates  or  charges,  but  this  limitation  exists  as  to 
such  power,  that  it  cannot  be  exercised  to  deprive  owners  of 
their  property  without  due  process  of  law,  or  without  com- 
pensation, nor  can  they  be  denied  the  equal  protection  of  the 
laws.2  The  above-stated  principle,  as  to  non-delegation  of 
legislative  powers,  is  also  one  which  does  not  operate  to  pre- 
vent the  exercise  of  certain  functions  by  certain  subordinate 
bodies  in  relation  to  the  creation  of  corporations  and  the  grant 
of  privileges  or  franchises,  as  will  hereinafter  appear.3 

§  148.  Grant  of  Franchise  May  Be  Made  Through  Law- 
ful Delegated  Agency.— In  England,  although  the  contrary 
doctrine  was  formerly  asserted,  it  is  now  well  settled  that  the 
power  of  establishing  corporations  may,  in  a  certain  sense,  be 
delegated.4  So,  in  this  country  it  is  not  essential  to  a  franchise 
that  a  grant  be  made  direct;  it  is  sufficient  that  it  be  made 
through  a  legitimate  legislative  agency; 5  or,  to  state  the  rule 

2  Western    Union    Teleg.    Co.    v.  3  See  §§  47,  48,  herein,  also  various 

Myatt,  98  Fed.  335,  considered  and  sections  throughout  this  treatise. 

distinguished  as  having  no  applica-  *  Franklin    Bridge    Co.    v.    Young 

lion  to  the  case  before  it  in  Western  Wood,  14  Ga.  80.    In  this  case  it  was 

1'nion   Teleg.   Co.   v.   Andrews,    154  a   question   whether   the    legislature 

Fed.  95,  103;  cited  in  Louisville  &  N.  could  transfer  the  lawmaking  power 

R.  Co.  v.  Brown,  123  Fed.  946  (a  case  to  any  corporation, 

relating  to  the  powers  and  nature  of  5  State  v.  Portage  City  Water  Co., 

the  functions  of  a  state  railroad  com-  107  Wis.  441,  83  N.  W.  697. 
mission). 

261 


§    148  DELEGATION   OF   POWER — GENERALLY 

in  another  form,  the  legislature  may  exercise  its  authority  by 
direct  legislation,  or  through  agencies  duly  established,  having 
power  for  that  purpose.  The  grant,  when  made,  binds  the 
public,  and  is  directly  01  indirectly  the  act  of  the  State.  The 
easement  is  a  legislative  grant,  whether  made  directly  by  the 
legislature  itself,  or  by  one  of  its  properly  constituted  instru- 
mentalities.6 So  it  is  declared  in  a  New  York  case  that:  All 
franchises  or  privileges  known  by  that  term  proceed  from  the 
State  in  the  exercise  of  its  sovereign  powers.  Through  different 
mediums  or  agencies  the  State  may  act  in  granting  franchises, 
but  it  is  itself  the  source  and  depositary  from  which  the  right 
proceeds.  Sometimes  the  franchise  is  conferred  directly  by 
the  State  through  some  grant  or  legislative  enactment,  but 
more  generally  the  sovereign  delegates  its  power  to  municipal 
or  local  authorities.7  This  rule  applies  to  ferries;8  to  a  fran- 
chise to  build  a  bridge  and  take  tolls ; 9  to  the  right  to  make  use 
of  city  streets  for  railroad  purposes;10  and  the   franchise  or 

6  Wright  v.  Nagle,  101  U.  S.  791,    and  in  this  country  vests  in  an  indi- 
794,  25  L.  ed.  921,  per  Waite,  C.  J.       vidual  only  by  a  legislative  grant, 

"  It  makes  no  difference  whether  and  it  makes  no  difference  whether 

the  grant  be  made  directly  from  the  the  grant  be  made  directly  by  the 

legislature,  or  by  a  subordinate  body  legislature,  or  by  a  subordinate  body 

to  whom  the  power  is  delegated;  it  to  whom  the  power  is  delegated;  it 

is  still  a  grant  emanating  from  the  is  still  a  grant  emanating  from  the 

sovereign    authority    of    the    State,  authority  of  the  State.     *     *     *     It 

Truckee    &    Tahoe    Turnpike    Road  was   said   in   an   early   English   case 

Co.  v.  Campbell,  44  Cal.  89,  91,  per  that  '  a  ferry  is  publici  juris.    It  is  a 

Rhodes,  J.  franchise  that  no  one  can  erect  with- 

7  Wilcox  v.   McClellan,   185  N.  Y.  out  a  license  from  the  crown.'     Blis- 
9,  16,  77  N.  E.  986,  per  O'Brien,  J.  sett  v.  Hart,  Willes,  508;"  Evans  v. 

8  The  power  to  establish  ferries  is  Hughes  County,  3  S.  Dak.  580,  581, 
one  of  the  attributes  of  sovereignty  582,  54  N.  W.  603,  per  Corson,  J. 
which  is  to  be  exercised  by  the  legis-  9  A  franchise  to  build  a  bridge  and 
lature  itself,  or  by  any  agent  whom  take  tolls  can  "only  be  conferred  by 
that  body  may  authorize  to  act  for  it.  the  legislature,  directly  or  indirectly 
Spease  Ferry,  In  re,  138  N.  C.  219,  through  public  agents  and  tribunals, 
50  S.  E.  625.  in  pursuance  of  a  statute."    Coving- 

The  right  to  maintain  and  operate  ton     Drawbridge   Co.    v.    Shepherd, 

a  ferry  and  to  collect  tolls  is  a  fran-  21  How.  (62  U.  S.)  112,  113,  16  L.  ed. 

chise  or  "right  only  vested  in  indi-  38,  per  Catron,  J.     See  also  Wright 

viduals  by   grant   from  the  govern-  v.  Nagle,  101  U.  S.  791,  25  L.  ed.  921. 

ment.     It  is  a  sovereign  prerogative,  10"The  authority  to  make  use  of 

262 


DELEGATION    OF    POWER — GENERALLY  §    149 

contract  to  construct  waterworks  can  be  conferred  through 
authority  delegated  from  the  State.11  And  a  corporation, 
public  in  its  nature,  such  as  an  irrigation  district,  need  not  be 
created  by  the  legislature  itself,  but  its  organization  will  be 
valid  even  though  it  exists  only  by  or  under  the  supervision 
of  a  local  body.12  Other  instances  of  the  delegation  of  power 
through  lawful  agencies  will  appear  throughout  this  treatise. 

§  149.  Delegation  of  Power — Police  Regulations— Gener- 
ally.— The  police  power  may  be  asserted  directly  by  the 
legislature,  or  may,  in  the  absence  of  constitutional  restric- 
tions, be  delegated  to  several  municipal  corporations  or  other 
agencies  provided  for  its  exercise.13  The  legislature  may  also 
properly  designate  any  agency  it  deems  proper  within  the 
State,  reasonably  calculated  to  act  justly  in  the  matter,  to 
nominate  persons  for  appointment  to  administer  police  regu- 
lations.14 The  general  police  power  is  reserved  to  the  States 
subject  to  this  limitation:  that  it  may  not  trespass  on  the  rights 
and  powers  vested  in  the  national  government,15  and  must 
be  exercised  in  subordination  to  the  Constitution.16  That 
such  power  is  restricted  in  its  exercise  to  the  national  Con- 
stitution, is  also  shown  by  those  cases  in  which  grants  of 
exclusive  privileges  respecting  public  highways  and  bridges 

the  public  streets  of  a  city  for  rail-        "  Washburn  Water  Works   Co.  v. 

road  purposes    primarily    resides  in  City  of  Washburn,  129  Wis.  73,  80, 

the  State,  and  is  part  of  the  sovereign  108  N.  W.  194,  per  Kerwin,  J. 
power;  and  the  right  or  privilege  of        12  Central     Irrigation    District    v. 

constructing  and  operating  railroads  De  Lappe,  79  Cal.  351,  21  Pac.  825. 
in  the  streets,  which  for  convenience        13  Chicago,   Burlington    &    Quincy 

is  called  a  'franchise'  must  always  Rd.  Co.  v.  Nebraska,  47    Neb.    549, 

proceed  from  that  source,  whatever  3  Am.  &   Eng.  R.    Cas.  (N.  S.)  573, 

may  be  the  agency  through  which  it  41  L.  R.  A.  481,  66  N.  W.  624. 
is  conferred.    Adee  v.  Nassau  Electric       Police  power — Power  of  courts  as 

R.  Co.,  72  N.  Y.  Supp.  992,  1000,  65  to,  see  §  184,  herein. 
App.   Div.  529,  per  Woodward,  J.,        M  State  ex  rel.  Milwaukee   Medical 

case  affirmed  (mem.),  177  N.  Y.  548,  College  v.  Chittenden,  127  Wis.  468, 

69  N.  E.  1120.    See  also  Beekman  v.  10  N.  W.  500.    See  §  138,  heroin. 
Third  Ave.  Rd.  Co.,  153  N.  Y.  144,        ,s  Heff,  Matter  of,  197  U.  S.  488, 

152,  47  N.   E.  277,  per  O'Brien,  J.;  49  L.  ed.  848,  25  Sup.  Ct.  506. 
Fanning  v.  Osborne,  102  N.  Y.  441,        1B  Stehmeyer  v.  Charleston,  53  S. 

7N.  E.305.  C.  259,  31  S.  E.  322. 

263 


§    149  DELEGATION    OF    POWER — GENERALLY 

over  navigable  waters  have  been  sustained  as  contracts,  the 
obligations  of  which  are  fully  protected  against  impairment 
by  state  enactments.17  But  the  Fourteenth  Amendment  to 
the  Constitution  does  not  limit  the  subjects  in  relation  to  which 
the  police  power  of  the  State  may  be  exercised  for  the  protec- 
tion of  its  citizens.18  Nor  is  the  power  of  the  Federal  govern- 
ment to  regulate  commerce  in  conflict  with  the  reserved  rights 
of  the  several  States  under  the  Constitution,  nor  does  it  deprive 
them  of  the  power  to  pass  laws  in  the  nature  of  police  regu- 
lations under  what  is  known  as  "the  police  power,"  but  on 
all  matters  that  are  the  subjects  of  commerce  within  the  mean- 
ing of  the  Federal  Constitution,  state  regulations  must  be 
limited  to  subjects  of  police  control  and  must  not  in  them- 
selves be  regulations  of  commerce.19  Nor  is  uncompensated 
obedience  to  a  regulation  enacted  for  the  public  safety  under 
the  police  power  of  the  State  a  taking  of  property  without  due 
compensation,  and  the  constitutional  prohibition  against  the 
taking  of  private  property  without  compensation  is  not  in- 
tended as  a  limitation  of  the  exercise  of  those  police  powers 
which  are  necessary  to  the  tranquillity  of  every  well-ordered 
community,  nor  of  that  general  power  over  private  property 
which  is  necessary  for  the  orderly  existence  of  all  govern- 
ments.20 There  is  also  a  difference  between  ordinary  vehicles 
and  electric  cars  which  the  State  may,  in  the  exercise  of  its 
police  power,  recognize  without  denying  the  company  operat- 
ing the  electric  cars  the  equal  protection  of  the  laws.21  The 
essential  quality  of  the  police  power  as  a  governmental  agency 

17  New  Orleans  Gas  Co.  v.  Louis-   nolly,  113  U.  S.  27,  28  L.  ed.  923,  5 
iana  Light  Co.,  115  U.  S.  650,  662,  29    Sup.  Ct.  357. 

L.  ed.  516,  6  Sup.  Ct.  252,  per  Har-        19  Gibbons  v.  Ogden,  9  Wheat.  (22 

Ian,  J.  U.  S.)  1,  6  L.  ed.  23. 

18  Minneapolis  &  St.  Louis  Ry.  Co.  20  Chicago,  Burlington  &  Quincy 
v.  Beckwith,  129  U.  S.  26,  32  L.  ed.  Ry.  Co.  v.  Drainage  Comrs.,  200  U. 
585,  9  Sup.  Ct.  207,  considering  and  S.  561,  50  L.  ed.  596,  26  Sup.  Ct.  341, 
following  Missouri  Pacific  Ry.  Co.  v.  aff'g  212  111.  103,  72  N.  E.  219. 
Humes,  115  U.  S.  512,  6  Sup.  Ct.  21  Detroit,  Fort  Wayne  &  Belle 
110,  29  L.  ed.  463;  Soon  Hing  v.  Isle  Ry.  v.  Osborn,  189  U.  S.  383,  47 
Crowley,   113  U.  S.  703,  28  L.  ed.  L.  ed.  860,  23  Sup.  Ct.  — . 

1145,  5  Sup.  Ct,  730;  Barbier  v.  Con- 

264 


DELEGATION   OF   POWER — GENERALLY  §    150 

is  that  it  imposes  upon  persons  and  property  burdens  designed 
to  promote  the  safety  and  welfare  of  the  public  at  large ; 22 
and  the  police  power  of  a  State  embraces  regulations  designed 
to  promote  the  public  convenience  or  the  general  prosperity  as 
well  as  those  to  promote  public  health,  morals  or  safety;  it  is 
not  confined  to  the  suppression  of  what  is  offensive,  disorderly 
or  unsanitary,  but  extends  to  what  is  for  the  greatest  welfare 
of  the  State.23 

§  150.  Delegation  of  Power  of  Taxation. — The  power  of 
taxation  is  an  incident  of  sovereignty,  and  essentially  a  legis- 
lative power,  falling,  under  the  general  apportionment  of 
governmental  powers,  to  the  legislative  department,  but  this 
power  can  be  delegated  to  the  extent  expressly  permitted 
under  the  Constitution.24 

22  Chicago,  Burlington  &  Quincy  tempt  it,  they  would  say,  that  every 
Rd.  Co.  v.  Nebraska,  47  Neb.  549,  3  law  came  within  the  description  of 
Am.  &  Eng.  R.  Cas.  (N.  S.)  573,  41  L.  a  regulation  of  police  which  con- 
R.  A.  481,  66  N.  W.  624.  cerned  the  welfare  of  the  whole  peo- 

23  Bacon  v.  Walker,  204  U.  S.  311,  pie  of  a  State,  or  any  individual 
27  Sup.  Ct.  289,  51  L.  ed.  499,  case  within  it;  whether  it  related  to  their 
affirms  Walker  v.  Bacon,  11  Idaho,  rights  or  their  duties;  whether  it  re- 
127,  81  Pac.  155.  spected  them  as  men,  or  as  citizens 

The  police  power  of  a  State  em-  of  the  State  in  their  public  or  private 

braces  such  reasonable  regulations  re-  relations;  whether  it  related  to  the 

lating  to  matters  completely  within  its  rights  of  persons  or  of  property,  of  the 

territory  and  not  affecting  the  people  whole  people  of  a  State,  or  of  any  in- 

of  other  States,  established  directly  dividual  within  it;  and  whose  oper- 

by  legislative  enactment,  as  will  pro-  ation  was  within  the  territorial  lim- 

tect  the  public   health  and  safety,  its  of  the  State,  and  upon  the  persons 

Jacobson   v.   Massachusetts,    197   U.  and    things    within    its   jurisdiction. 

S.  11,  49  L.  ed.  643,  25  Sup.  Ct.  358.  An   example   of   the   application   of 

See  also  Stehmeyer  v.  Charleston,  53  these  principles,   is  the  right   of    a 

S.  C.  259,  31  S.  E.  322;  State,  ex  rel.  State  to  punish  persons  who  commit 

Milwaukee  Medical  College  v.  Chit-  offenses    against    its    criminal    laws 

tenden,  127  Wis.  468,  107  N.  W.  500.  within   its  territory.     New   York  v. 

It  is  at  all  times  difficult  to  define  Miln,  11  Pet.  (36  U.  S.)  102,  9  L.  ed. 

any  subject  with  precision  and  ac-  648. 

curacy;  if  this  be  so,  in  general,  it  is        24  Reelfoot  Lake  Levee  Dist,  Daw- 

emphatically  so  in  relation  to  a  sub-  son,   97   Tenn.    151,    15S,    159,    174, 

ject  so  diversified  and  various  as  that  :'.<'.  S.  W.  1041,  34  L.  1!.  A.  725.    See 

under  the  consideration  of  the  court  Chapter    herein    on    Taxation    and 

in  this  case;  if  the  court  were  to  at-  §  182,  herein,  Board  of  Equalization. 

205 


§  151       DELEGATION  OF  POWER  BY  CONGRESS 


CHAPTER  XL 

DELEGATION   OF   POWER   BY   CONGRESS. 

§  151.  Delegation  to  the  President.    §   154.  Delegation  to  American  Rail- 

152.  Delegation    to    Secretary    of  way  Association. 

War — Bridges.  155.  Delegation  of  Power  to   De- 

153.  Delegation  of  Power  to  Inter-  termine  Compensation  Un- 

state   Commerce    Commis-  der  Right  of  Eminent  Do- 

sion.  main  Exercised  by  United 

States. 

§  151.  Delegation  to  the  President. — Congress  cannot,  un- 
der the  Constitution  delegate  its  legislative  power  to  the  Presi- 
dent, although  other  powers  not  legislative  in  character  may 
be  conferred  upon  him.1  So,  it  is  declared  that:  "While  it  is 
undoubtedly  true  that  legislative  power  cannot  be  delegated 
to  the  courts  or  to  the  executive,  there  are  some  exceptions 
to  the  rule  under  which  it  is  held  that  Congress  may  leave  to 
the  President  the  power  of  determining  the  time  when  or  exi- 

1  Field  v.  Clark,  143  U.  S.  649,  36  ally    transfers    legislative    power    to 

L.  ed.  294,  12  Sup.  Ct.  495.    [In  this  the    president     (Fuller,    C.    J.,    and 

case  it  is  also  held  that  the  authority  Lamar,  J.,  dissenting);  but  that  even 

conferred  upon  the  president  by  §  3  if  it  were  it  does  not  follow  that  other 

of  the  act  of  October  1,  1890,  to  re-  parts  of  the  act  imposing  duties  upon 

duce  the  revenue  and  equalize  duties  imported    articles,    are    inoperative.] 

on  imports,  and  for  other  purposes,  Cited  and  considered  in  Union  Bridge 

26  Stat,,  c.   1244,   pp.   567,  612,  to  Co.  v.  United  States,  204  U.  S.  365, 

suspend  by  proclamation  the  free  in-  379,  385,  51  L.  ed.  523,  27  Sup.  Ct. 

traduction  of  sugar,  molasses,  coffee,  — ,  aff'g  143  Fed.  377.     Approved  in 

tea  and  hides,  when  he  is  satisfied  Butterfield  v.  Stranahan,   192  U.  S. 

that    any    country    producing    such  470,  24  Sup.  Ct.  349,  48  L.  ed.  252. 

articles  imposes  duties  or  other  ex-  Cited  in  Rider  v.  United  States,  178 

actions  upon  the  agricultural  or  other  U.  S.  250,  258,  44  L.  ed.  1060,  20  Sup. 

products  of  the  United  States,  which  Ct,    480.      Cited   and   considered    in 

he  may  deem  to  be  reciprocally  un-  United  States  v.   Dastervignes,    118 

equal  or  unreasonable,  is  not  open  to  Fed.  190,  201.    Cited  in  LTnited  States 

the  objection  that  it  unconstitution-  v.  Maid,  116  Fed.  650,  653. 

266 


DELEGATION    OF    POWER    BY    CONGRESS  $    152 

gency  upon  the  happening  of  which  a  certain  act  shall  take 
effect."  2 

§  152.  Delegation  to  Secretary  of  War — Bridges.3 — Un- 
der its  power  to  regulate  commerce,  and  to  make  all  laws 
which  shall  be  necessary  and  proper  for  carrying  into  execu- 
tion such  power,  Congress  is  authorized  to  determine  what 
constitutes  an  unreasonable  obstruction  to  navigation  and  to 
control  and  regulate  navigation.  Such  power  being  constitu- 
tionally vested  in  Congress  it  is  without  limitation  as  to  the 
means  or  manner  in  which  it  shall  be  done,  and  it  would  seem 
that  it  has  the  right  to  employ  every  agency  necessary  to  the 
due  exercise  of  such  authority,  so  that,  although  the  power  to 
legislate  is  vested  in  Congress  alone,  the  administrative  duties 
in  carrying  out  legislative  powers  may  be  delegated,  and  an 
act  of  Congress,  which  does  not  delegate  to  the  Secretary  of 
War  any  power  to  fix  or  make  the  law,  but  only  confers  on 
such  secretary  authority  to  determine  when  a  law,  enacted 
by  Congress  concerning  obstructions  by  bridges  to  navigable 
waters,  shall  be  enforced,  does  not  unconstitutionally  operate 
as  taking  property  of  a  bridge  company,  whose  bridge  con- 
stitutes such  an  obstruction,  for  public  use  without  due  com- 
pensation, nor  is  it  unconstitutional  as  being  a  delegation  of 
legislative  or  judicial  power,  especially  so  where  notice  is  re- 
quired to  be  given  to  the  parties  interested,  and  a  party  who 
considers  himself  aggrieved  has  the  right  of  appeal,  or  a  writ 
of  error,  to  the  court  of  highest  resort.4     Under  an  early  de- 

2  St.  Louis  Consolidated  Coal  Co.  Co.,  143  Fed.  377,  citing,  consider- 
v.  Illinois,  185  U.  S.  203,  210,  46  L.  ing  or  quoting  from  State  of  Penn- 
ed. 872,  22  Sup.  Ct.  616,  per  Brown,  sylvania  v.  Wheeling  &  Belmont 
J.,  in  discussing  question  of  delega-  Bridge  Co.  (Wheeling  Bridge  Case), 
tion  of  power  to  mining  inspector  18  How.  (59  U.  S.)  421,  425,  15  L.  ed. 
and  exercise  by  him  of  discretion,  435;  South  Carolina  v.  Georgia,  93 
citing  The  Aurora,  7  Cranch  (11  U.  U.  S.  13,  23  L.  ed.  969;  Gray  v.  Chi- 
S.),  382,  3  L.  ed.  378;  Field  v.  Clark,  cago,  10  Wall.  (77  U.  S.)  454,  19  L. 
143  U.  S.  649,  36  L.  ed.  294,  12  Sup.  ed.  969;  Miller  v.  New  York,  109 
Ct.  601.  U.  S.  393,  3  Sup.  Ct.  232,  27  L.  ed. 

3  See  §  127,  herein.  971;   Gibbons   v.    Ogden,   9   Wheat. 
♦United   States  v.    Union   Bridge    (22  U.  S.)  1,  6  L.  ed.  23;  Gilman  v. 

267 


§    152  DELEGATION   OF   POWER   BY   CONGRESS 

cision  it  is  held  that  an  act  of  Congress  delegating  to  the  Sec- 
retary of  War  the  power  to  declare  a  bridge  an  obstruction  to 
navigation  and  to  require  it  to  be  changed,  remodeled  or  re- 
built, is  unconstitutional.5  But  the  later  enactment  of  1899  6 
giving  similar  powers  is  held  not  unconstitutional  as  delegating 
legislative  or  judicial  power  to  the  Secretary  of  War,  as  the 
power  granted  is  administrative,  to  be  enforced  by  a  judicial 
proceeding  in  court  where  the  legality  of  his  action  could  be 
reviewed.7    So  in  another  case,  in  the  Supreme  Court,  it  is 

Philadelphia,  3  Wall.  (70  U.  S.)  713,  character  can  be  found  in  River  and 

18  L.  ed.  96;  United  States  v.  Moline  Harbor  Acts  passed  at  previous  ses- 

(D.  C),  82  Fed.  592;  E.  A.  Chatfield  sions  of  Congress.    Act  1884,  23  Stat. 

Co.  v.  City  of  New  Haven  (C.  C),  123,  148,  c.  229;  act  of  April  11th, 

110    Fed.    792;    Fletcher  v.  Peck,  6  1888,  25  Stat.  400,  424,  425,  c.  860, 

Cranch  (10  U.  S.),  126,  3  L.  ed.  162;  §§  9,  10;  and  act  of  September  19th, 

Willson   v.    Blackbird   Creek   Marsh  1890,  26  Stat.  426,  453,  c.  907,  §§  4, 

Co.,  2  Pet.  (27  U.  S.)  245,  7  L.  ed.  5.      Finally,    we    have    the    act    of 

412;  Williamette  Iron  Bridge  Co.  v.  March  23d,  1906,  34  Stat.  84,  c.  1130, 

Hatch,  125  U.S.  1,  8  Sup.  Ct.  811,31  §§4,    5,    which    covers    the    same 

L.  ed.  629;  Escanaba  Co.  v.  Chicago,  ground   as   the   act   of    1899    under 

107  U.  S.  683,  2  Sup.  Ct.  185,  27  L.  which  the  present  information  was 

ed.  442;  Pound  v.  Turck,  95  U.  S.  filed." 

459,  24  L.  ed.  525;  Cardwell  v.  Ameri-  5  United  States  v.  Keokuk  &  H. 
can  Bridge  Co.,  113  U.  S.  205,  5  Sup.  Bridge  Co.,  45  Fed.  178  (under  act 
Ct.  423,  28  L.  ed.  959;  Field  v.  Clark,  of  Congress,  August  11,  1888,  25  U. 
143  U.  S.  649,  12  Sup.  Ct.  495,  36  S.  Stat,  at  L.  p.  424,  §§  9,  10,  River 
L.  ed.  294;  Cohn  v.  United  States,  &  Harbor  Bill),  followed  in  United 
152  U.  S.  212,  14  Sup.  Ct.  513,  38  States  v.  Rider  (D.  C),  50  Fed.  406. 
L.  ed.  415;  Bushnel  v.  Leland,  164  »  Act  1899,  §  18,  30  Stat.  1153. 
U.  S.  684,  17  Sup.  Ct.  209,  41  L.  ed.  7  E.  A.  Chatfield  Co.  v.  City  of  New 
598;  Lake  Shore  &  Michigan  Southern  Haven  (C.  C),  110  Fed.  788,  cited 
Ry.  Co.  v.  Ohio,  165  U.  S.  365,  17  in  United  States  v.  Union  Bridge 
Sup.  Ct.  357,  41  L.  ed.  747;  United  Co.,  143  Fed.  377,  387;  United  States 
States  v.  Ormsbee  (D.  C),  74  Fed.  v.  Matthews  (D.  C),  146  Fed.  306, 
207;  Dastervignes  v.  United  States,  308.  In  this  case  the  delegation  to 
122  Fed.  35,  58  C.  C.  A.  346,  and  the  Secretary  of  the  Interior  (trans- 
distinguishing  Monongahela  Nav.  Co.  ferred  to  Secretary  of  Agriculture) 
v.  United  States,  148  U.  S.  312,  13  of  certain  powers  for  the  protection 
Sup.  Ct.  622,  37  L.  ed.  463.  Princi-  of  forest  reservations  was  held  void 
pal  case  is  aff'd  in  Union  Bridge  v.  as  an  attempted  delegation  of  legis- 
United  States,  204  U.  S.  364,  51  L.  lative  powers  to  an  administrative 
ed.  523,  27  Sup.  Ct.  367.  In  the  officer,  cited  in  United  States  v.  Keitel 
"statement"  of  this  case  it  is  said:  (D.  C),  157  Fed.  396,  401;  con- 
"  Legislation    similar   in    its    general  sidered  as  expressing  a  contrary  view 

268 


DELEGATION    OF    POWER    BY    CONGRESS  §    152 

determined  that  the  provisions  of  the  act  of  Congress  of  1890,8 
conferring  upon  the  Secretary  of  War  authority  concerning 
bridges  over  navigable  water-ways,  do  not  deprive  the  States  of 
authority  to  bridge  such  streams,  but  simply  create  an  addi- 
tional cumulative  remedy  to  prevent  such  structures,  although 
lawfully  authorized,  from  interfering  with  commerce.9  It  is 
also  decided  by  the  same  court  that  this  enactment  does  not 
embrace  officers  of  a  municipal  corporation,  owning  or  con- 
trolling a  bridge,  who  had  not  in  their  hands,  and,  under  the 
laws  of  the  State,  could  not  obtain  public  moneys  that  could  be 
applied  in  execution  of  the  order  of  the  Secretary  of  War, 
within  the  time  fixed  by  that  officer  to  complete  the  alteration 
of  such  bridge.  The  facts  of  this  case  appear  in  the  appended 
note.10 

in  United  States  v.  Bale,  156  Fed.  otherwise,  or  where  there  is  difficulty 

687,  688;  cited  but  declared  not  in  in  passing  the  draw-opening  of  the 

point   in   United  States  v.   Shannon  draw-span  of  such  bridge  by  rafts, 

(C.  C),  151  Fed.  863,  865.  steamboats  or  other  water  crafts,  it 

Not  a  delegation  of  legislative  or  shall  be  the  duty  of  said    Secretary 

judicial  powers  to  Secretary  of  War.  first    giving    the    parties    reasonable 

United  States  v.  City  of  Moline  (D.  opportunities   to   be   heard,   to   give 

C),  82  Fed.  592.  notice  to  the  persons  or  corporation 

8  Act  September  19,  1890,  c.  907,  owning  or  controlling  such  bridge 
§§  4,  5,  7.  so  to  alter  the  same  as  to  render  navi- 

9  Lake  Shore  &  Michigan  Southern  gation  through  or  under  it  reason- 
Ry.  Co.  v.  Ohio,  165  U.  S.  365,  41  ably  free,  easy  and  unobstructed; 
L.  ed.  747,  17  Sup.  Ct.  357.  and   in   giving  such  notice   he  shall 

10  The  fourth  and  fifth  sections  of  specify  the  changes  to  be  made  and 
the  River  and  Harbor  Act  approved  shall  prescribe  in  each  case  a  reason- 
September  19,  1890,  provide:  " §  4.  able  time  in  which  to  make  them. 
That  §  9  of  the  River  and  Harbor  If  at  the  end  of  such  time  the  alter- 
Act  of  August  11th,  1888,  be  amended  ation  has  not  been  made,  the  Secre- 
and  re-enacted  so  as  to  read  as  fol-  tary  of  War  shall  forthwith  notify 
lows:  That  whenever  the  Secretary  the  United  States  District  Attorney 
of  War  shall  have  good  reason  to  be-  for  t  ho  District  in  which  such  bridge 
lieve  that  any  railroad  or  other  is  situated  to  the  end  that  the  crimi- 
bri'lge  now  constructed  or  which  nal  proceedings  mentioned  in  the 
may  hereafter  be  constructed  over  succeeding  section  may  be  taken. 
any  of  the  navigable  waterways  of  §  5.  That  §  10  of  the  River  and 
the  United  States  is  an  unreasonable  Harbor  Act  of  August  11th,  1888,  be 
obstruction  to  the  free  navigation  amended  and  re-enacted  so  as  to  rcnl 
of  such  waters  on  account  of  insuf-  as  follows:  That  if  the  persons,  cor- 
ficient    height,    width,    or    span.    <<r  porations  or  associations  owning  or 

269 


§    153  DELEGATION   OF    POWER   BY   CONGRESS 

§  153.  Delegation  of  Power  to  Interstate  Commerce 
Commission. — The  Interstate  Commerce  Commission  is  a  body 
corporate,  with  legal  capacity  to  be  a  party  plaintiff  or  de- 
fendant in  the  Federal  courts.  In  enacting  the  interstate  com- 
merce acts,  Congress  had  in  view  and  intended  to  make  pro- 
vision for  commerce  between  States  and  Territories,  commerce 
going  to  and  coming  from  foreign  countries,  and  the  whole 
field  of  commerce  except  that  wholly  within  a  State;  and  it 
conferred  upon  the  commission  the  power  of  determining 
whether,  in  given  cases,  the  services  rendered  were  like  and 
contemporaneous,  whether  the  respective  traffic  was  of  a  like 
kind,  and  whether  the  transportation  was  under  substantially 
similar  circumstances  and  conditions.  If  the  commission  has 
power  of  its  own  motion,  to  promulgate  general  decrees  or 
orders,  which  thereby  become  rules  of  action  to  common 
carriers,  such  exertion  of  power  must  be  confined  to  the  ob- 
vious purposes  and  directions  of  the  statutes,  since  Congress 
has  not  granted  to  it  legislative  powers.  It  was  not  the  pur- 
controlling  any  railroad  or  other  missioners  of  Muskingum  County, 
bridge  shall,  after  receiving  notice  to  Ohio,  to  make  on  or  before  a  named 
that  effect,  as  hereinbefore  required,  day  certain  alterations  in  a  bridge 
from  the  Secretary  of  War,  and  over  the  Muskingum  River,  Ohio,  at 
within  the  time  prescribed  by  him,  Taylorsville  in  that  State.  The  corn- 
willfully  fail  or  refuse  to  remove  the  missioners,  although  having  control 
same,  or  to  comply  with  the  lawful  of  the  bridge,  did  not  make  the 
order  of  the  Secretary  of  War  in  the  alterations  required  and  were  indicted 
premises,  such  person,  corporation  under  the  act  of  Congress.  It  was 
or  association  shall  be  deemed  guilty  held  that  however  broadly  the  act 
of  a  misdemeanor,  and,  on  convic-  of  Congress  may  be  construed  it 
tion  thereof,  shall  be  punished  by  a  ought  not  to  be  construed  as  embrac- 
fine  not  exceeding  $5,000,  and  every  ing  officers  of  a  municipal  corpora- 
month  such  person,  corporation  or  tion  owning  or  controlling  a  bridge 
association  shall  remain  in  default  who  had  not  in  their  hands,  and  Un- 
as to  the  removal  or  alteration  of  der  the  laws  of  their  State  could  not 
such  bridge,  shall  be  deemed  a  new  obtain,  public  moneys  that  could  be 
offense  and  subject  the  person,  cor-  applied  in  execution  of  the  order  of 
poration  or  association  so  offending  the  Secretary  of  War  within  the 
to  the  penalties  above  described."  time  fixed  by  that  officer  to  com- 
26  Stat.  426,  453,  c.  907.  Proceed-  plete  the  alteration  of  such  bridge, 
ing  under  that  act  the  Secretary  of  Rider  v.  United  States,  178  U.  S. 
War  gave  notice  to  the  county  com-   251,  44  L.  ed.  1060,  20  Sup.  Ct.  480. 

270 


DELEGATION   OF   POWER    BY   CONGRESS  §    153 

pose  of  the  statute  to  reinforce  the  provisions  of  the  tariff  laws ; 
it  was  the  purpose  of  such  enactment  to  promote  and  facili- 
tate commerce  by  the  adoption  of  regulations,  to  make  charges 
for  transportation  just  and  reasonable,  and  to  forbid  undue 
and  unreasonable  preferences  or  discriminations,  and  to 
abolish  combinations.11  Competition  is  one  of  the  most  ob- 
vious and  effective  circumstances  that  make  the  conditions, 
under  which  a  long  and  short  haul  is  performed,  substantially 
dissimilar,  and  as  such  must  have  been  in  the  contemplation 
of  Congress  in  the  passage  of  the  act  to  regulate  commerce, 
this  is  no  longer  an  open  question.12  Congress  has  not  con- 
ferred upon  the  commission  the  legislative  power  of  prescrib- 
ing rates,  either  maximum,  or  minimum,  or  absolute,  and,  as 
it  has  not  given  the  express  power  to  such  commission,  it  did 
not  intend  to  secure  the  same  result  indirectly  by  empowering 
that  tribunal,  after  having  determined  what,  in  reference  to 
the  past,  are  reasonable  and  just  rates,  to  obtain  from  the 
courts  a  peremptory  order  that,  in  the  future,  railroad  com- 
panies should  follow  the  rates  thus  determined  to  have  been, 
in  the  past,  reasonable  and  just.13  In  construing  this  act,  it  is 
to  be  presumed  that  Congress  in  so  far  as  it  adopted  the  lan- 
guage of  the  English  Traffic  Act,  had  in  mind  the  construction 
given  by  the  English  courts  to  the  adopted  language,  and  in- 
tended to  incorporate  it  into  the  statute.14  And  as  the  general 
purpose  of  the  statute  was  to  facilitate  commerce  and  prevent 
discrimination,  it  will  not  be  construed  so  as  to  make  illegal 

"Texas  &  Pacific  Ry.  Co.  v.  In-  sion  v.   Alabama  Midland  Ry.  Co., 

terstate  Commerce  Commission,  162  168  U.  S.  144,  18  Sup.  Ct,  45,  42  L. 

U.  S.  197,  40  L.  ed.  140,  16  Sup.  Ct.  ed.  414;  Interstate  Commerce  Com- 

666.    See  Interstate  Commerce  Com-  mission  v.  Cincinnati,   New  Orleans 

mission    v.    Chicago   Great   Western  &  Tex.   Pacific  Ry.  Co.,   167  U.  S. 

Ry.  Co.,  141  Fed.  1003.  479,  17  Sup.  Ct.  896,  42  L.  ed.  243; 

12  Interstate  Commerce  Commis-  Cincinnati,  New  Orleans  &  Tex. 
sion  v.  Alabama  Midland  Ry.  Co.,  Pacific  Ry.  Co.,  162  U.  S.  184,  40  L 
168  U.  S.  144,  18  Sup.  Ct.  45,  42  I,  ed.  935,  16  Sup.  Ct.  700. 

ed.   414.     See   Interstate   Commerce        "  Interstate    Commerce    Commis- 

Commission  v.  Chicago  Greal    West-  sion  v.  Baltimore  &  Ohio  R.  Co.,  145 

em  Ry.  Co.,  Ml  Fed.  1003.  U.  S.  263,  36  L.  ed.  699,  12  Sup.  Ct. 

13  Interstate    Commerce    Commis-  844. 

271 


§§    154,    155      DELEGATION    OF    POWER    BY    CONGRESS 

a  salutary  rule  to  prevent  the  violation  of  the  act  in  regard  to 
obtaining  rebates.15 

§  154.  Delegation  to  American  Railway  Association. — 

An  act  of  Congress  which  vests  the  American  Railway  Asso- 
ciation with  authority  to  designate  the  standard  height  of 
drawbars,  and  the  maximum  variation  from  such  height,  and 
which  provides  that  no  freight  cars  shall  be  used  in  interstate 
traffic  which  do  not  comply  with  such  standard,  is  not  un- 
constitutional as  vesting  such  association  with  legislative 
power.  The  enactment  vested  it  with  authority  to  designate, 
without  the  power  to  give  the  designation  the  force  or  effect 
of  the  law  that  was  derived  entirely  from  the  statute.  When 
the  designation  was  made  the  authority  was  exhausted,  and 
no  power  to  change,  amend,  enforce  or  control,  existed  in  the 
association.16 

§  155.  Delegation  of  Power  to  Determine  Compensation 
Under   Right   of   Eminent   Domain   Exercised   by   United 

States. — The  liability  to  make  compensation  for  private 
property  taken  for  public  uses  is  a  constitutional  limitation  of 
the  right  of  eminent  domain.  As  this  limitation  forms  no  part 
of  the  power  to  take  private  property  for  public  uses,  the  gov- 
ernment of  the  United  States  may  delegate  to  a  tribunal 
created  under  the  laws  of  a  State,  the  power  to  fix  and  de- 
termine the  amount  of  compensation  to  be  paid  by  the  United 
States  for  private  property  taken  by  them  in  the  exercise  of 
their  right  of  eminent  domain ;  or  it  may,  if  it  pleases,  create  a 
special  tribunal  for  that  purpose.17 

15  Southern    Pacific   Co.    v.    Inter-  Southern  Ry.  Co.  v.  Neal,  83  Ark. 

state  Commerce  Commission,  200  U.  591,  98  S.  W.  958. 
S.  536,  50  L.  ed.  585,  26  Sup.  Ct.  330,        "  United  States  v.  Jones,  109  U. 

rev'g  Interstate  Commerce  Commis-  S.  513,  27  L.  ed.  1015,  3  Sup.  Ct.  346, 

sion    v.    Southern    Pacific    Ry.,    132  citing  Kohl  v.  United  States,  91  U.  S. 

Fed.  829.  367,  23  L.  ed.  449. 

18  St.    Louis,    Iron    Mountain    & 


272 


ENUMERATION   OF  SUBORDINATE   BODIES  §    156 


CHAPTER  XII. 

DELEGATION  OF  POWER  BY  STATE — ENUMERATION  OF  SUBORDI- 
NATE  BODIES. 

§  156.  Delegation  to  Board  of  Agri-  tendent    or    Commissioner 

culture.  of        Insurance — Standard 

157.  Delegation    to    Commissioner  Policy. 

of  Banking  and  Insurance    §   164.  Delegation  to  Levee  District. 
— Secretary  of  State.  165.  Delegation  to  Board  of  Loan 

158.  Delegation  to  Commissioners  Commissioners — Territory. 

of  Bridges.  166.  Delegation  to  Public  Service 

159.  Delegation  to  Drainage  Com-  Commission  of  New  York. 

missioners — Removal        of  167.  Delegation  to  Railroad  Corn- 
Bridge   by   Railway   Com-  missioners. 
pany.  168.  Delegation  to  Railroad  Com- 

160.  Delegation  to  Commission  of  mission — Public         Utility 

Gas  and   Electricity.  Law  of  Wisconsin. 

161.  Delegation     to     Grain     and        169.  Delegation    to   Railroad   and 

Warehouse  Commission.  Warehouse     Commission — 

162.  Delegation    to    Inspectors   of  Railroad  —  Carriers  —  In- 

Coal  Mines.  crease  of  Capital. 

163.  Delegation  to  Bureau  of  In-        170.  Delegation    to    State    Corpo- 

surance     or     to     Superin-  ration  Commission. 

§  156.  Delegation  of  Power  to  Board  of  Agriculture. — A 

board  of  agriculture,  which  is  a  branch  of  the  executive  de- 
partment, may  be  constitutionally  empowered  to  regulate  the 
transportation  of  cattle  within  state  limits,  and  such  authoriza- 
tion is  not  a  delegation  of  legislative  power.1  And  where  the 
legislature  gives  a  board  of  agriculture  authority  to  grant  or 
refuse  a  license  to  mine  for  phosphate  rock  on  the  State's  prop- 
erty and  to  exercise  its  discretion  for  the  State's  best  interest, 
such  authority  so  vested  is  not  a  delegation  of  legislative 
power  to  that  board  nor  does  it  constitute  a  violation  of  the 
fourteenth  constitutional  amendment.2 

'State  v.  Southern  Ry.  Co.,  141  'State  ox  rel.  Port  Royal  Mining 
N.  C.  846,  54  S.  E.  294,  Laws  1901,  Co.  v.  Hagood,  30  S.  C.  519,  3  L.  R. 
p.662,c.  479,  §4,  sub.  "b"  construed.    A.  841,  9  S.  B.  686. 

18  273 


§§    157-159      DELEGATION   OF   POWER   BY   STATE — 

§  157.  Delegation  to  Commissioner  of  Banking  and  In- 
surance— Secretary  of  State.3 — Duties  in  relation  to  insurance 
matters,  which  are  administrative  and  neither  legislative  nor 
judicial,  may  be  devolved  upon  the  Secretary  of  State  and 
subsequently  transferred  by  statute  to  the  commissioner  of 
banking  and  insurance,  the  object  being  to  regulate  certain 
corporations  which  are  subject,  by  the  law  of  their  creation, 
to  regulation.4  And  it  is  not  a  delegation  of  legislative  or  ju- 
dicial power  for  a  statute  to  require  the  approval  of  the  Secre- 
tary of  State  to  a  contract  for  reinsurance.5 

§  158.  Delegation  to  Commissioners  of  Bridges. — Where 
the  legislature  has  authority  under  the  state  constitution  to 
provide  for  building  bridges  over  navigable  waters  and  the 
power  to  charter  companies  for  that  purpose,  it  may  exercise 
such  authority  and  regulate  the  construction  and  manage- 
ment of  bridges,  and  it  may  delegate  its  authority  to  commis- 
sioners to  be  named,  and  such  delegation  of  power  vests  the 
control  in  them;  and  where  such  commission  is  abolished  and 
its  duties  and  powers  vested  in  the  commissioner  of  bridges  of  a 
city,  who  had  the  power  to  authorize  to  be  operated,  a  railroad 
or  railroads  over  the  bridge,  and  authority  to  contract  for  such 
operation  and  to  fix  the  fares  to  be  paid  by  the  directors  of  the 
company  or  companies  so  contracting,  such  contract  does  not 
create  a  franchise,  and  if  it  did,  it  would  be  illegal  and  void  and 
beyond  the  power  of  the  municipal  officer  making  it.6 

§  159.  Delegation  to  Drainage  Commissioners — Removal 
of  Bridge  by  Railway  Company. — Where  the  proper  drainage 
of  the  land  in  a  district  is  impossible  without  the  removal  of 
a  railway  bridge  over  the  natural  water  course  into  which  the 

3  See  §  163,  herein.  fl  Schinzel  v.  Best,  92  N.  Y.  Supp. 

4  Iowa  Life  Ins.  Co.  v.  East  Mut.  754,  45  Misc.  455,  48  Misc.  234,  aff' d 
Life  Ins.  Co.,  64  N.  J.  L.  340,  45  Atl.  96  N.  Y.  Supp.  1145,  109  App.  Div. 
762.  917     (this    was    the     Williamsburg 

5  Iowa  Life  Ins.  Co.  v.  Eastern  bridge  over  the  East  river,  New 
Mut.  Life  Ins.  Co.,  64  N.  J.  L.  340,  York). 

45  Atl.  762. 

274 


ENUMERATION   OF   SUBORDINATE   BODIES  §    160 

lands  drained  and  the  construction  of  a  bridge  with  a  larger 
opening  for  the  increased  volume  of  water,  it  is  the  duty  of  the 
railway  company,  at  its  own  expense,  to  remove  the  existing 
bridge,  and  also,  unless  it  abandons  or  surrenders  its  right  to 
cross  the  creek  at  or  in  that  vicinity,  to  erect  at  its  own  expense 
and  maintenance  a  new  bridge  in  conformity  with  regulations 
established  by  the  drainage  commissioners  under  the  authority 
of  the  State;  and  such  a  requirement,  if  enforced,  will  not 
amount  to  a  taking  of  private  property  for  public  use  within 
the  meaning  of  the  Constitution,  nor  to  a  denial  of  the  equal 
protection  of  the  laws.7 

§  160.  Delegation  to  Commission  of  Gas  and  Electricity. — 
A  statute  may  authorize  the  appointment  by  the  governor  of  a 
commission  to  fix  the  maximum  price  to  be  charged  for  serv- 
ice by  gas  and  electric  light  corporations  where  such  com- 
mission is  only  intrusted  with  the  duty  of  investigating  the 
facts,  and,  after  a  public  hearing,  of  ascertaining  and  deter- 
mining "within  the  limits  prescribed  by  law"  what  is  a  reason- 
able maximum  rate.  Such  a  statute  does  not  violate  that 
provision  of  the  Federal  constitution  which  guarantees  to 
every  State  a  republican  form  of  government,  although  such 
statute  is  violative  of  the  Fourteenth  Amendment  of  the 
Federal  Constitution  guaranteeing  "equal  protection  of  the 
laws"  where  it  does  not  afford  companies  the  right  to  petition 
for  a  new  rate  at  the  end  of  the  term  of  three  years  or  at  any 
time  thereafter.8  Under  the  statute  of  1905°  entitled:  "An 
act  to  establish  a  commission  of  gas  and  electricity  with  power 
to  regulate  the  price  of  gas  and  electric  light  and  certain  other 
electric  services,  and  to  provide  for  the  control  and  super- 
vision of  gas,  electric  light  and  other  electric  corporations  and 
making  an  appropriation  therefor,"  and  providing  for  an  ap- 

'  Chicago,  Burlington  &QuincyIty.  Saratoga     Gas,     Electric     Light     & 

Co.  v.  Drainage    Comrs.,  200  U.  S.  Power  Co.,  191  N.  Y.  123,  83  N.  E. 

561,  50  L.  ed.  596,  26  Sup.  Ct.  341,  693,  rev'g  107  N.  Y.  Supp.  311. 

aff'g  212  111.  103,  72  N.  E.  219.    See  Board  of  gas   trustees,   see    §  198, 

§  152,  herein.  herein. 

8  Village    of    Saratoga    Springe    v.  9  Laws  N.  Y.  1905,  chap.  737.    See 

275 


§§    161,  162      DELEGATION    OF   POWER   BY   STATE— 

proval  of  incorporation  and  franchises,  and  a  certificate  of 
authority  signed  and  executed  by  the  commission,  and  that  no 
municipality  shall  build,  maintain  and  operate  for  other  than 
municipal  purposes  any  works  or  systems  for  the  manufacture 
and  supplying  of  gas  or  electricity  for  lighting  purposes  with- 
out a  certificate  of  authority  granted  by  the  commission,  such 
certificate  is  a  prerequisite  to  the  establishment  and  main- 
tenance by  a  village  of  a  system  which  includes  private  light- 
ing, even  though  prior  to  the  adoption  of  the  statute,  such 
village  had  by  virtue  of  the  authority  of  a  prior  statute  10 
voted  for  a  lighting  system,  but  no  property  had  been  acquired, 
no  expenditures  made  in  the  construction  of  such  system;  and 
in  such  a  case  an  action  will  lie  by  a  taxpayer  to  restrain  the 
trustees  of  the  village  from  issuing  bonds  to  establish  such  a 
system.11 

§  161.  Delegation  to  Grain  and  Warehouse  Commis- 
sion.— The  State  may,  it  is  held,  create  a  grain  and  ware- 
house commission,  and  provide  for  the  inspection  and  grading 
of  grain  in  a  certain  city  where  such  city  stands  in  a  distinct 
class  by  itself  with  reference  to  commerce  and  the  grain  trade, 
and,  therefore,  the  law  is  not  unconstitutional  on  the  ground 
of  denying  equal  protection  of  the  laws.12 

§  162.  Delegation  to  Inspectors  of  Coal  Mines. — A  state 
legislature  may  provide  for  the  appointment  of  inspectors  of 
mines  and  the  payment  of  their  fees  by  the  owners  of  such 
mines,  and  a  law  providing  for  the  inspection  of  coal  mines  is 
not  unconstitutional  because  of  its  limitation  to  mines  where 
more  than  five  men  are  employed  at  any  one  time.  Where  the 
law  provides  for  the  inspection  of  coal  mines  at  least  four  times 
a  year,  it  is  not  objectionable  by  reason  of  the  fact  that  a  dis- 

§  166,  herein,  as   to    Public   Service  Supp.  190,  49  Misc.  18,  aff'd  98  N. 

Commissions  Law.  Y.  Supp.  1113,  113  App.  Div.  894. 

10  Laws  1897,  p.  438,  c.  414.  12  Globe     Elevator     Co.     v.     An- 

11  Potsdam  Electric  Light  &  Power  drew  (U.  S.  S.  C),  144  Fed.  871,  s,  c, 
Co.  v.  Village  of  Potsdam,  97  N.  Y.  156  Fed.  664. 

276 


ENUMERATION   OF   SUBORDINATE    BODIES  §    163 

cretion  is  vested  in  the  inspectors  to  cause  the  mines  to  be  in- 
spected a  greater  number  of  times  a  year  and  as  often  as  they 
may  deem  it  necessary  and  proper,  nor  is  such  law  rendered 
unconstitutional  by  a  provision  fixing  the  maximum  and  mini- 
mum fees  within  the  limits  of  which  a  fee  may  be  charged  for 
each  inspection.13 

§  163.  Delegation  to  Bureau  of  Insurance  or  to  Superin- 
tendent or  Commissioner  of  Insurance — Standard  Policy.14 — 

Independently  of  the  constitution  the  legislature  in  Virginia  has 
power  to  establish  and  officer  a  bureau  of  insurance,  and  it 
may  appoint  a  commissioner  of  insurance,  although  the  con- 
stitution declares  that  the  state  corporation  commission  shall 
have  certain  officers  to  be  appointed  by  and  be  subject  to  re- 
moval by  the  commission.  Such  provision  of  the  constitution 
also  declares  that  the  legislature  may  establish  within  the 
department,  and  subject  to  the  supervision  and  control  of  the 
commission,  a  subordinate  division  or  bureau  of  insurance. 
But  the  enumeration  of  a  lower  class  of  officers  to  be  appointed 
and  removed  by  the  commission  does  not  take  away  from  the 
legislature  the  power  and  right  to  select  the  head  of  the  bureau, 
the  commissioner  of  insurance.  General  words  following  a 
specific  enumeration  should  be  applied  to  other  persons  or 
things  of  the  class  enumerated.15  But  a  statute  under  which 
the  insurance  commissioner,  or  superintendent  of  insurance,  is 
directed  to  prescribe  a  standard  policy  of  insurance,  for  use 
in  the  State,  and  forbidding  the  use  of  any  other  form,  is  held 
unconstitutional  in  that  it  involves  an  unauthorized  delega- 
tion of  legislative  power,  but  it  is  also  decided  tha.t  the  leg- 
islature may  itself  prescribe  a  form  of  contract  of  insurance.16 

13  St.  Louis  Consolidated  Coal  Co.  72,  25  Pitts.  L.  J.  (N.  S.)  236,  35 
v.  Illinois,  185  U.  S.  203,  46  L.  ed.  W.  N.  C.  513,  26  L.  R.  A.  715,  30  Ml 
877,  22  Sup.  Ct.  619.  943.     Examine  Opinion  of  Justices, 

14  See  §  157,  herein.  In  re,  97  Me.  570,  55  AM.  828;  Busi- 
'  "Button  v.  State  Corporation  ness  Men's  League  v.  Waddill,  143 
Commission,  105  Va.  634,  54  S.  E.  Mo.  495,  40  L.  R.  A.  501;  Anderson  v. 
769.  Manchester  Fire  Assur.  Co.,  59  Minn. 

»•  O'Neill  v.  Insurance  Co.,  160  Pa.    182,  63  N.  W.  222,  241,  60  N.  W. 

277 


§§    164-166      DELEGATION   OF   POWER    BY   STATE — 

§  164.  Delegation  to  Levee  District. — Where  the  constitu- 
tion of  a  State  expressly  specifies  that  the  legislature  may 
delegate  the  taxing  power  to  counties  and  incorporated  towns, 
delegation  of  such  power  to  a  levee  district  is  impliedly  ex- 
cluded.17 

§  165.  Delegation  to  Board  of  Loan  Commissioners — 
Territory. — A  Territory  may  pass  an  act  establishing  a  board 
of  loan  commissioners  for  the  purpose  of  refunding  the  terri- 
torial indebtedness.  And  such  act  may  be  confirmed  and 
approved  by  Congress  so  as  to  be  beyond  the  power  of  the 
legislature  to  repeal,  even  though  the  authority  of  said  board 
is  derived  from  the  Territory  and  not  from  Congress.18 

§  166.  Delegation  to  Public  Service  Commission  of  New 
York. — The  New  York  laws  19  establish  a  public  service 
commission,  vesting  in  the  governor  the  power  of  appointment, 
by  and  with  the  consent  of  the  Senate,  and  also  the  power  of 
removal  for  certain  specified  causes,  and  give  to  such  commis- 
sion the  regulation  and  control  of  certain  public  service  corpo- 
rations enumerated  therein.20 

1025,  28  L.  R.  A.  609,  rev'g  24  Ins.  control   and   supervision   that   have 

L.  J.;    Flatley  v.  Phcenix  Ins.  Co.,  been     sustained     by     Federal     and 

95  Wis.  618,  70  N.  W.  828;  Dowling  state  courts,  and  that  as  to  many 

v.  Lancashire  Ins.  Co.,  92  Wis.  63,  important    subjects   is   either   a    re- 

65  N.  W.  738,  31  L.  R.  A.  112.  enactment  of  existing  New  York  law 

17  Reelfoot  Lake  Levee  Dist.  v.  or  a  reassignment  of  duties  already 
Dawson,  97  Tenn.  151,  36  S.  W.  imposed  upon  important  state  com- 
1041,  34  L.  R.  A.  725.  missions.     For  example,  the  impor- 

18  Murphy  v.  Utter,  186  U.  S.  95,  tant  functions  as  to  new  transit  lines 
22  Sup.  Ct.  776,  46  L.  ed.  1070.  in  New  York  City  heretofore  exer- 

19  Laws   1907,   chap.  429.  cised  by  the  Rapid  Transit  Commis- 

20  See  Appendix,  herein.  sion  are  transferred  to  the  Commis- 
In  an  article  in   vol.    19  of  The   sion  of  the  First  District,  and  the 

Green    Bag    (1907),    by    Travis    H.  Rapid    Transit    Act    which    defines 

Whitney,  it   is    said    of    the    Public  these  functions  is  not  changed  in  the 

Service     Commissions      Law,     that:  slightest  extent.      Furthermore,  the 

"  A  careful  examination  of  the  meas-  provisions   as   to   gas   and   electrical 

ure  discloses  that  it  follows  closely  corporations  are,  with  slight  changes, 

the  Interstate  Commerce  Act  and  is  those  contained  in  the  act  of  1905, 

founded    upon    principles   of   public  creating  the  State  Gas  and  Electricity 

278 


ENUMERATION   OF  SUBORDINATE    BODIES  §    167 

§  167.  Delegation  to  Railroad  Commissioners. — Railroad 
companies,  from  the  public  nature  of  the  business  carried  on 
by  them  and  the  interest  which  the  public  have  in  their  op- 
eration, are  subject  as  to  their  state  business  to  state  regula- 
tion, which  may  be  exerted  either  directly  by  legislative  au- 
thority or  by  administrative  bodies  endowed  with  power  to 
that  end.21     So  a  railroad  commission  is  an  administrative 

Commission    with    jurisdiction    over  v.  Iowa,  94  U.  S.  155,  24  L.  ed.  94; 

corporations  supplying  those  public  Peck  v.  Chicago  &  North-western  Ry. 

services.      *      *      *      The    commis-  Co.,  94  U.  S.  164,  24  L.  ed.  97;  Chi- 

sions  and  offices  abolished  and  super-  cago,  Milwaukee  &  St.  Paul  Rd.  Co. 

seded  are  the  State  Railroad  Com-  v.  Ackley,  94  U.  S.  179,  24  L.  ed.  99; 

mission,  the  State  Gas  Commission,  Winona    &    St.    Peter    Rd.    Co.   v. 

the  State  Inspector  of  Gas  Meters,  Blake,  94   U.    S.   180,  24  L.  ed.  99; 

and  the  Rapid  Transit  Commission."  Stone  v.  Wisconsin,  94  U.  S.  181,  24 

The  article  then  reviews  the  legisla-  L.  ed.  102;  Ruggles  v.  Illinois,  108 

tion  establishing  the  different  con-  U.  S.  536,  27  L.  ed.  816,  2  Sup.  Ct.  — ; 

missions  from  the  establishment  of  Illinois  Central  R.  Co.  v.  Illinois,  108 

the  first  Rapid  Transit  Commission  U.  S.  541,  27  L.  ed.  818,  2  Sup.  Ct. 

in  1875  and  its  reorganization  in  1891,  839;  Stone  v.  Farmers'  Loan  &  Trust 

the    scope,    jurisdiction    and    effect  Co.,  116  U.  S.  307,  29  L.  ed.  636,  6 

of  the  new  act  generally,   also   spe-  Sup.  Ct.  334,  348,  349,  388,   1191; 

cifically    upon    the    points     as     to  Stone  v.  Illinois  Central  Rd.  Co.,  116 

the  "Powers  of  the  Commissions";  U.  S.  347,  29  L.  ed.  650,  6  Sup.  Ct. 

"Court     Proceedings      and     Prefer-  348,  1191;  Stone  v.  New  Orleans  & 

ences";  "Immunity   of   Witnesses";  Northeastern  Rd.  Co.,  116  U.  S.  352, 

"Summary     Proceedings";    "Power  29  L.  ed.  651,  6  Sup.  Ct.  349,  391; 

Over    Rates,    etc.";    "Uniform  Ac-  Dow  v.  Beidelman,  125  U.  S.  680,  31 

counts";  "Control  over  Franchise";  L.  ed.  841,  8  Sup.  Ct.  1028;  Charlotte, 

Issue  of    Stocks,  etc.";   "Duties  of  Columbia    &    Augusta    Rd.    Co.    v. 

Common     Carriers";     "Actions    for  Gibbes,  142  U.  S.  386,  35  L.  ed.  1051, 

Penaltes";  "Gas  and  Electricity."  12  Sup.  Ct.  255;  Chicago  &  Grand 

See  §§  167-170,  herein.  Trunk  Ry.  Co.  v.  Wellman,  143  U.  S. 

Delegation     to     Board     of     Rapid  339,  30  J,,  ed.  176,  12  Sup.  Ct.  400; 

Transit    Railroad    Commission,    see  Pearsall  v.  Great  Northern  Ry.  Co., 

§  190,  herein.  161  U.  S.  646,  665,  40  L.  ed.  838,  16 

21  Atlantic  Coast  Line  Rd.  Co.  v.  Sup.  Ct.  705;  Louisville  *  Nashville; 

North    Carolina    Corp.    Commission,  Ry.  Co.  v.  Kentucky,  161  U.  S.  677, 

206  U.  S.  1,  19,  51  L.  ed.  933,  27  Sup.  695,  40  L.  ed.  849,  16  Sup.  Ct.  714; 

Ct.   585.     This   "elementary   propo-  Wisconsin,  Minnesota  &  Pacific  Rd. 

sition,  is  not  and  could  not  be  sue-  Co.  v.  Jacobson,  179  U.  S.  287,  45  L. 

cessfully  questioned  in   view  of  the  ed.  1 194,21  Sup.  Ct.  124;  Minneapolis 

long   line   of   authorities   sustaining  &  St.  Louis  Rd.  Co.  v.  Minnesota,  186 

that  doctrine,"  per  White,  J.,  citing  U.  S.  257,  46  L.  ed.  1151,  22  Sup.  Ct. 

Chicago,  Burlington  &  Quincy  R.  Co.  900;  Minnesota  &  St.  Louis  Rd.  Co. 

279 


§    167  DELEGATION    OF    POWER    BY    STATE — 

body  empowered  to  act  to  carry  out  the  State's  legislation  in 
matter  of  public  convenience,  safety  and  health.22  And  a 
statute  authorizing  state  railroad  commissioners  to  regulate 
railroad  corporations  and  other  common  carriers,  fix  rates,  etc., 
is  not  unconstitutional  as  a  delegation  of  legislative  powers.23 
The  board  of  railroad  commissioners  of  New  York,  when  ex- 
ercising its  authority,  exercises  a  large  discretion  as  to  what 
evidence  it  will  hear  upon  the  question,  whether  public  con- 
venience and  necessity  require  construction  of  a  proposed  rail- 
road and  the  issuance  of  a  certificate  to  that  effect.24  But  the 
power  conferred  upon  such  board  does  not  take  away  the  power 
of  New  York  City  to  enact  ordinances  regulating  railways  in 
its  streets.25  Nor  does  the  grant  to  such  commissioners  of  the 
power  to  consent  to  the  construction  of  street  railroads  deprive 
the  legislature  of  the  power  to  grant  a  franchise  to  street  rail- 
roads without  the  commissioners'  consent,  or  to  enact  a  statute 
which  operates  retrospectively  to  cure  defects  arising  from 
the  commissioners'  refusal  to  consent.26  In  Florida  the  powers 
of  railroad  commissioners  are  limited  by  the  express  or  implied 
provisions  of  the  statute;  it  may  make  rates  for  transportation 
but  not  for  particular  persons,  natural  or  artificial; 27  and  their 
rules  and  regulations  are  prima  facie  reasonable  and  just  so 
that  they  may  be  enforced  without  being  unconstitutional 
as  taking  property  without  due  process  of  law,  unless  such 

v.  Minnesota,  193  U.  S.  53,  48  L.  ed.  24  People    v.    Board    of    Railroad 

614,  24  Sup.  Ct.  396;  Chicago,  Bur-  Commrs.,  81  N.  Y.  Supp.  26,  81  App. 

lington  &  Quincy  Ry.  Co.  v.  Illinois,  Div.  237. 

200  U.   S.   561,   584,  50  L.   ed.  596,  Public  Service  Commission  Law  of 

26  Sup.  Ct.  341;  Atlantic  Coast  Line  New  York,  §  166,  herein,  and  note. 
Rd.   Co.   v.   Florida,  203  U.  S.  256,  Board  of  Rapid   Transit  Railroad 

27  Sup.  Ct.  108;  Seaboard  Air  Line  Commissioners,  see  §  190,  herein. 
Ry.  v.  Florida,  203  U.  S.  261,  27  Sup.  25  New   York   City   v.    Interurban 
Ct.  109.  St.  Ry.  Co.,  86  N.  Y.  Supp.  673,  43 

22  Morgan's  Louisiana  &  Texas  Rd.    Misc.  29. 

&  Steamship  Co.   v.  Railroad  Com-  2e  Kittinger    v.    Buffalo  Traction 

missioners,  109  La.  247,  33  So.  214.  Co.,  160  N.  Y.  377,  54  N.  E.  1081, 

23  Chicago  &  N.  W.  Ry.  Co.  v.  Dey,  aff'g  49  N.  Y.  Supp.  713,  25  App. 
35  Fed.  866,  4  R.  R.  &  Corp.  L.  J.  Div.  329. 

465,  2  Interstate  Comm.  Rep.  325,  1        27  State   v.   Atlantic   Coast  L.   R. 
L.  R.  A.  744.  Co.  (Fla.,  1906),  40  So.  875. 

280 


ENUMERATION    OF   SUBORDINATE    BODIES  §    167 

rules  and  regulations  are  proven  unreasonable.28  But  whether 
a  regulation  of  a  state  railroad  commission,  otherwise  legal,  is 
arbitrary  and  unreasonable  because  beyond  the  scope  of  the 
powers  delegated  to  the  commission,  is  not  a  Federal  question.29 
The  commission  may,  subject  to  review  thereof,  maintain  ac- 
tions for  penalties  in  case  its  orders  are  violated,  and  may  upon 
proper  notice  make  its  orders  executory.30  The  act  of  the 
legislature  of  Minnesota,  creating  a  railroad  commission,  is 
not  unconstitutional  in  assuming  to  establish  joint  through 
rates  or  tariffs,  over  the  lines  of  independent  connecting  rail- 
roads, and  apportioning  and  dividing  the  joint  earnings. 
Such  a  commission  has  a  clear  right  to  pass  upon  the  reason- 
ableness of  contracts  in  which  the  public  is  interested,  whether 
such  contracts  be  made  directly  with  the  patrons  of  the  road 
or  for  a  joint  action  between  railroads  in  the  transportation 
of  persons  and  property  in  which  the  public  is  indirectly  con- 
cerned. And  whether  or  not  connecting  roads  may  be  com- 
pelled to  enter  into  contracts  as  between  themselves,  and 
establish  joint  rates,  it  is  none  the  less  true  that  where  a  joint 
tariff  between  two  or  more  roads  has  been  agreed  upon,  such 
tariff  is  as  much  within  the  control  of  the  legislature  as  if  it 
related  to  transportation  over  a  single  line.31  Again,  as  the 
creation  of  a  board  of  railroad  commissioners  and  the  extent 
of  its  powers;  what  the  route  of  railroad  companies  created 
by  the  State  may  be;  and  whether  parallel  on  competing  lines 
may  consolidate,  are  all  matters  which  a  State  may  regulate 
by  its  statutes,  and  the  state  courts  are  the  absolute  interpre- 
tators  of  such  statutes;  a  decree  of  a  state  court  requiring  a 
railroad  company,  which  does  an  interstate  business,  to  con- 

28  State  v.  Atlantic  Coast  Line  Co.  As  to  appeal  from  "decision,  de- 
(Fla.,  1906),  41  So.  705.  nial,  direction  or  order"  of  municipal 

29  Atlantic  Coast  Line  Rd.  Co.  v.  authorities  to  railroad  commissioners, 
North  Carolina  Corp.  Commission,  see  Joyce  on  Elec.  Law  (2d  ed.), 
206  U.  S.  1,  51  L.  ed.  933,  27  Sup.  §  360a. 

Ct.  586.  31  Minneapolis  &  St.  Louis  Rd.  Co. 

30  Railroad  Commission  v.  Kansas  v.  Minnesota,  186  U.  S.  257,  22  Sup. 
City  Southern  Ry.  Co.,  Ill  La.  133,    Ct.  900,  46  L.  ed.  1151. 

35  So.  487. 

281 


§  168 


DELEGATION    OF    POWER    BY    STATE — 


struct  its  linos  within  the  State  in  accordance  with  provisions 
of  its  charter  and  the  directions  of  the  state  railroad  commission, 
is  not  an  interference  with  interstate  commerce  because  com- 
pliance therewith  entails  expense  or  requires  the  exercise  of 
eminent  domain.32 

§  168.  Delegation  to  Railroad  Commission— Public  Util- 
ity Law  of  Wisconsin.— The  Public  Utility  Law  of  Wisconsin 
of  1907.  gives  to  the  railroad  commission  of  that  State  juris- 
diction over  public  utilities  and  provides  for  the  regulation 
thereof.  Its  specific  provisions  are  given  elsewhere  herein,33 
and  its  general  features  are  those  set  forth  in  the  appended 
note.34 


32  Mobile,  Jackson  &  Kansas  City 
Rd.  Co.  v.  Mississippi,  210  U.  S.  187. 

33  See  Appendix,  herein. 

34  In  an  article,  by  Eugene  A. 
Gilmore,  upon  "The  Wisconsin  Pub- 
lic Utilities  Act, "  published  in  vol.  19, 
Green  Bag  (1907),  p.  517,  it  is  said: 
"By  the  legislation  of  1905  and 
amendments  thereto,  and  by  the  en- 
actment of  the  '  Public  Utilities  Bill ' 
at  the  recent  session  of  the  legis- 
lature, all  forms  of  public  business 
in  Wisconsin  are  subject  to  the  con- 
trol and  supervision  of  a  commission 
of  three  men  known  as  the  '  Railroad 
Commission'  appointed  by  the  gov- 
ernor for  six  years,  and  confirmed  by 
the  Senate.  The  governor  may  at 
any  time  remove  any  commissioner 
for  cause.  By  the  'Railroad  Act'  of 
1905  this  commission  was  first  cre- 
ated, and  all  common  carriers,  in- 
cluding steam  railroads,  interurban 
electric  railroads,  bridge  and  termi- 
nal companies,  express  companies, 
car  companies,  sleeping-car  com- 
panies and  freight  and  freight-line 
companies  were  placed  under  its  con- 
trol. The  recent  legislation  places 
under  this  same  commission,  tele- 
graph companies,  urban  street  rail- 

282 


way  companies,  and  all  public  util- 
ity companies.  *  *  *  The  super- 
vision and  control  extends  to  the 
investigation  and  fixing  of  rates,  tolls, 
and  charges;  the  securing  of  adequate 
and  equal  service;  prescribing  regu- 
lations as  to  the  conditions,  adequacy 
and  standards  of  service;  the  pre- 
vention of  unreasonable  preferences 
and  discriminations;  providing  for  a 
uniform  system  of  books  and  ac- 
counting; and  prescribing  conditions 
for  the  ownership  and  development 
of  public  utilities.  The  Public  Utili- 
ties Act  is  the  consummation  of  the 
movement  towards  a  more  effective 
control  of  public  service  companies, 
which  began  two  years  ago  with  the 
adoption  of  the  Railroad  Rate  Law, 
and  the  success  of  this  recent  meas- 
ure is  due  in  large  part  to  the  confi- 
dence in  commission  control,  which 
has  been  inspired  by  the  efficient  ad- 
ministration of  the  present  railroad 
commission.  *  *  *  While  mu- 
nicipal ownership  and  operation  are 
contemplated  and  provided  for,  the 
tendency  of  the  Act  will  be  strongly 
towards  private  rather  than  towards 
municipal  operation  of  public  utili- 
ties.    *     *     *     The    object    of    the 


ENUMERATION    OF   SUBORDINATE    BODIES  §    169 

§  169.  Delegation  to  Railroad  and  Warehouse  Commis- 
sion— Railroads — Carriers — Increase    of    Capital    Stock. — 

The  authority  vested  in  a  railroad  and  warehouse  commission 
to  determine,  in  the  exercise  of  their  discretion  and  judgment, 
what  are  equal  and  reasonable  rates  and  fares  for  the  trans- 
portation of  persons  and  property  by  a  railway  company,  is 
not  a  delegation  of  legislative  power.35  And  as  the  regulation 
of  the  business  conducted  by  common  carriers  is  one  over 
which  the  legislature  has  full  power  to  act,  ample  authority 
can  by  law  be  conferred  upon  a  railroad  and  warehouse  com- 
mission to  call  for  information  on  any  carrier,  whether  a 
natural  or  artificial  person,  resident  or  non-resident,  carrying 
on  business  within  the  State,  where  such  information  is  ab- 
solutely essential  for  the  proper  conduct  of  the  carrier  and 
the  protection  of  the  public.  And  a  statutory  provision  em- 
powering the  courts  to  direct  the  manner  of  service  of  notice 
upon  such  common  carrier,  when  proceeded  against,  does  not 
constitute  a  delegation  of  legislative  power  to  the  judiciary.36 
A  state  legislature  may  also  pass  a  statute  providing  generally 

law    is    to    secure    adequate    service  perience    of    the    Public    Franchise 

from  all  public  utilities  under  con-  League  of   Massachusetts  and   from 

ditions  which  are  fair  and  reasonable,  the  legislation  in  Massachusetts  and 

not  only  to  the  public,  but  also  to  New   York   dealing   with   the   same 

the   corporations  concerned,   and  at  problem."      Mr.    Gilmore    also    con- 

the   same    time    leave   sufficient    in-  siders   the  following  important   and 

ducement  for  the  improvement  and  characteristic  features  of  the  act,  un- 

extension  of  such  utilities  and  the  der  the   headlines   of    "Valuation"; 

further     installation     and     develop-  "Capitalization";       "Competition"; 

ment  of  similar  utilities  throughout  "Municipal  Ownership";   "Common 

the  State.     *     *     *     The  law  is  not  Use  of  Facilities";  "Accounting  and 

wholly  an  experiment,  but  is  based  Publicity";    "Depreciation";    "Con- 

upon  and  follows  a  long  line  of  Eng-  trol  of  Rates  and  Service";  "Sliding 

lish  legislation,  dating  as  far  back  as  Scale  and   Division  of  Surplus  Pro- 

1855,    which    has   dealt,    apparently  ceeds";and  "  Municipal  Control." 

with  great  success,  with  the  business  "State  v.  Chicago,   Milwaukee  & 

of   supplying   gas    for    lighting   and  St.  Paul  Ry.  Co.,  38  Minn.  281,  37 

heating.     Many  of  the  provisions  of  N.  W.  782. 

the  law  have  been  suggested  by  the  "State  ex  rel.  Railroad  <fc  Ware- 
Sheffield  Gas  Acts  of  1855  and  1800.  house  Commission  v.  Adams  Exp. 
The  framers  of  the  bill  have  also  Co.,  66  Minn.  271,  273,  38  L.  R.  A. 
drawn  from  the  information  and  ex-  225,  68  N.  W.  1085,   per  Collins,  J. 

283 


§    170  DELEGATION    OF   POWER    BY   STATE — 

for  what  purposes  and  upon  what  terms,  conditions  and  limi- 
tations an  increase  of  capital  stock  may  be  made,  and  it  may 
confer  upon  a  commission  (a  railroad  and  warehouse  commis- 
sion) the  administrative  duty  of  supervising  any  proposed  in- 
crease of  stock.  It  may  also  delegate  to  the  commission  the 
duty  of  finding  the  facts  in  each  particular  case,  and  empower 
and  require  it  to  allow  the  proposed  increase  where  the  facts 
exist  which  bring  the  case  within  the  statute.  But  the  legisla- 
ture cannot,  by  any  statute,  authorize  such  commission  in  its 
judgment  to  allow  an  increase  of  a  corporation's  capital  stock 
for  such  purposes  and  on  such  conditions  or  terms  as  it  shall 
or  may  deem  advisable,  or  in  its  discretion  to  refuse  it,  as  such 
an  attempt  to  confer  authority  would  be  a  delegation  of  leg- 
islative power.  And  where  the  statute  does  delegate  to  a 
commission  such  legislative  power,  it  is  unconstitutional  and 
void ;  a  distinction  exists  between  the  delegation  of  legislative 
powers  and  administrative  duties;  that  between  the  delega- 
tion of  power  to  make  a  law,  which  involves  a  discretion  as 
to  which  it  shall  be,  and  the  conferring  an  authority  or  discre- 
tion to  be  exercised  under  and  in  pursuance  of  the  law.37 

§  170.  Delegation  to  State  Corporation  Commission. — As 

a  State  has  inherent  power  to  regulate  and  control  public  serv- 
ice corporations,  operating  within  its  limits,  and  to  prescribe 
within  reasonable  bounds  the  facilities  and  conveniences  which 
shall  be  furnished  by  them,  it  may  delegate  to  or  confer  this 
power  upon  a  body,  such  as  a  state  corporation  commission, 
although  it  possesses,  to  some  extent,  legislative,  executive 
and  judicial  powers.  And  where  such  commission  is,  by  the 
constitution  and  laws  of  a  State,  given  control  over  common 
carriers  of  persons  and  goods  as  to  matters  relating  to  their 
public  duties  and  charges,  and  the  latter  are  given  full  op- 
portunity, upon  notice,  to  be  heard  as  to  their  defense  and 
also  a  right  of  appeal  to  the  state  court,  they  are  not,  by  such 
legislation,  deprived  of  their  property  without  due  process 

37  State  v.  Great  Northern  Ry.  Co.,    100  Minn.  445,  10  L.  R.  A.  (N.  S.) 

250,  111  N.  W.  289. 

284 


ENUMERATION   OF  SUBORDINATE   BODIES  §    170 

of  law.  But  although  this  applies  to  the  exercise  of  its  judicial 
powers,  still,  in  exercising  its  legislative  powers  the  commission 
is  not  obligated  to  give  notice  to  the  parties  to  be  affected 
thereby.  Again,  the  subjection  of  common  carriers  to  the 
control  of  such  corporation  commission  by  the  state  constitu- 
tion and  laws  does  not  deny  to  them  the  equal  protection  of 
the  laws  within  the  meaning  of  that  provision  of  the  Federal 
Constitution.  The  state  constitution  and  laws  apply  alike 
in  such  case  to  all  persons  and  companies  similarly  situated, 
and  the  classification  is  a  reasonable  one.  Nor  is  the  commis- 
sion an  illegal  and  invalid  tribunal,  even  though  invested  to 
a  certain  extent  with  legislative,  executive  and  judicial  powers; 
nor  does  such  grant  of  powers  conflict  with  the  Bill  of  Rights, 
which  expressly  provides  that,  "except  as  hereinafter  provided, 
the  legislative,  executive  and  judicial  departments  shall  be 
kept  separate  and  distinct."  But  where  a  choice  of  either 
of  two  methods  of  performing  a  charter  duty  is  given  a  corpo- 
ration, it  should  not  be  limited  to  one  of  them  by  the  commis- 
sion, nor  should  the  latter  make  any  order  affecting  the  right 
of  a  connecting  carrier  who  has  had  no  notice  and  was  not  a 
party  to  the  proceeding.38  Again,  while  a  State  in  the  exer- 
cise of  its  police  powers  may  confer  authority  on  an  adminis- 
trative agency  to  make  reasonable  regulations  as  to  the  place, 
time  and  manner  of  delivery  of  merchandise,  moving  in  chan- 
nels of  interstate  commerce,  such  commerce,  cannot  be  di- 
rectly burdened  thereby,  and  any  regulation  which  does  so  is 
repugnant  to  the  Federal  Constitution,  and  this  applies  to  an 
order  of  a  state  corporation  commission  which  requires  a  rail- 
way company  to  deliver  cars  from  another  State  to  a  con- 
signee on  a  private  siding  beyond  its  own  right  of  way  as  it 
constitutes  a  burden  on  interstate  commerce;  but  qimrc 
whether  such  an  order  applicable  solely  to  state  business 
would  be  repugnant  to  the  due  process  clause  of  the  Constitu- 
tion.39   The  state  corporation  commission,  in  determining  the 

38  Winchester  &  Strasburg  Rd.  Co.  so  McNeill  v.  Southern  Ry.  Co.,  202 
v.  Commonwealth,  106  Va.  264,  55  U.  S.  543,  26  Sup.  Ct.  722,  50  L.  ed. 
S.  E.  692.  1142,  aff'g  but  modifying  Southern 

285 


§    170  DELEGATION    OF   POWER    BY    STATE 

liability  of  a  corporation  for  a  fine  or  forfeiture  imposed  by  a 
statute  which  it  is  required  to  enforce,  acts  judicially,  and 
may  declare  the  act  imposing  such  fine  or  forfeiture  uncon- 
stitutional.40 

Ry.  Co.  v.  Greensboro  Ice  &  Coal  Co.,  As  to  powers  of  railroad  commis- 
134  Fed.  82.  sioners  on  appeal  see  Joyce  on  Elec. 

40  Commonwealth  v.  Atlantic  Coast    Law  (2d  ed.),  §  360a. 
Line  Ry.  Co.,  106  Va.  61,  55  S.  E. 
572,  7  L.  R.  A.  (N.  S.)  1086. 


286 


DELEGATION  OF  POWER  TO  AND  BY  COURTS    §  171 


CHAPTER  XIII. 


DELEGATION  OF  POWER  TO  AND  BY  COURTS. 


171.  Delegation  to  Courts — Gener- 

ally. 

172.  Delegation      to     Courts      of 

Equity — Railroad  Bridges 
Crossing  Highways. 

173.  Delegation    to    Supreme    Ju- 

dicial Court — Water  Rates. 

174.  Delegation  to  Appellate  Court 

— Reasonableness  of  Rates 
Fixed  by  Commission. 

175.  Delegation  to  Fiscal  Court — 

Subdelegation  to  County 
Judge — Subscription  to 
Stock  of  Railroad  Com- 
pany. 

176.  Delegation  to  Circuit  Courts 

— Designation  of  Tele- 
phone Route — Charter  to 
Obstruct  Highway. 

177.  Delegation  to  Federal  Circuit 

Courts — Power  to  Enforce 
Orders  of  Interstate  Com- 
merce Commission — Juris- 
diction— Contract  Rights  of 
Railroad. 

178.  Delegation    to   County   Com- 

missioners' Court — County 
Courts — Ferry  Franchise — 


Grant  of  Use  of  Streets  by 
Railroad  or  Gas  Company. 
§  179.  Delegation  to  Probate  Court 
— Use  of  Streets  by  Tele- 
phone Company. 

180.  Delegation  to  Court  of  Visi- 

tation. 

181.  Delegation     of     Power — Au- 

thority of  Dental  Board 
Over  Colleges. 

182.  Delegation      to      Board      of 

Equalization — Review  of 
Action  of — Federal  Courts. 

183.  Delegation  to  Commissioners 

by  Courts  —  Construction 
of  Street  Railroads — Ap- 
pointment by  Circuit  Judge 
of  Commissioners  of  Equali- 
zation. 

184.  Delegation  of  Powers — Power 

of  Courts  in  Relation  to — 
Power  of  Over  Munici- 
palities, Common  Council, 
Commissioners  of  Water- 
works, Railroad  Commis- 
sioners, and  Over  Other 
Courts,  etc. — Police  Power. 


§171.  Delegation  to  Courts— Generally.— A  duty  which 
is  not  a  judicial  but  a  legislative  or  administrative  one,  such  as 
fixing  railroad  transportation  rates,  cannot  be  forced  upon  the 
judiciary  contrary  to  the  state  constitution.1     So  the  estab- 


i  Steenereon  v.  Greal   Northern  R.    8    Am. 
Co..   69   Minn.    363,    72    X.  W.  713,    559. 


&    Eng.    R.    Cas.    (N.  S.) 

287 


§  171    DELEGATION  OF  POWER  TO  AND  BY  COURTS 

lishment  of  regulations  as  to  the  use  of  streets  is  such  a  legis- 
lative function  that  it  cannot  be  assumed  by  a  court,  although 
it  may  pass  upon  the  validity  or  reasonableness  of  such  regula- 
tions by  municipal  authorities  and  may  order  the  adoption 
by  them  of  reasonable  regulations  as  to  such  street  use.2  It 
is  held  the  power  committed  to  the  courts  of  Georgia  to  grant 
corporate  powers  to  private  companies,  not  being  judicial, 
but  altogether  legislative,  and  there  being  no  provision  for 
the  review  of  such  action,  a  writ  of  error  will  not  lie.3  Although 
the  authority  to  grant  a  franchise  of  establishing  and  main- 
taining a  toll  bridge  over  rivers  crossing  public  highways  in 
that  State  is  vested  solely  in  the  legislature,  yet  it  may  be 
exercised  by  it  or  be  committed  to  such  agencies  as  it  may 
choose.  And  the  statutes  therein  confer  upon  certain  courts 
the  power  to  establish  such  bridges,  but  not  to  bind  the  public 
in  respect  to  its  future  necessities.4  Whether  a  drainage  ditch 
proposed  to  be  constructed  pursuant  to  a  statute  5  will  be 
conducive  to  the  public  health,  convenience  or  welfare,  or 
whether  the  route  is  practicable,  are  questions  of  govern- 
mental or  administrative  policy  and  not  of  judicial  cognizance, 
therefore  jurisdiction  over  them  by  appeal  or  otherwise  cannot 
be  conferred  by  statute  upon  the  courts.6 

2  Michigan  Teleph.  Co.  v.  City  of  369;  City  of  Manistee  v.  Harley,  79 

St.  Joseph,  121  Mich.  502,  80  N.  W.  Mich.   238,   44   N.    W.    603.     Other 

383,  47  L.  R.  A.  87,  7  Am.  Elec.  Cas.  courts     recognize     the     same     rule. 

1,  4;  Grant,  J.,  said:  "It  is  conceded  Reagan  v.  Trust  Co.,  154  U.  S.  362, 

*     *     *     that  that  part  of  the  de-  14  Sup.  Ct.  1047;  Norwalk  St.  Ry., 

cree  by  which  the  court  assumed  the  Appeal  of,  69  Conn.  576,  37  Atl.  1080; 

right   to    establish    reasonable    rules  Nebraska  Tel.  Co.  v.  State,  55  Neb. 

and  regulations  is  void.     This  is  a  627,  76  N.  W.   171.     See  Joyce  on 

legislative  or  administrative  function  Electric  Law  (2d  ed.),  §§  220,  357. 

and  not  a  judicial  one.     The  court  3  Gas  Light  Co.  of  Augusta  v.  West, 

has  the  power  to  put  the  proper  au-  78  Ga.  318. 

thorities   in    the    defendant    city   in  4  Wright  v.  Nagle,  101  U.  S.  791, 

motion    to    adopt    reasonable    rules  25  L.  ed.  921. 

and  regulations,   and  to  pass  upon  5  Neb.  Comp.  Stat.,  1903,  chap.  89, 

the    validity    of    such    action    when  art.  1. 

taken.     This  is  the  extent  of  its  au-  6  Tyson    v.    Washington    County 

thority.      Houseman  y.    Kent,   Cir-  (Neb.,  1907),   110  N.  W.  634.     See 

cuit  Judge,  58  Mich.  364,  25  N.  W.  §§  136,  147,  herein. 

288 


DELEGATION  OF  POWER  TO  AND  BY  COURTS   §§  172,  173 

§  172.  Delegation  to  Courts  of  Equity — Railroad  Bridges 
Crossing  Highways. — The  legislature  may  confer  upon  a 
court  of  equity  jurisdiction  to  prescribe  the  crossing  to  be 
constructed  if  any  railroad  company  shall  not  properly  con- 
struct bridges  or  other  crossings  of  highways  as  required  by 
law,  and  such  legislation  is  within  the  constitutional  power 
of  the  legislature.7 

§  173.  Delegation  to  Supreme  Judicial  Court — Water 
Rates. — As  the  legislature  has  power  to  require  water  com- 
panies to  supply  water  to  consumers  at  reasonable  rates,  it 
may  give,  by  statute,  to  persons  who  are  actual  water-takers 
and  are  aggrieved,  or  to  the  selectmen  of  a  town,  the  right  to 
apply  to  the  supreme  judicial  court  and  have  two  or  more 
judges  of  such  court  determine  whether  the  rates  charged 
are  reasonable,  and  also  the  reasonableness  of  rates  to  the 
extent  of  the  interests  before  the  court,  and  such  statutory 
provision,  as  so  construed,  is  not  unconstitutional  nor  does, 
it  require  the  court  to  exercise  legislative  functions.8 

7  Mayor,  etc.,  of  City  of  Newark  This  statute  provided,  in  substance, 

v.  Erie  Rd.  Co.  (N.  J.  Ch.,  1907),  68  for  application,  by  the  selectmen  of 

Atl.  413,  415,  416.     The  court,  per  a  town   or  by  any  person   deeming 

Magie,  C,  upon  the  point  of  consti-  themselves    aggrieved,    to    the    Su- 

tutionality,  said:  "I  think  I  am  not  preme    Judicial    Court    to    have    a 

at  liberty  to  deal  with  these  ques-  reasonable  rate  fixed  and  that  two 

tions.     The  legislation  contained  in  or  more  judges  should  establish  such 

§  29    has    been    pronounced    to    be  maximum  rates  as  the  court  should 

within   the   constitutional    power   of  deem     proper     as     compared     with 

the  legislature  in  this  court  and  that  charges  for  similar  services  in  other 

decision  is  binding  on  me.     *     *     *  cities  and  towns  in  the  metropolitan 

Other  legislation  of  similar  scope  and  district.     The  statute  was,  however, 

effect  has  also  been  pronounced  con-  construed  as  above.    The  court  cited, 

stitutional  in  this  court  and  that  de-  or  considered,  the    following    cases: 

cision    has    been    approved    by    the  Smyth  v.  Ames,   169  U.  S.  466,   18 

Court  of  Errors."    See  §  200,  herein,  Sup.  Ct.  418,  42  L.  ed.  42;  Reagan 

as  to  Court  of  Chancery  and  appeal  v.  Trust  Co.,  154  U.  S.  362,  397,  14 

from  orders  of  highway  or  toll  road  Sup.  Ct.  1047,  1054,  38  L.  ed.  1014, 

commissioners.  1023;  Mudd  v.  New  York,  14H  (T.  S 

"  Janvrin,   Petitioner    (Janvrin    v.  .r>17,  537,  549,  552,  12  Sup.  Ct.  468, 

Revere  Water  Co.),   174  Mass.  514,  36    L.    ed.    247;    Chicago    &    Grand 

55   N.    E.   381;   Stat.    1895,   c.   488.  Trunk  Ry.  Co.  v.  Wellman,   143  U 

10  289 


§§    174-176      DELEGATION    OF    POWER    TO    AND    BY   COURTS 

§  174.  Delegation  to  Appellate  Court — Reasonableness  of 
Rates  Fixed  by  Commission. — Under  the  Indiana  constitu- 
tion judicial  power  is  vested  in  certain  courts  and  also  in  such 
other  courts  as  the  general  assembly  may  establish,9  so  that 
it  is  held  to  be  within  the  power  of  the  legislature  of  that 
State  to  confer  upon  the  appellate  court  appellate  jurisdiction, 
or  such  other  jurisdiction  as  it  deems  necessary  and  requisite 
where  the  duty  vested  is  judicial  only,  and  such  court  acts 
within  its  judicial  power  in  determining,  on  appeal,  the  rea- 
sonableness of  a  rate  fixed  by  a  commission,  and  whether  such 
commission  is  a  valid  one  duly  established  under  a  valid  law, 
and  also  whether  the  rate  in  question  has  been  fixed  in  due 
form  of  law.10 

§  175.  Delegation  to  Fiscal  Court — Subdelegation  to 
County  Judge — Subscription  to  Stock  of  Railroad  Com- 
pany.— Where  the  legislature  has  delegated  to  a  fiscal  court 
the  authority  to  subscribe  to  the  stock  of  a  railroad  company, 
and  that  court  has  authorized  the  subscription,  it  has  power 
to  delegate  to  the  county  judge,  who  presides  over  such  court, 
certain  ministerial  duties  involved  in  the  exercise  of  the  au- 
thority so  conferred  upon  the  court.11 

§  176.  Delegation    to    Circuit     Courts — Designation    of 

S.  339,  344,  12  Sup.  Ct.  400,  36  L.  ed.  Article  "Courts,"  by  Joseph  A. 
176;  Chicago,  Milwaukee  &  St.  Paul  Joyce  and  Howard  C.  Joyce.  See  also 
Ry.  Co.  v.  Minnesota,  134  U.  S.  418,  article  as  to  jurisdiction,  etc.,  of  the 
10  Sup.  Ct.  462,  702,  33  L.  ed.  970;  different  Federal  and  state  courts. 
Spring  Valley  Waterworks  v.  Schott-  10  Chicago,  Indianapolis  &  Louis- 
ler,  110  U.  S.  347,  354,  28  L.  ed.  173,  ville  Ry.  Co.  v.  Railroad  Commission, 
4  Sup.  Ct.  48;  Smith  v.  Strother,  68  38  Ind.  App.  439,  78  N.  E.  338;  s.  c, 
Cal.  194,  8  Pac.  852;  McMahon  v.  39  Ind.  App.  358;  act  Feb.  28,  1905, 
McHale,  174  Mass.  320,  54  N.  E.  854;  acts  1905,  chap.  53,  p.  83;  act  Feb. 
Veginan  v.  Morse,  160  Mass.  143,  1891,  acts  1891,  c.  37,  p.  39.  See 
148,  35  N.  E.  451;  Attorney  Gen'l  v.  §  200,  herein,  as  to  appeal  to  Chan- 
Old  Colony  R.  Co.,  160  Mass.  62,  86,  eery  Court  from  order  of  highway  or 
87,  35  N.  E.  252,  22  L.  R.  A.  112.  toll  road  commissioners. 

8  Const.,  art.  7,  §  1.  n  Estill  County  v.  Embry,  144  Fed. 

As    to    jurisdiction    of    Supreme  913;    acts    Ky.    1877-1878,  vol.    1, 

Court,  appellate  and  other  courts  in  pp.  913-919,  449. 
Indiana,  see  11  "Cyc."  pp.  816-818. 

290 


DELEGATION  OF  POWER  TO  AND  BY  COURTS    §  177 

Telephone  Route — Charter  to  Obstruct  Highway. — A  dele- 
gation of  power  by  the  legislature  to  the  Circuit  Court,  to 
designate  a  route  for  a  telephone  line  through  a  municipality, 
in  case  the  municipal  authorities  do  not,  upon  application, 
make  the  designation  within  a  certain  number  of  days,  is 
improper  and  void.12  Nor  has  the  Circuit  Court  of  the  city 
of  Richmond  any  power  to  grant  a  charter  to  a  corporation 
authorizing  it  to  obstruct  a  public  highway.13 

§  177.  Delegation  to  Federal  Circuit  Courts— Power  to 
Enforce  Orders  of  Interstate  Commerce  Commission — Ju- 
risdiction— Contract  Rights  of  Railroad. — The  twelfth  sec- 
tion of  the  Interstate  Commerce  Act,  which  authorizes  the 
Circuit  Courts  of  the  United  States  to  use  their  process  in  aid 
of  inquiries  before  the  commission,  is  not  unconstitutional  as 
imposing  on  judicial  tribunals  duties  not  judicial  in  their 
nature; 14  and  said  court,  in  proceedings  to  enforce  an  order 
of  the  commission,  under  section  sixteen  of  the  act,  is  only 

12  State,  New  York  &  New  Jersey  L.  136,  38  Atl.  752),  but  we  do  not 

Teleph.  Co.  v.  Mayor,  etc.,  of  Bound  think  that  this  renders  the  rest  of  the 

Brook,  66  N.  J.  L.  168,  48  Atl.  1022,  act  unconstitutional.     In  the  case  of 

7  Am.  Elec.  Cas.  65.    In  this  case  the  Home  Teleph.  Co.   v.  City  of  New 

court,  per  Garretson,  J.,  said:  "It  is  Brunswick,  62  N.  J.  L.   172,  it   is  to 

admitted  by  the  counsel  of  the  com-  be  noticed  that  it  did  not  appear  to  be 

plainant     that     the     delegation     of  claimed  that  the  company's  remedy 

power  to  the  Circuit  Court,  in  the  for  the  city's  failure  to  act  was  by 

act  of  1887,  to  designate  a  route,  in  application  to  the  Circuit  Court,  but 

case  the   common  council  does   not  that    requirement    was    disregarded, 

make    the    designation    within    fifty  and  application  made  to  the  Supreme 

days,  is  improper  and  void,  and  for  Court  for  a  mandamus."      The  ap- 

that  reason  application  for  manda-  plication  in  the  principal  case  was  for 

mus    is    made    to    this    court.      The  a   mandamus  upon   the   mayor  and 

counsel  for  the  borough  claim  that  council  of  Bound  Brook  to  designate 

this   delegation  of  power  to  the  Cir-  a  route  for  a  telephone  line  through 

cuit   Court   is  void,   and  renders  the  the    borough.       Examine    Beirs    v. 

entire     act     unconstitutional.       We  Vanceburg  Teleph.   Co.,   28  Ky.  L. 

think  that  the  acl  of  1888, "  which  is  Rep.  142,  89  S.  W.  126. 

in  terms  an  amendment  of  the  act  of  "  Richmond.  City  of,  v.  Smith,  101 

1887  and  takes  its  place,  "  contains  an  V&.  L61,43S.  E.  345. 

improper  delegation  of  power  to  the  u  Interstate    Commerce    Commis- 

Circuit  Court,  and  in  that   respect   is  sion  v.  Brimson,  154  U.  S.  447,  38  L. 

void  (Mayor,  etc.,  v.  Lord,  61    N.J.  ed.  1047,  14  Sup.  Ct.  1125. 

201 


§  178    DELEGATION  OF  POWER  TO  AND  BY  COURTS 

empowered  to  enforce  it,  if  at  all,  in  its  entirety,  and  cannot 
amend  or  modify  it.15  In  a  case  in  the  Federal  Supreme  Court 
where  a  railroad  company  claimed  a  contract  with  the  State 
for  the  exclusive  use  of  certain  space,  but  it  had  not  obtained 
the  requisite  consents  nor  acquired  any  property  by  con- 
demnation, it  was  held,  that  where  the  sole  ground  on  which 
the  jurisdiction  of  the  Circuit  Court  is  invoked  is  that  the  case 
arises  under  the  impairment  of  contract  clause  of  the  Con- 
stitution of  the  United  States,  and  the  facts  set  up  by  com- 
plainant are,  as  matter  of  law,  wholly  inadequate  to  establish 
any  contract  rights  as  between  them  and  the  State,  no  dispute 
or  controversy  arises  in  respect  to  an  unwarranted  invasion 
of  such  rights,  and  the  bill  should  be  dismissed  for  want  of 
jurisdiction.16  Where  a  statute  delegates  powers  to  a  city, 
the  ordinances  of  the  municipality  are  the  acts  of  the  State, 
and  their  unconstitutionality  is  the  unconstitutionality  of  a 
state  law  within  the  meaning  of  section  five  of  the  Circuit 
Court  of  Appeals  Act.17 

§  178.  Delegation  to  County  Commissioners'  Court — 
County  Courts — Ferry  Franchise— Grant  of  Use  of  Street 
by  Railroad  or  Gas  Company. — In  Texas  a  statute  may  con- 
stitute the  commissioners'  court  of  the  proper  county  as  the 
authority  from  which  a  license  must  be  obtained  by  a  com- 
pany desiring  to  operate  a  ferry.  Such  county  commissioners' 
courts  are  empowered  to  establish  public  ferries  whenever  the 

15  Interstate    Commerce    Commis-  Stat.   379,  U.  S.  Comp.   Stat.,  1901, 

sion  v.  Lake  Shore  &  Michigan  South-  pp.  3154-3165. 

ern  Ry.  Co.,  134  Fed.  942,  aff'd  202        1B  Underground    Railroad    of    the 

U.  S.  613,  26  Sup.  Ct.  766,  50  L.  ed.  City  of  New  York  v.  The  City  of 
1171;    act  March  2,  1889,  c.  382,  25-  New  York,  193  U.  S.  416,  48  L.  ed. 

Stat.  859,  U.  S.  Comp.  Stat.  1901,  p.  733,  24  Sup.  Ct.  494.    Cited  in  New- 

3165.     See  also  as  to  power  to  en-  buryport  Water  Co.  v.  Newburyport, 

force  order  of  Commission :  Interstate  193  U.  S.  561,  576,  48  L.  ed.  795,  24 

Commerce  Commission   v.   Southern  Sup.  Ct.  553. 

Pacific  Co.,  132  Fed.  829,  rev'd  on  17  Davis  &  Farnum  Manufg.  Co.  v. 
other  grounds  in  Southern  Pacific  Co.  Los  Angeles,  189  U.  S.  207,  23  Sup. 
v.  Interstate  Commerce  Commission,  Ct.  504,  47  L.  ed.  854.  See  11  "Cyc. " 
200  U.  S.  536,  26  Sup.  Ct.  330,  50  L.  pp.  941-944,  article  "Courts,"  by  Jo- 
ed. 585;  act  Feb.  4,  1887,  c.  104,  24  seph  A.  Joyce  and  Howard  C.  Joyce. 

292 


DELEGATION    OF    POWER   TO    AND    BY    COURTS         §    178 

public  interest  may  require  it,  and  no  one  is  permitted  to  keep 
a  public  ferry  and  to  charge  fees  without  a  license  from  the 
court.18  The  county  court  in  Tennessee  may  grant  a  ferry 
franchise.  It  may  also  grant  a  second  ferry  franchise  to  an- 
other without  being  guilty  of  gross  abuse  of  discretion,  even 
though  public  exigency  does  not  demand  two  ferries.19  Under 
an  Arkansas  decision  the  judgment  of  the  county  court,  in 
granting  or  refusing  a  ferry  franchise  or  privilege,  concludes 
those  whose  interest  is  merely  a  public  one,  as  the  court  acts 
judicially  in  the  matter;  but  one  whose  private  interests  are 
invaded  is  not  bound  thereby  except  he  voluntarily  appears 
and  so  makes  himself  a  party  to  the  proceeding  before  the 
court.20  Where  a  river  at  the  point  at  which  it  is  sought  to 
establish  a  ferry  is  the  dividing  line  between  two  counties,  the 
jurisdiction  of  their  respective  county  courts  is  concurrent, 
and  the  county  court  of  either  county  may  grant  a  ferry 
license  at  the  point  in  controversy,  but  if  one  of  the  courts 
assumes  jurisdiction  for  that  purpose  it  retains  jurisdiction 
until  final  adjudication,  and  the  other  cannot,  while  such  pro- 
ceeding is  pending,  assume  jurisdiction  of  an  application  of 
another  person  for  a  ferry  at  the  same  place.21  In  Texas  the 
county  commissioners'  court  may  grant  a  franchise  for  a  ferry 
privilege  to  the  center  of  a  river  constituting  the  boundary 
line  between  that  State  and  foreign  territory.22  A  county 
court  has  authority  within  its  administrative  discretion  to 
grant  or  refuse  a  railroad  company's  petition  for  the  use  of 
city  streets.23  So  county  court  commissioners  may  be  au- 
thorized by  statute  to  grant  to  an  individual  the  right  or 

,8Tugwell    &    Madison    v.    Eagle  ner,  25  Ky.  L.  Rep.  857,  76  S.  W. 

Pass.  Ferry  Co.,  74  Tex.  480,  9  S.  W.  828. 

120.  "Clark  County  Court  v.  Warner, 

"  r.uinn  v.  Eaves,  117  Tenn.  524,  25  Ky.  L.  Rep.  857,  76  S.  W.  828. 

101  S.  W.  1154.    See  Malone  v.  Wil-  "Tugwell    &    Madison    v.    Eagle 

limns,    118    Tenn.    TOO,    103    S.    W.  Pass.  Ferry  Co.,   74   Tex.  480,  9   S. 

798.  W.  120. 

20  Murray  v.  Menefee,  20  Ark.  561.  "St.     Louis,     Iron    Mountain     & 

Compare  as  to  notice  to  persons  inter-  Southern   Ry.  Co.  v.  St.  Louis,  92 

ested,  Clark    County  Court    v.  War-  Mo.  160,  4  S.  W.  664. 

293 


§    179         DELEGATION    OF    POWER    TO    AND    BY   COURTS 

franchise  to  lay  gas  pipes  and  mains  in  the  highways  and 
streets  of  a  county  or  of  certain  villages  therein.24 

§  179.  Delegation  to  Probate  Courts — Use  of  Streets  by 
Telephone  Company. — A  probate  court  may  be  authorized, 
in  case  of  failure  of  city  authorities  and  a  telephone  company 
to  agree  as  to  the  mode  of  construction  of  its  lines  and  the 
use  of  streets,  to  direct  such  mode  of  construction,  and  such 
power  is  not  inappropriately  bestowed,  and  the  statute  con- 
ferring such  authority  imposes  judicial  functions  upon  the 
court  and  does  not  violate  the  Constitution  on  the  ground  that 
the  power  conferred  is  distinctly  legislative.25  But  in  a  case 
where  a  telephone  company  obtains  its  right  to  occupy  the 
streets  with  its  poles,  lines,  etc.,  from  the  State,  and  the  mu- 
nicipal authorities  are  vested  with  the  power  to  agree  upon, 
not  the  right  to  use,  but  the  mode  of  use,  and  the  submission 
to  the  probate  court  is  consequent  upon  the  failure  to  agree 
as  above  stated;  that  is,  the  municipal  authorities  may  do  only 
what  the  probate  court  can  do  and  no  different  thing.  One  is 
a  substitute  in  all  respects  for  the  other.26  Again,  the  decree 
of  that  court  upon  the  matter,  must  be  something  more  than 
an  ordinance  or  general  grant  of  the  use  of  the  streets;  it  must 
be  a  judicial  ruling  or  decision  according  to  established  rules 
and  practice,  based  upon  proper  allegations  and  proof,  and 
not  constitute  in  effect  a  substitution  of  the  court  to  obtain 
legislative  action.27 

24  Consolidated  Gas  Co.  v.  County  also  held  that  the  act  of  1886,  related 

Commrs.    of    Baltimore    County,  99  only  to   incorporated  gas  companies 

Md.  403,  58  Atl.  214.  Act  of  1902,  and  not  to  an  individual  manufactur- 

ch.  368,  empowered  the  county  court  ing  gas. 

commissioners  of  Baltimore  county        25  Zanesville,  City  of,  v.  Zanesville 

to  grant  franchises  in  and  below  the  Teleph.  &  Teleg.  Co.,  64  Ohio  St.  67, 

highways  of  the  county  upon  certain  59  N.  E.  781,  52  L.  R.  A.  150,  rev'g 

terms.    Acts  of  1886,  ch.  384,  395  pro-  63  Ohio  St.  442,  59  N.  E.  109. 
hibited  the  formation  of  new  gas  com-        26  Farmer  &   Getz  v.   Columbiana 

panies  in  certain  counties,  including  County  Teleg.  Co.,  72  Ohio  St.  526, 

Baltimore,  and  provided  that  no  gas  74  N.  E.  1078;  Bates  Annot.  Stat., 

company  chartered  in  other  counties  §§  3461,  3471-3478,  3558. 
shall  have  the  right  to  lay  mains  or        "  Queen  City  Teleph.  Co.  v.  Cin- 

sell  gas  in  these  counties  and  it  was  cinnati,  27  Ohio  Cir.  Ct.  R.  385. 

294 


DELEGATION    OF    POWER    TO    AND    BY    COURTS        §§    180-182 

§  180.  Delegation  to  Court  of  Visitation.— A  statute  creat- 
ing a  court  of  visitation  declaring  its  jurisdiction  and  powers, 
and  providing  for  proceedings  and  procedure  therein,  is  un- 
constitutional and  void  where  in  the  powers  conferred  upon  that 
tribunal,  legislative,  judicial  and  administrative  functions  are 
commingled  and  interwoven  in  a  manner  violative  of  the  con- 
stitutional requirement  that  the  three  great  departments  of 
the  government  be  kept  separate,  and  the  powers  and  duties 
of  each  exercised  independently  of  the  other.28 

§  181.  Delegation  of  Power — Authority  of  Dental  Board 
over  Colleges.  —The  authority  of  a  board,  under  a  law  regulat- 
ing dentistry,  to  pass  upon  the  reputability  of  colleges,  is 
neither  legislative,  nor  judicial,  but  is  quasi-judicial;  that  spe- 
cies of  authority  is  commonly  intrusted  to  individuals,  boards, 
or  commissions  to  determine  matters  of  fact  when  that  is 
essential  to  the  performance  of  administrative  duties.29 

§  182.  Delegation  to  Board  of  Equalization — Review  of 
Action  of — Federal  Courts. — The  power  to  equalize  taxes 
may  be  delegated  to  a  board  of  equalization  commissioners 
without  violating  the  constitutional  provision  against  a  delega- 
tion of  legislative  power,  as  it  is  a  quasi-judicial  power.30 
Proceedings  before  a  board  of  equalization  being  quasi-judicial, 
if  an  order  made  by  it  is  within  its  jurisdiction,  it  is  not  void 
and  cannot  be  resisted  in  an  action  at  law;  nor  can  overvalua- 
tion be  made  a  ground  of  defense1  at  law.  The  action  of  the 
tax  officers  being  in  the  nature  of  a  judgment  must  be  yielded 
to  until  set  aside.  And  this  can  only  be  done  in  a  direct  pro- 
ceeding.31    A  state  board   of  equalization  is  one  of  the  in- 

28  State  v.  Johnson,  61  Kan.  803,  107  N.  W.  635,  Rev.  Stat,,  1898, 
49  L.  R.  A.  662,  60  Pac.  1068.  See  §§  1077a,  10776.  See  New  Jersey 
also  Western  ITnion  Teleg.  Co.  v.  Zinc  Co.  v.  Sussex  County  Board  <>f 
Myatt,  98  Fed.  335.  I  qualization,  70  N.  J.  L.  186,  56  Atl. 

29  State  ex  rel.  Milwaukee  Medical  138.     See  §  183,  herein. 

College  v.  Chittenden,  127  Wis.  468,  Western    Union    Teleg.    Co.    v. 

107  N.  W.  500.  Missouri   ex  rel.  Gottlieb,  190  lT.  S. 

30  Foster  v.   Rowe,   128  Wis.   :'>_><>,    412,  47  L.  ed.  11 1(1,  L'ii  Sup.  Ct.  730. 

295 


§    182         DELEGATION    OF    POWER    TO    AND    BY    COURTS 

strumentalities  provided  by  a  State  for  the  purpose  of  raising 
the  public  revenue  by  way  of  taxation,  and  it  may  be  made 
the  duty  of  such  board  to  make  an  original  assessment  on 
corporations  such  as  traction  companies,  and,  where  no  appeal 
is  provided,  its  decision  is  conclusive  except  as  proceedings 
for  relief  may  be  taken  in  the  courts,  and,  in  so  far  as  the 
board  is  one  of  review  its  decisions  are  equally  conclusive  as 
in  case  of  original  assessments.  A  board  of  equalization  acting 
under  the  constitution  and  laws  of  a  State  represents  the  State, 
and  its  action  is  that  of  the  State.  But  the  provisions  of  the 
Fourteenth  Amendment  of  the  Federal  Constitution  are  not 
confined  to  the  action  of  the  State  through  its  legislature,  or 
through  the  executive  or  judicial  authority.  Those  provisions 
cover  and  relate  to  all  the  instrumentalities  through  which  the 
State  acts;  therefore,  whoever  by  virtue  of  public  position  un- 
der the  government  of  a  State  deprives  another  of  any  right 
guaranteed  by  that  amendment  against  deprivation  by  the 
State,  violates  such  constitutional  inhibition,  so  that,  as  he 
acts  for  the  State  and  in  the  State's  name  and  is  clothed  with 
the  powers  of  the  State,  his  act  is  that  of  the  State.  It  follows, 
then,  that  when  the  action  of  taxing  bodies  is  in  effect  the  ac- 
tion of  the  State  it  is  reviewable  in  the  Federal  courts  at  the 
instance  of  one  who  claims  that  he  has  been  thereby  deprived 
of  his  property  without  due  process  of  law  and  has  been  denied 
the  equal  protection  of  the  law.  And  it  is  held  that  the  action 
of  a  board  of  equalization  resulting  in  illegal  discrimination, 
not  being  an  action  forbidden  by  the  state  legislature,  is  not 
beyond  review  by  the  Federal  courts  under  the  Fourteenth 
Amendment.32 

See  State  of  Missouri  v.  Dockery,  191  U.  S.  154,  30  L.  ed.  1088,  7  Sup.  Ct. 

U.  S.  165,  24  Sup.  Ct.  53,  48  L.  ed.  1244;  Cummings  v.  Nat.  Bank,  101  U. 

133   (judgment  of  board  as  to  tax  on  S.  153,  30  L.  ed.  1088,  7  Sup.  Ct.  1244; 

corporation    final);    Pittsburg,    Cin-  Cochise,  County  of ,  v.  Copper  Queen 

cinnati,  Chicago  &  St.  Louis  Ry.  Co.  Consol.  Min.  Co.  (Ariz.,  1903),  71  Pac. 

v.  Backus,  154  U.  S.  421,  14  Sup.  Ct.  946;  Foster  v.  Rowe,  128  Wis.  326, 

1114,  38  L.  ed.    1031;  Whitbeck  v.  107  N.  W.  635. 

Mercantile  Nat,  Bank,  127  U.  S.  193,        "Raymond     v.     Chicago     Union 

8  Sup.  Ct.  1121,  32  L.  ed.  118;  Wil-  Traction  Co.,  207  U.  S.  20,  35,  36,  52 

liams  v.  Supervisors  of  Albany,   122  L.  ed.  7,  28  Sup.  Ct.  7,  aff'g  114  Fed. 

296 


DELEGATION  OF  POWER  TO  AND  BY  COURTS    §  183 

§  183.  Delegation  to  Commissioners  by  Courts — Con- 
struction of  Street  Railroads — Appointment  by  Circuit 
Judge  of  Commissioners  of  Equalization. — The  constitution 
of  New  York  provides  that  no  law  shall  authorize  the  construc- 
tion or  operation  of  a  street  railroad  except  upon  the  condition 
that  the  consent  of  the  owners  of  one-half  in  value  of  the  prop- 
erty bounded  on,  and  the  consent  also  of  the  local  authorities 
having  the  control  of  that  portion  of  a  street  or  highway  upon 
which  it  is  proposed  to  construct  or  operate  such  railroad  be 
first  obtained,  or  in  case  the  consent  of  such  property  owners 
cannot  be  obtained,  the  appellate  division  of  the  Supreme 
Court,  in  the  department  in  which  it  is  proposed  to  be  con- 
structed, may,  upon  application,  appoint  three  commissioners 
who  shall  determine,  after  a  hearing  of  all  parties  interested, 
whether  such  railroad  ought  to  be  constructed  or  operated,  and 
their  determination,  confirmed  by  the  court,  may  be  taken  in 
lieu  of  the  consent  of  the  property  owners.33  This  provision 
does  not,  however,  apply  to  the  streets  of  New  York  City, 
the  titles  to  which  are  in  the  city.34  If  commissioners,  acting 
under  this  provision,  make  a  report  adverse  to  the  construc- 
tion of  the  road,  it  is  held  that  there  is  no  power  in  the  ap- 
pellate division  to  set  aside,  conform  or  review  their  de- 
termination.35 But  if  the  commissioners  are  divided,  the 
court  may  confirm  the  report  of  the  majority.36  The  restriction 
also  applies  as  well  to  a  part  of  as  to  a  complete  road,37  and 
additional  but  not  inconsistent  restrictions  may  be  imposed.38 

557, distinguishing  Barney  v.  City  of  Co.,  Ill  N.  Y.  588,  20  N.  Y.  St.  R. 

New  York,   193  N.  Y.  430.     See  ci-  516,  19  N.  E.  645,  aff'g  15  N.  Y.  St. 

tations    under    last    preceding    note  R.  977,  1  N.  Y.  Supp.  114,  19  N.  E. 

herein.  645. 

33  New  York  Const.,  art.  Ill,  §  18.  38  Matter  of  Thirty-Fourth  St.  R. 

3<  Matter  of  Gilbert  Elev.  R.  Co.,  Co.,  102  N.  Y.  343,  7  N.  E.  172,  rev'g 

70  N.  Y.  361,  30  Abb.  N.  C.  434,  aff'g  37  Hun,  442. 

9  Hun,  303.  Examine  further  as  to  the  effect  of 

35  Nassau  Elec.   R.  Co.,  In  re,   40  these    constitutional    provisions    on 

N.  Y.  Supp.  334,  6  App.  Div.  141.  pre-existing  corporations,  Ingersoll  v. 

"Port  Chester  St.  Ry.  Co.,  In  re,  Nassau    Elec.  R.  Co.,    17  N.    Y.  453j 

43  App.  Div.  536,  60  X.  Y.  St.  R.  160.  Matter  of  Third  Ave.  R.  Co.,  121  N. 

37  Matter  of   Metropolitan  Transit  V.  536,  31  N.  Y.  St.  R.  693,  24  N.  E. 

297 


§  184    DELEGATION  OF  POWER  TO  AND  BY  COURTS 

In  Wisconsin  a  statute  is  not  unconstitutional  as  conferring 
on  a  circuit  judge  non-judicial  duties  where  it  empowers  such 
judge,  upon  application  made  with  proof  of  notice,  to  appoint 
commissioners  of  equalization  to  perform  duties  in  cities  and 
other  political  subdivisions  within  the  county.39 

§  184.  Delegation  of  Powers — Power  of  Courts  in  Re- 
lation to — Power  of  Over  Municipalities,  Common  Council 
Commissioners  of  Waterworks,  Railroad  Commissions,  and 
Over  Other  Courts,  etc. — Police  Power.40 — In  view  of  the 
three  great  and  separate  divisions,  made  by  the  Constitution, 
of  the  powers  of  a  State  into  the  legislative,  judicial  and  ex- 
ecutive, a  city  assembly  cannot  be  restrained  by  a  Circuit 
Court  from  enacting  an  ordinance  granting  to  a  street  railroad 
company  a  right  of  way  in  the  city's  streets.41  So  a  statute 
may  confer  upon  a  board  of  public  officers,  such  as  the  com- 
missioners of  waterworks,  a  discretion  to  make  a  contract 
with  the  "lowest  and  best  bidder,"  and  this  discretion  cannot 
be  controlled  by  mandamus.42  Nor  does  the  Supreme  Court 
of  Louisiana  act  as  a  supervisory  or  administrative  board,  but 
only  as  a  judicial  body  in  taking  cognizance  of  and  adjudicat- 
ing disputed  matters  arising  between  the  railroad  commission 
and  state  railroads.43  And  the  determination  of  the  board  of 
railroad  commissioners  of  New  York,  whether  or  not  a  certifi- 
cate shall  be  issued  that  public  convenience  and  necessity  re- 
quire the  construction  of  a  proposed  railroad,  does  not  con- 
stitute a  subject  for  judicial  revision.44  Again,  few  principles 
are  better  settled  in  the  courts  of  this  country  than  this,  that 
where  the  legislative  powers  are  delegated  to  a  municipal  corpo- 

951 ,  rev'g  56  Hun,  537,  9  N.  Y.  Supp.        «  Morgan's  Louisiana  &  Texas  Rd. 

833,  31  N.  Y.  St.  R.  645.  &  Steamship  Co.  v.  Railroad  Com- 

39  Foster  v.  Rowe,  128  Wis.  326,  mission,  109  La.  247,  33  So.  214.    See 
107  N.  W.  635.  Railroad  Commission  v.  Weld  (Tex. 

40  See  §§  136,  200,  herein.  Civ.  App.),  66  S.  W.  122,  1095. 

41  Albright  v.  Fisher,  164  Mo.  56,        "4  People    v.     Board    of    Railroad 
64  S.  W.  106.  Commissioners,  175  N.  Y.  516,  67  N. 

42  State  of  Ohio  ex  rel.  Walton  v.  E.  1088,  aff 'g  81  N.  Y.  Supp.  20,  81 
Hermann,  63  Ohio  St.  440.  App.  Div.  242. 

298 


DELEGATION  OF  POWER  TO  AND  BY  COURTS    §  184 

ration,  its  discretion  within  the  legitimate  sphere  of  its  au- 
thority is  proportionately  as  wide  as  is  the  like  discretion 
possessed  by  the  legislature  of  the  State,  "and  as  free  from 
outside  interference,  and  that  discretion  is  not  subject  to 
judicial  revision  or  reversal."  45  Municipal  corporations  are 
not,  however,  completely  beyond  judicial  review  and  control, 
and  such  corporations,  even  in  the  exercise  of  the  discretion 
and  jurisdiction  delegated  to  them  by  the  legislature,  may  be 
subject  to  judicial  review  and  control,  although  such  discretion 
must  and  will  be  accorded  broad  scope  and  great  deference, 
and  the  honest  judgment  of  the  authorities  of  a  municipality 
as  to  what  is  promotive  of  the  public  welfare  must  ordinarily 
control  notwithstanding  it  may  not  accord  with  the  views  of 
the  courts.  The  delegation  of  legislative  power  to  subordinate 
political  divisions  of  the  State  is  solely  for  public  purposes  and 
must,  therefore,  be  exercised  solely  with  reference  to  them. 
If  an  act  be  so  remote  from  every  such  purpose  that  no  relation 
thereto  can  within  reason  be  discovered,  such  act  must  be  ex- 
cluded from  the  delegation.  To  that  extent,  then,  courts  will 
inquire  into  the  purpose  and  policy  of  municipal  conduct,  and 
will  hold  unauthorized,  and  invalid,  acts  which  are  wholly 
unreasonable.  This  rule  applies  to  and  makes  invalid  a  village 
ordinance  conferring  franchises  upon  and  making  a  contract 
with  a  corporation  binding  the  village  and  its  municipal  suc- 
cessors for  a  term  of  thirty  years,  and  practically  for  fifty 
years,  to  take  all  its  lights  from  a  corporation  and  pay  for  them 
during  the  entire  period  at  rates  definitely  fixed  therein  con- 
siderably in  excess  of  rates  paid  elsewhere,  under  similar 
circumstances,  no  reservation  being  made  in  favor  of  the 
power  and  control  of  the  village  except  of  "such  rights  as  it 
cannot  waive,"  and  this  is  especially  so  where  other  provisions 
evidence  an  intent  to  benefit  the  corporation  irrespective  of 
the  public  welfare,  and  it  also  appears  that  the  village  has  a 
population  sufficient  to  make  it  a  city  and  immediately  ad- 
join a  city,  the  gas  electrical  facilities  of  which  will  without 

"Barber  Asphalt   Paving  Co.    v.    French,  158  Mo.  534,  58  S.  W.  934, 

per  Gantt,  C.  J. 

299 


§  184    DELEGATION  OF  POWER  TO  AND  BY  COURTS 

reasonable  doubt  be  speedily  extended  to  such  village.46  So 
where  a  duty  of  promulgating  reasonable  rules  and  regulations 
as  to  the  occupancy  by  a  telephone  company  of  city  streets  is 
devolved  in  the  first  instance  upon  the  common  council  of  a 
city,  upon  application  made  by  the  company,  and  the  act  of 
such  council  involves  discretion,  a  court  will  not  prescribe  in 
advance  what  such  action  shall  be,  or  how  to  act,  but  it  may 
compel  some  action.  And  where  the  company  possesses  a 
legislative  franchise  to  occupy  such  streets,  subject  only  to 
the  police  power  of  the  municipality,  it  has  the  right  on  proper 
application  to  have  such  police  power  exercised  by  the  ap- 
proval of  its  plans  and  the  prescribing  of  reasonable  regula- 
tions.47 Again,  it  is  held  that  the  Circuit  Court  of  Missouri 
cannot  interfere  with  the  exercise  of  the  administrative  dis- 
cretion conferred  upon  a  county  court  to  allow  or  refuse  a  pe- 
tition to  grant  to  a  railroad  company  the  use  of  city  streets.48 
Nor  will  the  Supreme  Court  of  Tennessee  interfere  with  the 
grant  by  the  county  court  of  a  second  ferry  franchise  to  an- 
other person  than  the  grantee  of  the  first  franchise,  even 
though  public  exigency  does  not  demand  two  ferries.49  And 
whether  the  statutes  of  a  State  authorize  the  incorporation 
of  a  bridge  company  to  construct  a  bridge  over  a  navigable 
river  separating  it  from  another  State;  whether  such  statutes 
confer  the  right  of  eminent  domain  on  a  corporation  of  another 
State,  and  whether  such  a  corporation  can  exercise  therein 
powers  other  than  those  conferred  by  the  State  of  its  creation, 
are  all  questions  of  state  law,  involving  no  Federal  questions, 
and  the  rulings  of  the  highest  court  of  the  State  are  conclusive 
upon  the  Federal  Supreme  Court.50  Whatever  is  contrary  to 
public  policy  or  inimical  to  the  public  interests  is  subject  to  the 
police  power  of  the  State,  and  is  within  legislative  control; 

46  Le  Feber  v.  West  Allis,  119  Wis.  Southern  Ry.  Co.  v.  St.  Louis,  92  Mo. 
608,  97  N.  W.  203.  160,  4  S.  W.  664. 

47  State  ex  rel.  Wisconsin  Metrop-  49  Guinn  v.  Eaves,  117  Tenn.  524, 
olis  Telephone   Co.    v.  City  of   Mil-  101  S.  W.  1154. 

waukee  (Wis.,  1907),  113  N.  W.  40,  50  Stone  v.  Southern  Illinois  & 
41.  Missouri  Bridge  Co.,  206  U.  S.  267,  51 

48  St.     Louis,     Iron    Mountain     &    L.  ed.  1057,  27  Sup.  Ct.  — . 

300 


DELEGATION    OF    POWER    TO    AND    BY    COURTS  §    184 

and,  in  the  exercise  of  such  power,  the  legislature  is  vested 
with  a  large  discretion,  which,  if  exercised  bona  fide  for  the 
protection  of  the  public,  is  beyond  the  reach  of  judicial  in- 
quiry.51 But  while  a  local  regulation,  even  if  based  upon  the 
acknowledged  police  power  of  a  State,  must  always  yield  in 
case  of  conflict  with  the  exercise  of  the  general  government 
of  any  power  it  possesses  under  the  Constitution,  the  mode  or 
manner  of  exercising  its  police  power  is  wholly  within  the  dis- 
cretion of  the  State  so  long  as  the  Constitution  of  the  Uni- 
ted States  is  not  contravened,  or  any  right  granted  or  secured 
thereby  is  not  infringed,  or  not  exercised  in  such  an  arbitrary 
and  oppressive  manner  as  to  justify  the  interference  of  the 
courts  to  prevent  wrong  and  oppression.52  Again,  while  every 
intendment  is  to  be  made  in  favor  of  the  lawfulness  of  the 
exercise  of  municipal  power  making  regulations  to  promote 
the  public  health,  municipal  by-laws  and  ordinances,  and  even 
legislative  enactments  undertaking  to  regulate  useful  business 
enterprises,  are  subject  to  investigation  in  the  court  with  a 
view  to  determining  whether  the  law  or  ordinance  is  a  lawful 
exercise  of  the  police  power,  or  whether,  under  the  guise  of 
enforcing  police  regulations,  there  has  been  an  unwarranted 
and  arbitrary  interference  with  constitutional  rights  to  carry 
on  a  lawful  business,  make  contracts,  or  use  and  enjoy  prop- 
erty.53 

51  Louisville   &   N.    R.    R.   Co.    v.    U.  S.  11,  49  L.  ed.  643,  25  Sup.  Ct. 
Kentucky,  161  U.  S.  677,  40  L.  ed.    358. 

849,  16  Sup.  Ct.  714.  "  Dobbins  v.  Los  Angeles,  195  U. 

52  Jacobson  v.  Massachusetts,  197     S.  223,  49  L.  ed.  169,  25  Sup.  Ct.  18. 


301 


DELEGATION    OF    POWER — MUNICIPAL, 


CHAPTER  XIV. 

DELEGATION    OF   POWER — MUNICIPAL,    QUASI-MUNICIPAL   AND 
SUBORDINATE   AGENCIES. 


185.  Delegation   to   Municipalities 

— Generally. 

186.  Delegation  to  Municipality — 

Ferries  —  Bridges  —  Rates 
for  Gas,  Water,  Street 
Railroads,  etc. 

187.  To   What   Extent   Franchise 

Granted  by  State  Is  Subject 
to  Municipal  Consent  for 
Exercise — Power  to  "Pre- 
vent" Distinguished  From 
Power  to  "Regulate"  — 
Consent  to  Use  of  Streets, 
etc. 

188.  Delegation    to    Municipal    or 

City  Council — Street  Rail- 
ways— Extent  of  Power  of 
City  Council. 

189.  Right    to    Amend    Municipal 

Charter,  as  to  Grant  of 
Franchise,  Not  a  Delega- 
tion of  Legislative  Power 
to  People. 

190.  Delegation  to  Board  of  Rapid 

Transit  Railroad  Commis- 
sioners —  Subways  ■ —  City 
Ownership  and  Obligations 
— Change  of  Construction 
Plans. 

191.  Power  of  Electrical  Commis- 

sion— Electrical  Conduits 
— Board  of  Commissioners 
of  Electrical  Subways — 
Board  of  Electrical  Con- 
trol. 

192.  Delegation  of  Power — Grant 

of     Franchises — Board     of 

302 


195. 


Estimate  and  Apportion- 
ment of  New  York — Trans- 
fer of  Power  from  Another 
Board  —  Cumulative  Vot- 
ing. 

193.  Dock  Department  no  Power 

to  Grant  Franchises  — 
Street  Railway. 

194.  Delegation  to  County  Com- 

missioners —  Ferries  — 
Bridges — Use  of  Streets — 
Permits — Gas  and  Elec- 
tricity— Street  Railroads — 
Repaving  —  Removal  of 
Poles,  etc. 

Delegation  to  Towns,  Villages 
and  Counties  —  Water 
Rates  —  Ferries  —  Heat, 
Light  and  Power  Franchise 
and  Contract,  When  Void — 
Waterworks  —  Hydrant 
Rentals. 

Delegation  to  Town  Council 
— Use  of  Streets. 

Delegation  to  Selectmen,  or 
to  Board  of  Aldermen  of 
City — Use  of  Streets — Lo- 
cation and  Control  of  Elec- 
trical Appliances,  etc.  — 
Conditions  as  to  Street 
Railway  Fares. 

198.  Delegation     to     Trustees    of 

Town  —  Drawbridge  — 
Board  of  Gas  Trustees — 
Gas  Rates — Lighting  Plant 
Ordinance  Invalid. 

199.  Delegation  to  Board  of  Su- 


196. 


197. 


QUASI-MUNICIPAL   AND    SUBORDINATE    AGENCIES      §    185 


pervisors — Grant  of  Turn- 
pike Franchise — Right  to 
Collect  Tolls. 
200.  Delegation  to  Highway  or 
Toll  Road  Commissioners 
— Public  Lighting—  Fran- 
chise— Bridges — When  Or- 
der to  Cease  Taking  Tolls 
Invalid  —  Delegation       to 


City  Officials,  Subway  Con- 
struction. 
§  201.  Delegation  to  Police  Juries — 
Ferries,  Bridges  and  Roads. 

202.  Delegation  of  Power  by  Mu- 

nicipality. 

203.  Delegation  by  Ordinance  to 

Street  Commissioner. 


§  185.  Delegation    to    Municipalities  —  Generally. — The 

State  has  power  not  only  to  grant  a  franchise  directly  by  leg- 
islative enactment,  but  such  enactment  may  specify  the  mode 
by  which  a  municipality  may,  under  the  charter  of  the  corpo- 
ration which  is  in  itself  a  legislative  enactment,  grant  the 
franchise  of  privilege.1    But  such  power  in  a  municipality  to 


1  Port  of  Mobile  v.  Louisiana  & 
Nashville  Rd.  Co.,  84  Ala.  115,  5  Am. 
St.  Rep.  342,  4  So.  106. 

Examine  the  following  cases: 

United  States:  New  Orleans  Gas 
Co.  v.  Louisiana  Light  Co.,  115  U.  S. 
650,  659,  29  L.  ed.  516,  6  Sup.  Ct. 
252  (franchise  must  be  granted  by 
State  or  municipality  acting  under 
legislative  authority);  Andrews  v. 
National  Foundry  &  Pipe  Works, 
Lim.,  61  Fed.  782,  787-789,  10  C.  C. 
A.  60,  per  Woods,  Cir.  J.  (legislature 
may  delegate  such  power  to  munici- 
pal corporations). 

Maryland:  Purnell  v.  McLane,  98 
Md.  589,  592,  593,  56  Atl.  830  (fran- 
chise must  be  granted  by  State  or 
municipality  acting  under  legislative 
authority). 

New  York:  People  ex  rel.  Wood- 
haven  Gas  Co.  v.  Deehan,  153  N.  Y. 
525,  47  N.  E.  787,  rev'g  11  App.  Div. 
175.  See  Ghee  v.  Northern  Union 
Gas  Co.,  56  N.  Y.  Supp.  450,  454,  34 
App.  Div.  551,  per  O'Brien,  J.,  case 
rev'd  158  N.  Y.  510,  53  N.  E.  592; 
Sauter  v.  Utica  City  Nat.  Bank,  90 
N.  Y.  Supp.  838,  45  Misc.  15. 


Washington:  State  v.  Taylor,  36 
Wash.  607,  79  Pac.  286. 

Wisconsin:  Linden  Land  Co.  v. 
Milwaukee  Elec.  Ry.  &  Light  Co., 
107  Wis.  493,  83  N.  W.  851;  State  v. 
Portage  City  Water  Co.,  107  Wis. 
441,  83  N.  W.  697. 

Legislatures  may  delegate  to  mu- 
nicipal assemblies  the  power  of  en- 
acting ordinances  relating  to  local 
matters,  and  such  ordinances,  when 
legally  enacted,  have  the  force  of 
legislative  acts.  New  Orleans  Water 
Works  Co.  v.  New  Orleans,  164  U.  S. 
471,  41  L.  ed.  518,  17  Sup.  Ct.  161. 

"  While  the  lawmaking  power  of 
the  State  is  vested  in  the  legislature, 
yet  it  is  competent  for  the  legislature 
to  delegate  power  to  municipal  cor- 
porations to  pass  ordinances  which 
shall  have  the  same  force,  within 
the  municipality,  as  a  statute,  to 
control  its  municipal  affairs."  Eu- 
reka City  v.  Wilson,  15  Utah,  53,  58, 
48  Pac.  41,  per  Bartch,  J. 

Whether  certain  grants  constitute 
license,  etc.,  or  franchise,  see  §§  47, 
48,  herein. 

303 


§    185  DELEGATION    OF    POWER — MUNICIPAL, 

grant  a  franchise  to  use  city  streets,  as  in  case  of  a  right  to  lay 
pipes  for  gas,  must  be  either  expressly  granted,  or  arise  from 
the  terms  of  the  statute  by  implication  so  direct  and  neces- 
sary as  to  be  clearly  conferred ; 2  a  governmental  function  in  a 
statute  granting  powers  to  a  municipal  corporation  cannot  be 
held  to  have  been  granted  away  by  statutory  provisions  which 
are  doubtful  or  ambiguous.3  So  a  municipal  corporation  can- 
not grant  a  franchise  to  a  street  railroad  corporation  to  con- 
struct and  maintain  a  railroad  in  its  streets  where  neither  its 
charter,  nor  any  statute  of  the  State,  confers  power  in  express 
terms,  to  make  such  a  grant.  The  existence  of  such  a  power 
cannot  be  implied  as  being  necessary  to  the  exercise  of  any 
power  expressly  granted,  or  the  performance  of  any  duty  en- 
joined by  law.4  In  a  case  in  Kansas,  the  construction  of  a 
certain  section  of  the  Bill  of  Rights  was  before  the  court,  that 
section  was  as  follows:  "All  political  power  is  inherent  in  the 
people,  and  all  free  governments  are  founded  upon  their  au- 
thority, and  are  instituted  for  their  equal  protection  and 
benefit.  No  special  privileges  or  immunities  shall  ever  be 
granted  by  the  legislature  which  may  not  be  altered,  revoked 
or  repealed  by  the  same  body;  and  this  power  shall  be  exer- 
cised by  no  other  tribunal  or  agency."  It  was  held  that  this 
section  was  devoted  to  matters  of  a  political  nature,  and  did 
not  inhibit  the  legislature  from  granting  to  municipal  corpora- 
tions the  power  to  permit  railway  companies  to  construct  and 
operate  street  railways  therein.  The  court  said:  "We  think 
the  words  'no  special  privileges  or  immunities'  refer  to  privi- 
leges or  immunities  of  a  political  nature.  The  section  ob- 
viously treats  of  political  powers,  privileges,  and  immunities. 
It  commences:  'all  political  power  is  inherent  in  the  people.' 
It  thus  affirms  the  sovereignty  of  the  people,  that  all  political 
power  proceeds  from  them,  and  upon  the  exercise  of  that 

2  State  v.  Cincinnati  Gas  Co.,  18    180  U.  S.  624,  45  L.  ed.  702,  21  Sup. 
Ohio  St.  262;  Purnell  v.  McLane,  98   Ct.  490. 

Md.  589,  592,  56  Atl.  830,  per  Pearce,  4  State  v.  Mayor,  etc.,  of  New 
J.  York,  3  Duer  (N.  Y.),  119. 

3  Rogers  Park  Water  Co.  v.  Fergus, 

304 


QUASI-MUNICIPAL   AND    SUBORDINATE    AGENCIES       §    185 

power  they  placed  the  limitations  and  restrictions  contained 
in  the  other  part  of  the  section ;  so  that  the  last  sentence  really 
means  that  no  political  privilege,  no  immunity  from  any  po- 
litical duty,  any  duty  from  the  individual  to  the  public,  can 
be  granted  by  the  legislature  which  may  not  be  altered  or  re- 
voked by  that  body;  and  that  no  other  tribunal  or  agency  in 
the  State  shall  have  power  to  grant  any  such  political  privilege 
or  freedom  from  public  duty.  These  are  such  duties  as  those 
of  serving  in  the  militia,  as  jurors,  filling  offices,  etc.  A  fran- 
chise involving  solely  matters  of  pecuniary  interest  or  a  privi- 
lege in  respect  to  property,  can  in  no  just  sense  be  called  a 
political  privilege.  It  touches  no  duty  which  the  citizen  as 
such  owes  to  the  State."  5  In  an  early  case  in  the  United  States 
Supreme  Court  where  the  question  arose  as  to  the  power  of  a 
municipality  to  make  a  contract  giving  to  a  street  railroad 
company  the  right  to  use  the  streets,  Clifford,  J.,  in  his  opinion 
upon  this  question,  and  also  whether  or  not  such  a  contract 
existed,  said :  "  Power  to  make  laws  is  vested  in  the  legislature, 
under  the  constitution  of  the  State,  and  it  is  very  doubtful 
whether  the  legislative  department  can  delegate  to  any  other 
body  or  authority  the  power  to  grant  such  a  franchise,  as  the 
exercise  of  that  power  involves  a  high  trust  created  and  con- 
ferred for  the  benefit  of  those  who  granted  it,  and  as  the  trust 
is  confided  to  the  legislature  it  must  remain  where  it  is  vested 
until  the  constitution  of  the  State  is  changed.  Franchises,  it  is 
conceded,  cannot  as  a  general  rule  be  granted  by  such  a  corpo- 
ration. *  *  *  Contracts  undoubtedly  may  be  made  by 
such  municipalities  to  the  extent  of  the  authority  conferred 
for  that  purpose  by  the  legislature,  but  the  granting  of  a 
franchise  is  not  the  same  thing  as  a  contract,  and  the  exercise 
of  such  a  power  cannot  be  upheld  or  vindicated  as  falling 
within  the  same  rule  as  the  power  to  make  contracts.  *  *  * 
Authority  is  also  conferred  on  municipal  corporations,  by  the 
code  of  that  State,  'to  grant  privileges  in  the  use  and  enjoy- 
ment of  the  streets'  of  the  municipality;  but  it  would  be 

1  Atchison  Street  Ry.  Co.  v.  Mis-  souri  Pacific  Ry.  Co.,  31  Kan.  661, 

606,  3  Pac.  284. 

20  305 


§    186  DELEGATION    OF    POWER — MUNICIPAL, 

a  forced  construction  to  hold  that  the  power  to  grant  such 
a  franchise  for  twenty-five  years  is  included  in  that  provi- 
sion. *  *  *  Special  powers  are  given  to  such  corporations 
to  lay  out,  open,  and  repair  streets  as  a  trust  to  be  held  and 
exercised  for  the  benefit  of  the  public  from  time  to  time,  as 
occasion  may  require,  and  the  general  rule  is,  that  those  powers 
cannot  be  delegated  to  others,  nor  be  effectually  abridged  by 
any  act  of  the  municipal  corporation  without  the  express  au- 
thority of  the  legislature.  Municipal  corporations  are  doubtless 
invested  with  subordinate  legislative  powers  to  be  exercised  in 
the  passage  of  ordinances  for  local  purposes,  connected  with  the 
public  good,  but  they  are  merely  derivative,  and  are  subject  at 
all  times  to  the  legislative  control."  6 

§  186.  Delegation  to  Municipality— Ferries— Bridges- 
Rates  for  Gas,  Water,  Street  Railroads,  etc. — The  want  of  a 
ferry  license  from  a  city  authorized  to  license  and  regulate 
ferries  is  not  cured  by  a  license  issued  by  a  county  court  or 
by  any  other  authority;7  and  where  a  city  corporation  has  an 
exclusive  right  to  grant  such  ferry  franchise,  an  injunction  lies 
to  restrain  persons  operating  a  ferry  under  a  coasting  license, 
from  interference  and  competition  with  such  ferry  franchise.8 
So  a  State  may  vest  in  a  city  jurisdiction  over  the  construc- 
tion, repair  and  use  of  bridges  within  that  city,  although  over 
navigable  waters,  where  such  waters  are  wholly  within  the 
State  and  Congress  has  not  exercised  its  control,  which  it  has 

6  People's    Railroad    v.    Memphis  v.  City  of  Wyoming,   104  111.  App. 

Railroad,  10  Wall.  (77  U.  S.)  38,  51,  538,  541. 

20  L.  ed.  844.  "A  municipal  body,  it  is  under- 

"It  is  doubtful  whether  the  legis-  stood,  possesses  no  power  to  confer 

lature    can    delegate    the    power   to  a  franchise."      Chicago  City  Ry.  v. 

grant  such  a  franchise  at  all."    Den-  People,  73  111.  541,  547,  per  Scott,  J. 

ver  &  Swansea  Ry.  Co.  v.   Denver  7  Cauble    v.    Craig,    94    Mo.    App. 

City  Ry.  Co.,  2  Colo.  673,  682,  per  675,  69  S.  W.  49.     Compare  Malone 

Brazee,  J.  v.  Williams,  118  Tenn.  390,  103  S.  W. 

"A  franchise  must  be  granted  by  398,   under  §  178,  herein;   Guinn  v. 

the  legislature  and  a  municipal  body  Eaves,   117    Tenn.  524,   101    S.  W. 

cannot    confer    such    a    franchise."  1154,  under  §  178,  herein. 

Lasher  v.  People,  183  111.  226,  233,  8  Mayor,  etc.,  of  N.  Y.  v.  Long- 

per  Cartwright,  C.  J.;  quoted  in  Cain  street,  64  How.  Pr.  (N.  Y.)  30. 

306 


QUASI-MUNICIPAL   AND   SUBORDINATE   AGENCIES      §    187 

over  navigable  waters.9  A  city  may  also  be  authorized  to 
construct  a  railroad  at  its  expense  and  to  issue  bonds  therefor, 
and  such  authorization  is  not  unconstitutional.10  Again, 
although  the  legislature  has  power  to  regulate  rates  for  gas, 
water,  etc.,  in  cases  not  covered  by  previous  contracts  or  vested 
rights,  still  it  cannot  constitutionally  delegate  such  power, 
to  authorities  of  a  city  which  is  itself  a  consumer,  either  in 
its  municipal  capacity  or  through  its  inhabitants,  without 
any  provision  for  a  judicial  investigation  of  the  reasonableness 
of  the  rates  fixed  by  such  authorities,  and  an  ordinance  of  the 
city  council  which  attempts  to  fix  rates,  and  to  enforce  their 
acceptance  by  penal  ordinance  is  unauthorized  and  void, 
whether  or  not  there  exists  a  valid  contract.11 

§  187.  To  What  Extent  Franchise  Granted  by  State  Is 
Subject  to  Municipal  Consent  for  Exercise — Power  to 
"  Prevent "  Distinguished  from  Power  to  "  Regulate  "—Con- 
sent to  Use  of  Streets,  etc.12 — The  right  to  use  public  streets 
or  highways  for  the  exercise  of  franchise  rights  granted  by 
the  Federal  government  or  the  State  is  generally  dependent 
upon  the  consent  of  the  municipality  or  other  governmental 
agency  or  upon  the  consent  of  owners  of  abutting  property. 
While,  however,  this  subject  will  be  considered  here  in  connec- 
tion with  the  delegation  of  power,  it  will  be  more  fully  treated 
elsewhere  herein  under  other  headings.  Although  a  telegraph 
or  telephone  or  long  distance  telephone  line  is  an  instrument  of 
interstate  commerce,  it  stands  upon  no  higher  ground  in  re- 
spect to  a  right  of  way  than  does  a  purely  local  company,  and 
it  must  conform  to  the  requirements  of  the  state  statutes  in 

•Escanaba    Co.    v.    Chicago,    107  v.   Mayor,   etc.,  of  New  York,    152 

U.  S.  678,  27  L.  ed.  442,  2  Sup.  Ct.  N.  Y.  257,  46  N.  E.  499,  aff'g  40  N. 

185.    See  §§  127,  128,  145,  herein.  Y.  Supp.  607,  75  N.  Y.  St.  R.  1,  8 

City    authorities    may    order    the  App.  Div.  230. 
construction    of    a    bridge.       Kun-        "  Agua  Pura  Co.  of  Las  Vegas  v. 

dinger  v.  City  of  Saginaw,  132  Mich.  City  of  Las  Vegas   (Cal.,   1900),  60 

395,  8  Det.  Leg.  N.  650,  93  N.  W.  Pac.  208;  act  March  18,  1897,  Laws 

914.  1897,  c.  57,  p.  124. 

10  Sun  Printing  &  Publishing  Assn.        12  See  §  140,  herein. 

307 


§    187  DELEGATION    OF   POWER — MUNICIPAL, 

relation  to  its  occupancy  of  city  streets.  But  authority  may 
be  granted  to  a  city  council  to  grant  a  franchise  right  to  use 
a  city's  streets  for  the  erection  of  the  poles  and  wires  of  tele- 
phone or  telegraph  companies,  even  though  they  have  the 
right  by  way  of  a  license  under  a  statute  to  occupy  such  streets. 
And  where  a  statute  gives  a  right  to  telegraph  and  telephone 
companies  to  use  any  highway  or  road  in  the  State  for  its  wires 
and  poles,  but  requires  that  a  franchise  shall  be  obtained  from 
a  city  or  village  before  its  streets  or  alleys  can  be  so  used,  and 
the  statute  merely  grants  a  revocable  license  or  one  which  may 
be  modified  unless  acted  upon  by  some  work  of  construction, 
a  city  may  exclude  a  company  from  its  streets  when  no  rights 
have  been  acquired  by  such  action  of  the  company,  and  no 
authority  has  been  granted  for  such  occupancy  by  the  city 
council.13  Where  the  statute  under  which  a  telephone  com- 
pany is  organized  does  not  require  the  consent  of  the  munici- 
pality to  enable  it  to  construct  its  lines,  as  in  a  case  where  the 
business  carried  on  by  such  corporation  is  not  purely  local, 
but  extends  over  and  outside  of  the  State,  the  municipal  power 
to  regulate  and  control  the  use  of  its  streets  is  limited  to  a 
valid  exercise  of  its  police  power  inherent  in  it  to  protect  the 
public  from  unnecessary  obstructions,  inconveniences  and 
dangers,  and  to  the  determination  of  the  manner  in  which  such 
company  may  erect  its  poles  and  maintain  its  wires;  and  it 
cannot  impose  other  conditions,  as  such  power  rests  alone  in 
the  charter  making  power,  which  is  the  legislature.14    So,  where 

13  Northwestern  Teleph.  Exchange  across,  or  under  any  public  places, 
Co.  v.  City  of  St.  Charles  (C.  C),  154  streets,  and  highways,  and  across  or 
Fed.  386.  under  any  of  the  waters  of  this  State, 

14  Michigan  Telephone  Co.  v.  City  with  all  necessary  erections  and  fix- 
of  Benton  Harbor,  121  Mich.  512,  80  tures  therefor;  provided,  that  the 
N.  W.  386,  7  Am.  Elec.  Cas.  9.  The  same  shall  not  injuriously  interfere 
statute  providing  for  telephone  and  with  other  public  uses  of  the  said 
messenger-service  companies  was  as  places,  streets  and  highways,  and  the 
follows:  "Every  such  corporation  navigation  of  said  waters;  to  con- 
shall  have  power  to  construct  and  struct,  provide  and  furnish  instru- 
maintain  lines  of  wire  or  other  ma-  ments,  devices  and  facilities  for  use 
terial,  for  use  in  the  transmission  in  the  transmission  of  such  messages; 
of  telephonic  messages  along,   over,  and     to     construct,     maintain     and 

308 


QUASI-MUNICIPAL   AND   SUBORDINATE   AGENCIES      §    187 

a  telephone  company  has  by  grant  of  the  legislature  a  franchise 
to  lay  or  erect  its  wires  in  the  streets  of  a  municipality,  such 
city  has  the  power  of  reasonable  police  control  and  regulation 
over  the  exercise  of  such  franchise.  This  power  of  regulation 
is,  however,  limited  and  includes  the  designation  of  streets 
upon  which  it  is  deemed  consistent  with  the  public  good,  that 
such  wires  should  be  placed  or  excluded,  also  the  method  of 
construction  with  reference  to  the  public  welfare.  But  a 
company  with  this  franchise,  so  subject  to  police  regulation 
only,  has  a  right,  and  the  municipality  owes  a  duty,  upon 
proper  application  to  prescribe  restrictions  and  regulations 
such  as  it  deems  necessary,  although  its  discretion  is  legisla- 
tive and  limited  to  what  is  reasonably  and  consistent  with  the 
intent  of  the  general  law  granting  the  franchise,  and  the  city 
cannot  practically  exclude  the  company  by  its  regulations.15 
Again,  the  specific  duty  of  exercising  the  legislative  discretion 
to  the  end  of  promoting  reasonable  regulations  under  the 
police  power  of  a  city  for  the  use  of  the  city  streets,  upon  ap- 
plication made  by  a  telephone  company  possessing  a  franchise 
from  the  legislature  giving  a  right  to  lay  or  erect  its  wires  in 
the  city  streets,  is  vested  primarily  in  the  city's  common  coun- 
cil, where  no  provision  of  law  or  charter  gives  to  any  other 
officer,  board  or  commission  of  the  city  any  power  until  after 
such  council  acts.16     A  street  railway  company  derives  no 

operate  telephone  exchanges  and  was  also  engaged  in  interstate  corn- 
stations,    and   generally   to    conduct  merce. 

and  carry  on  the  business  of  provid-  Police     -power,     see     §§  149,     184, 

ing  and  supervising  communication  herein,  also  other  sections  throughout 

by  telephone,  and  also  the  business  of  this  treatise. 

furnishing  messenger  service  in  cities  15  State  ex  rel.  Wisconsin  Metropo- 

and   towns.''     The   statute  also  re-  lis  Teleph.  Co.  v.  City  of  Milwaukee 

quired  every  such  company  to  supply  (Wis.,    1907),    113    N.    W.    40,    per 

the  public  with  telephones  and  tele-  Dodge,  J. 

phonic  service,  and  to  operate  a  tele-  As  to  Post  Roads  Act  and  hostile 

phone  exchange,  and  to  receive  and  legislation,  see  Joyce  on  Electric  Law 

transmit  messages  without  discrimi-  (2d  ed.),  §§62-67. 

nation,  upon  payment  or  tender  of  18  State  ex  rel.  Wisconsin  Metropo- 

the  usual  or  customary  charges.     3  lis  Teleph.  Co.  v.  City  of  Milwaukee 

How.    Ann.    Stat.    §§  3718rf,    3718/;  (Wis.,  1907),  113  N.  W.  40. 
acts  1883,  §  4,  p.  131.     The  company 

300 


§    1S7  DELEGATION    OF    POWER — MUNICIPAL, 

power  to  construct  a  railway  from  any  ordinance  of  a  city 
where  all  its  power  and  authority  is  derived  from  the  State 
and  is  conferred  by  its  charter,  and  such  city  has  delegated 
to  it  only  the  power  to  say  in  what  manner  and  upon  wThat 
conditions  the  company  may  exercise  the  franchises  conferred 
by  the  State.17  Under  the  New  Jersey  system  of  laws,  corpo- 
rate franchises  are  the  subject  of  legislative  grant  exclusively, 
although  the  legislature  may  make  the  right  to  exercise  them 
within  the  limits  of  a  municipality  dependent  upon  the  con- 
sent of  such  municipality,  and  where  a  statute  declares  that 
its  provisions  shall  not  apply  to  corporations  which  do  not 
and  cannot  exercise  "municipal  franchises"  those  corpora- 
tions will  be  held  to  have  been  intended  whose  right  to  exer- 
cise their  franchises  depends  upon  municipal  consent.18  In 
New  York  all  of  the  corporations  for  which  the  transportation 
corporations  law  provides,  such  as  pipe  line,  gas  and  electric 
light  companies,  waterworks  and  roads  and  bridge  corpora- 
tions, except  telegraph  and  telephone  corporations,  are  re- 
quired by  the  provisions  of  that  law  to  obtain  the  consent  of 
the  local  authorities  to  occupy  the  streets  and  highways,  and 
this  applies  also  to  steam  and  street  railroad  corporations. 
But  no  such  restriction  or  limitation  appears  in  the  transporta- 
tion corporations  law  as  regards  the  right  of  telegraph  or  tele- 
phone companies  to  use  the  public  roads,  streets,  highways 
and  waters  of  the  State.  Many,  however,  if  not  all,  of  the 
charters  of  cities  and  villages,  as  well  as  the  general  laws  do 
to  some  extent  regulate,  restrict  and  limit  the  right  of  such 
corporations  to  use  the  public  streets  and  carry  on  their  busi- 
ness within  the  municipality;  and  in  one  instance,  at  least, 
it  is  provided  that  the  common  council  of  the  city  may  prevent 
the  stringing  or  setting  of  telegraph  or  telephone  poles  or  wires 

17  Chicago  City  Ry.  v.  People,  73  declares  that:  "This  act  shall  not  be 
111.  541,  549.  construed  to  apply  to  any  corpora- 

18  State  Board  of  Assessors  v.  tion  which  has  not  hitherto,  or  may 
Plainfield  Water  Supply  Co.,  67  not  hereafter,  exercise  any  municipal 
N.  J.  L.  357,  52  At!.  230;  Laws  1900,  franchise."  The  relators  sought  to 
chap.  195  (Pamph.  L.,  p.  502),  §  8,  compel  a  water  company  to  furnish 
provides  as  to  a  franchise  tax  and  statements  showing  gross  receipts. 

310 


QUASI-MUNICIPAL   AND   SUBORDINATE   AGENCIES      §    187 

in  the  city,  and  that  charter  is  not  expressly  or  impliedly  re- 
pealed by  the  transportation  corporations  law  and  under  such 
power  to  "prevent"  the  city  may  bind  a  telephone  company 
by  exacting  a  compensation  as  a  condition  to  granting  a  fran- 
chise even  though  the  power  alone  "to  regulate"  will  not 
authorize  such  exaction,  and  the  acceptance  of  the  franchise 
with  the  condition  binds  the  accepting  company.19  But  where 
a  city  has  no  power  to  "prevent"  a  telephone  company  or- 
ganized under  the  transportation  corporations  law  from  using 
the  city  streets  as  provided  by  that  law,  still  it  may  be  em- 
powered by  statute  to  control  the  erection,  construction, 
laying,  stringing,  maintaining  and  removing  of  all  wires, 
cables,  poles,  conduits  and  subways  therein.  And,  although 
a  company's  franchise  to  use  the  public  highways  of  the  State 
may  come  directly  from  the  State  under  the  transportation 
corporations  law  independent  of  any  grant  from  the  munici- 
pality, yet  if  the  municipality  has  granted  a  franchise  to  use 
the  streets  of  the  city  and  also  additional  rights  to  use  public 
property  and  places,  such  as  parks,  squares  and  aqueducts, 
such  additional  grant  is  a  good  consideration  for  an  agreement 
with  the  city  whereby  maximum  rates  for  services  to  citizens 
are  fixed,  and  the  grantee  is  estopped  to  repudiate  the  agree- 
ment on  the  ground  of  want  of  authority  in  the  city  to  make 
it.  And  the  company  has  no  statutory  authority  to  use  such 
public  places  for  its  conduits  and  .subways  without  the  city's 
consent,  without  regard  to  whether  or  not  it  has  a  statutory 
right  to  use  the  public  streets  and  highways.20  Under  the 
well-settled  law  of  Tennessee  the  power  to  grant  to  a  public 
corporation  a  right  of  way  for  the  operation  of  public  railroads, 
commercial  or  si  net,  on  or  over  a  particular  public  highway 
or  street,  resides  primarily  in  the  state  legislature,  but  it  may 
be  delegated  to  municipal  governments.  Restrictions,  however, 
may  be  imposed  by  a  constitutional  provision,  requiring  the 

19  City    of    Jamestown    v.    Home  20  Rochester  Telephone  Co.  v.  Ross, 

Teleph.  Co.,  125  X.  Y.  App.  Div.  1;  125  App.  Div.  1,  Williams,  J.,  dis- 

Rochester  Teleph.  Co.  v.  Ross,  125  senting. 
App.  Div.  76,  80,  per  Kruse,  J. 

311 


§    187  DELEGATION    OF    POWER — MUNICIPAL, 

legislature  to  provide  for  the  organization  of  corporations  by 
general  law  only  which  might  prevent  the  granting  of  a  par- 
ticular right  of  way  to  a  particular  corporation.21  Under  a 
Federal  decision  it  is  declared  that:  " While  'it  is  essential  to 
the  character  of  a  franchise,'  as  was  held  in  Bank  of  Augusta  v. 
Earle,22  '  that  it  should  be  a  grant  from  the  sovereign  authority 
and  in  this  country  no  franchise  can  be  held  which  is  not  de- 
rived from  a  law  of  the  State,'  and  while  the  right  to  the  use 
of  the  public  streets  of  a  city  by  a  gas  company  or  water  com- 
pany, for  the  purpose  of  laying  down  its  pipes,  is  generally 
considered  to  be  such  a  franchise,  it  is  well  settled  that  the 
legislature  of  a  State  may  confer  the  power  to  grant  such  fran- 
chises upon  municipal  corporations;  though  when  so  granted, 
they  are,  nevertheless,  to  be  regarded  as  derived  from  the  State. 
The  question  here,  therefore,  is  not  whether  the  franchises  of 
the  Oconto  Water  Company  were  obtained  from  the  State; 
they  necessarily  came  directly  or  indirectly  from  that  source. 
It  is  whether  or  not  the  common  council  of  Oconto  had  been 
given  the  power  to  grant  such  franchises,  and  in  this  instance, 
did  grant  those  named  in  its  ordinance.  Without  that  ordi- 
nance, it  is  clear  the  water  company  could  not  lawfully  have 
laid  its  pipes  in  the  streets  of  the  city,  nor  have  put  into  prac- 
tical effect  its  'franchise  to  operate  the  plant,' — if  it  can  be  said 
to  have  had  such  franchise  merely  by  act  of  incorporation,  and 
before  the  ordinance  was  passed.  The  city  of  Oconto,  by  its 
own  charter,  had  the  power,  and  therefore,  was  under  the  duty 
of  caring  for  the  public  health.  That  power  it  could  employ 
in  any  reasonable  way;  if  it  chose,  for  instance,  by  contracting 
for  a  water  supply  through  pipes  laid  in  the  streets.  The 
making  of  such  a  contract  would,  of  necessity,  carry  with  it 
the  right,  on  the  part  of  the  contractor,  to  lay  the  pipes  and 
to  operate  the  plant.  Such  a  right  is  a  franchise,  and  the  mak- 
ing of  the  contract  operating  by  necessary  implication  as  a 
grant  of  the  privilege  or  franchise,  the  power  given  to  make 

21  Mayor,    etc.,    of    Knoxville    v.        22  13  Pet.  (38  U.  S.)  519,  595,  10 
Africa,  77  Fed.  501,  507,  23  C.  C.  A.    L.  ed.  274,  311. 
252,  47  U.  S.  App.  725. 

312 


QUASI-MUNICIPAL   AND    SUBORDINATE    AGENCIES       §    188 

the  contract  was  power  to  grant  the  franchise.  But,  besides 
the  power  to  provide  for  the  health  of  its  inhabitants,  the  city 
of  Oconto  had  the  express  power  *  *  *  'to  provide  for 
the  erection  of  waterworks  for  the  supply  of  water  to  the 
inhabitants  of  the  city.'  *  *  *  The  authority  extended 
to  any  reasonable  method;  and  it  follows  that,  before  the 
Oconto  Water  Company  was  incorporated,  the  city  of  Oconto, 
by  its  own  charter,  had  power,  from  the  State,  to  grant  fran- 
chises like  those  in  question  to  any  person  or  body  capable  of 
receiving  them.  By  its  act  of  incorporation  the  Oconto  Wa- 
ter Company  came  into  being,  endowed,  not  with  the  right  to 
establish  and  operate  waterworks  in  Oconto,  but  with  ca- 
pacity to  receive  and  exercise  that  right  or  privilege  upon  such 
terms  as  the  city  should  consent  to  grant.  But,  though  capable 
of  receiving,  it  could  acquire  no  complete  or  effective  right  or 
franchise  without  the  consent,  and  there  is  no  impropriety, 
legal  or  verbal,  without  the  grant  of  the  city.  The  ultimate 
source  of  such  franchises  in  all  cases  being  the  State,  the 
difference  between  a  municipal  power  to  grant  them  and  au- 
thority to  contract  for  or  to  consent  to  the  exercise  of  them  is 
a  difference  of  words  rather  than  of  substance.  *  *  *  So, 
here,  not  by  reason  of  a  constitutional  provision,  but  by  stat- 
ute, the  ultimate  efficient  right  could  be  acquired  only  by  act 
and  consent  of  the  city  authorities,  which  they  could  grant  or 
refuse  at  their  pleasure."  2* 

§  188.  Delegation  to  Municipal   or  City  Council — Street 
Railways — Ferries — Extent  of  Power  of  City  Council. — The 

legislature  may  by  its  act  incorporating  a  city  delegate  to  the 
city  council  authority  to  pass  an  ordinance  granting  to  a  corpo- 
ration or  to  an  individual  a  right  to  construct  and  operate  a 
street  railway  in  the  streets  of  such  city.24    And  it  is  held  that 

28  Andrews   v.    National   Foundry  M  Watson  v.  Fairmont  &  Suburban 

&  Pipe  Works,  Lim.,  61   Fed.  782,  Ry.  Co.,  49  W.  Va.  528,  39  S.  E.  193. 

787-789,  10  C.  C.  A.  60,  por  Woods,  The  legislative  act  incorporating  the 

Cir.  J.;  s.  c,  73  Fed.  516,  19  C.  C.  A.  city   provided  that,   "the  council  of 

548,  77  Fed.  774,  23  C.  C.  A.  454,  said  city  shall  have  power  to  grant 

113  Fed.  793,  794,  183  U.  S.  216,  225.  and   regulate  all  franchises  in,  over 

313 


$    188  DELEGATION   OF    POWER — MUNICIPAL, 

authority  is  vested  in  a  city  council  to  grant  the  franchise  to 
construct  such  railroad  unless  prohibited  by  statutory  restric- 
tions.25 The  action  of  the  common  council  of  Buffalo,  New 
York,  under  its  revised  charter  of  1891, 26  in  consenting  to  the 
construction  of  a  railroad  in  its  streets  is  not  an  administrative 
but  a  legislative  act.27  So  the  city  council,  of  a  city  of  the 
fourth  class  in  Missouri,  is  to  all  intents  and  purposes  a  legis- 
lative body,  and  when  acting  within  the  limits  prescribed  by 
its  charter  and  the  constitution  and  laws  of  the  State,  its  acts 
are  as  valid  and  binding  as  an  act  of  the  legislature  of  the 
State.28  Again,  the  provision  of  the  Rochester  city  charter  of 
1894,  which  authorizes  the  common  council  to  control  and 
regulate  the  erection  of  poles,  etc.,  in  the  streets  and  public 
places,  does  not  infringe  upon  the  legislative  power  of  the  State 
to  grant  a  franchise  in  the  first  instance,  for  the  use  of  the 
streets  for  such  purpose,  but  operates  merely  as  a  grant  of  em- 
powering such  city  to  regulate  the  manner  of  exercise  of  the 
franchise.29  Again,  the  city  council  of  Montreal  is  held  to  have 
power  to  authorize  a  temporary  electric  railway  to  be  con- 
structed in  the  city's  streets  for  the  benefit  of  persons  visiting 
an  exhibition,  and  such  authority  may  be  granted  by  resolution 
at  least  when  ratified  by  a  subsequent  by-law.30  No  authority 
is  given  in  the  constitution  of  Tennessee  for  the  delegation  to 
a  municipal  council  of  the  exclusive  power  to  license  ferries 
and  to  regulate  the  same  and  to  fix  charges  and  fees  therefor. 

and  under  the  alleys  and  public  ways        28  Lebanon      Light      &     Magnetic 

of  said  city  under  such  restrictions  Water  Co.  v.  City  of  Lebanon,  163 

as  shall  be  provided  by  ordinance,  Mo.  254,  260,  63  S.  W.  811,  per  Bur- 

but  no  exclusive   franchise  shall  be  gess,   J.       See  also   Barber  Asphalt 

granted  to  any  individual  or  corpora-  Paving  Co.   v.  French,  158  Mo.  534, 

tion."  58  S.  W.  934. 

25  Electric  City  Ry.  Co.  v.  City  of        20  Barhite  v.  Home  Telephone  Co., 

Niagara  Falls,  95  N.  Y.  Supp.  73,  48  63  N.  Y.  Supp.  659,  50  App.  Div.  417. 

Misc.  91.  See  Joyce  on  Electric  Law  (2d  ed.), 

28  Laws  1891,  c.  105,  tit.  2,  subc.  1,  §§  186a,  355a,  474. 
§  5.  30  Bell  Teleph.  Co.  v.  Montreal  St. 

27  Kittinger  v.  Buffalo  Traction  Co.,  R.  Co.,  Rap.  Jud.  Quebec,  6  B.  R. 

160  N.  Y.  377,  54  N.  E.  1081,  aff'g  49  223. 
N.  Y.  Supp.  713,  25  App.  Div.  329. 

314 


QUASI-MUNICIPAL   AND    SUBORDINATE   AGENCIES      §    189 

Such  a  delegation  of  power  is  unconstitutional  and  void,  where 
the  constitution  provides  that:  "The  legislature  shall  have  the 
right  to  vest  such  powers  in  the  courts  of  justice,  with  regard 
to  private  and  local  affairs  as  may  be  expedient."  31  Although 
a  city  council  is  authorized  to  grant  franchises  to  railroad 
companies  to  construct  and  maintain  tracks  in  the  streets, 
■  yet,  to  be  valid  and  effectual,  the  power  or  authority  vested 
in  the  city  must  be  exercised  in  accordance  with  the  formalities 
prescribed  by  the  statutes  conferring  such  power  upon  the 
city.32 

§  189.  Right  to  Amend  Municipal  Charter,  as  to  Grant  of 
Franchises,  not  a  Delegation  of  Legislative  Power  to  Peo- 
ple.— Where  the  legislative  powers  of  cities  is  vested  by 
statute  in  the  mayor  and  city  council,  a  proposed  charter 
amendment  is  not  unconstitutional  as  a  delegation  of  legislative 
power  to  the  people;  although  such  amendment  provides  that 
whenever  any  ordinance  granting  or  amending  any  franchise 
for  gas,  electric  light,  water,  telephone  or  telegraph  purposes, 
shall  have  been  introduced,  then  the  council  shall,  upon  pre- 
sentation of  a  petition  signed  by  the  electors  of  the  city  equal 
in  number  to  fifteen  per  cent  of  the  entire  vote  cast  at  the 
last  municipal  election,  submit  to  a  vote  of  the  people  the 
question  of  the  adoption  of  the  franchise,  and  if  a  majority  of 
the  qualified  voters  voting  thereon  at  the  election  shall  ap- 
prove the  ordinance,  it  shall  take  effect,  but  otherwise  it  shall 
be  defeated.  In  such  case  the  powers  of  the  mayor  and  coun- 
cil are  only  those  provided  by  charter,  and  the  people  have  a 
right  to  reserve  to  themselves  by  such  proposed  amendment 
a  part  of  the  powers  so  conferred.33 

31  Malone  v.  Williams,  118  Tenn.  State,  however,  there  is  a  different 

390,   103  S.  W.  798;  the  court,   per  rule.     No  authority  is  given  in   the 

Neil,  J.,  sai'l:  "  For  the  defendants  it  constitution  for  the  delegation  of  such 

is  insisted  that  it  is  customary  every-  rights    to    municipal    corporations." 

where  to  grant  such  rights  to  munici-  32  Cereghino  v.  Oregon  Short  Line 

pal  corporations.     Such  seems  to  be  Rd.  Co.,  26  Utah,  467,  99  Am.   St. 

the  rule  in    Kngland  and  in  some  of  Rep.  843. 

our  States.     1  Dillon  on  Munic.  Corp.  '    llm.lman  v.  Boyd,  42  Wash.  17, 

(3d  ed.)  §§  111,    115,    L16.     In   this  84  Pac.  609. 

315 


§§    190,    191       DELEGATION    OF    POWER — MUNICIPAL, 

§  190.  Delegation  to  Board  of  Rapid  Transit  Railroad 
Commissioners — Subways — City  Ownership  and  Obliga- 
tions— Change  of  Construction  Plans. — A  rapid  transit  board 
may  be  authorized  by  statute  to  enter  into  contracts  with 
any  person,  corporation  or  firm  best  qualified  in  the  board's 
opinion  to  carry  out  and  fulfill  such  contract,  and  such  enact- 
ment is  not  unconstitutional  as  denying  the  equal  protection 
of  the  laws  to  other  persons  intending  to  construct  a  road  on 
the  same  line.34  Where  a  city,  by  its  board  of  rapid  transit 
commissioners,  acting  in  pursuance  of  the  law  conferred  upon 
it,  entered  into  a  contract  for  the  construction  and  operation 
of  a  rapid  transit  railroad;  said  road  and  tunnels,  under  the 
statutes  and  contract,  were  to  be  paid  for  by  the  city  and 
be  its  property,  and  the  equipment  was  to  be  paid  for  by  the 
contractor  and  be  his  property;  the  board  was  also  authorized 
to  make  such  changes  as  were  deemed  necessary  and  deter- 
mined that  electricity  should  be  the  motive  power  used,  thereby 
necessitating  additional  excavation;  and  it  was  held  that  the 
city  should  pay  therefor,  and  that  the  property  so  changed 
should  belong  to  it.35 

§  191.  Power  of  Electrical  Commission — Electrical  Con- 
duits— Board  of  Commissioners  of  Electrical  Subways — 
Board  of  Electrical  Control. — Where  an  electrical  commission 
is  established  under  an  ordinance  of  a  city,  which  has  power 
under  its  charter  to  grant  franchises  or  rights  in  the  city 
streets,  and  such  commission  is  vested  with  power  to  construct, 
regulate  and  maintain  electrical  conduits  in  such  city,  coupled 
with  authority  to  rent  space  therein,  under  certain  conditions, 
it  may  refuse  a  permit  for  the  use  of  such  conduits  to  a  person 
who  has  not  acquired  a  franchise  to  use  the  streets  and  may 

34  Underground  Rd.  of  the  City  of  mission    of    New    York,    see    §  166, 

New  York  v.   New  York  City,   116  herein. 

Fed.  952,  aff'd  193  U.  S.  416,  48  L.  ed.  35  McDonald,  In  re,  80  N.  Y.  Supp. 

733,  24  Sup.  Ct.  494.  536,  80  App.  Div.  210,  aff'd  175  N.  Y. 

See  §§  167-170,  herein.  470  (mem.).     See  §  166,  herein. 

Delegation  to  Public  Service  Com- 

316 


QUASI-MUNICIPAL   AND    SUBORDINATE    AGENCIES       §    191 

require  a  compliance  with  the  provisions  of  the  law.36  An- 
other subordinate  body  was  created  in  1885,  and  was  known 
as  the  board  of  commissioners  of  electrical  subways  in  and  for 
the  city  of  New  York,37  and  in  1887,  the  board  of  electrical  con- 
trol for  said  city  was  created  and  it  was  held  to  have  full  dis- 
cretionary power  in  reference  to  when,  where  and  in  what 
manner  wires  should  be  placed  underground ; 38  and  it  is  also 
declared  that  from  the  proper  construction  it  would  appear 
that  a  discretionary  power  was  intended  by  the  enactment 
to  be  vested  in  the  board  and  that  such  power  was  to  be  legiti- 
mately and  fairly  exercised.39 

38  Purnell  v.  McLane,  98  Md.  589,    to  consent — Subways.     Compare  Peo- 
56  Atl.  830,  8  Am.  Elec.  Cas.  55.  pie  v.  Consolidated  Teleg.  &  Elect ri- 

Commission  of  gas  and  electricity,  cal  Subway  Co.  (West  Side  Electric 
see  §  160,  herein.  Co.  v.  Consolidated  Teleph.  Co.),  96 
Delegation  to  Public  Service  Commis-  N.  Y.  Supp.  609,  110  App.  Div.  171, 
sion  of  New  York,  see  §  166,  herein.  aff'd  187  N.  Y.  58,  79  N.  E.  892,  where 
Delegation  to  Railroad  Commission  the  Laws  of  1848,  p.  48,  c.  37;  Laws 
— Public    Utility  Law  of  Wisconsin,  1879,  p.  562,  c.  512,  as  to  occupation 
see  §  168,  herein.  of  streets  by  gas  and  electrical  corn- 
s' See  People  v.  Ellison,  101  N.  Y.  panies    with    consent    of    municipal 
Supp.  441,  51  Misc.  413,  aff'd  101  N.  authorities;  Laws  of  1887,  p.  928,  ch. 
Y.  Supp.  55,  115  App.  Div.  254;  Laws  716,  transferring  to  board  of  electri- 
N.   Y.,   1885,   chap.   499;   People  ex  cal    control    the    powers    theretofore 
rel.  N.  Y.  Elect.  Lines  Co.  v.  Squire,  vested  in  commissioners  of  electrical 
107  N.  Y.  593.  subways  under  Laws  of  1885,  p.  852, 
"United   States   Illuminating  Co.  c.  499;  Laws  of  1890,  p.  1146,  c.  566, 
v.  Hess,  3  N.  Y.  Supp.  777,  19  N.  Y.  subdv.    1.     Transportation    corpora- 
St.   R.   883,   2   Am.   Elec.   Cas.   187;  tions  Law,  authorizing  use  of  stmts 
Laws   1887,   chap.   716,   Am'd   Laws  over  and  under  the  surface  by  elec- 
1890,  chap.  550.  trical   corporations   with   consent    of 

39  Higgins  v.  Manhattan  Elec.  L.  city  authorities,  and  the  New  York 
Co.  (Sup.  Ct.  Chambers,  March,  1889),  city  charter  prior  to  1897  are  all  con- 
3  Am.  Elec.  Cas,  note  167,  per  Law-  sidered,  and  it  is  held  that  the  right 
rence,  J.  See  American  Rapid  Tran-  to  lay  such  wires  in  conduits  or  a  sub- 
sit  Co.  v.  Hess,  125  N.  Y.  641,  36  N.  way  was  dependant  upon  consenl 
Y.  St.  R.  252,  21  Am.  St.  Rep.  764,  of  board  of  aldermen  and  not  upon 
26  N.  E.  919,  39  Am.  &  Eng.  Corp.  thai  of  the  board  of  electrical  control, 
Cas.  526,  3  Am.  Elec.  Cas.  142.  alt 'g  See  Laws  1902,  c.  596,  amending 
58  Hun,  610,  35  N.  Y.  St.  R.  606,  12  Laws  1890,  c.  566,  §  61,  subdv.  I 
N.  Y.  Supp.  530;  Joyce  on  Electric  Sec  Laws  1905,  c.  210,  amending 
Law  (2d  ed.),  §§  424,  425.  Laws   1890,    c.    665,  §  82,  subdv.  2; 

Board  of  aldermen  and   not  board    Laws    1906,  c.  455,  amending   Laws 
of  electrical  control  is  proper  authority    I  890,  c  566,  §  82,  subdv.  2. 

'Ml 


§    192  DELEGATION    OF    POWER — MUNICIPAL, 

§  192.  Delegation  of  Power — Grant  of  Franchises — 
Board  of  Estimate  and  Apportionment  of  New  York — 
Transfer  of  Power  from  Another  Board — Cumulative  Vot- 
ing.— It  is  held  in  a  New  York  case  that  there  is  no  restric- 
tion upon  the  power  of  the  legislature  to  take  away  from  one 
body  of  local  authorities  the  power  to  grant  franchises  and 
to  transfer  the  same  to  some  other  city,  board  or  department, 
such  as  the  board  of  estimate  and  apportionment,  as  such 
authorities  have  no  vested  right  to  the  continuance  of  any 
public  powers  or  duties  conferred  upon  them,  and  that  what 
the  legislature  can  grant  it  can  transfer  and  such  laws  are  not 
unconstitutional.  It  is  held  that  the  system  of  cumulative 
voting  in  the  board  of  estimate  and  apportionment,  authorized 
by  the  city  charter,  does  not  prevent  the  legislature  from  au- 
thorizing it  to  grant  franchises  because  a  minority  of  the  in- 
dividuals composing  the  board,  by  a  combination  of  votes, 
may  be  able  to  determine  a  question  before  it;  since  there  is 
no  constitutional  limitation  upon  providing  for  such  a  system 
of  voting  in  the  board,  it  being  a  question  of  policy  and  not 
one  of  power,  and  under  the  circumstances  attendant  upon 
creating  Greater  New  York  City,  it  would  be  neither  fair  nor 
just  to  permit  each  member  to  vote  per  capita.40  This  case 
is  cited  in  a  later  case  in  the  same  State  41  upon  the  question 

40  Wilcox  v.  McClellan,  185  N.  Y.  vision  thereof,  or  appointed  by  such 

9,  10,  77  N.  E.  986,  aff  'g  97  N.  Y.  authorities  thereof,  as  the  Legislature 

Supp.  311,  110  App.  Div.  378,  aff'g  shall    designate     for    that    purpose. 

95  N.  Y.  Supp.    941,  47  Misc.  465;  *     *     *"     (art.   8,  §1.)     "Corpora- 

Pettit  v.  McClellan,  97  N.  Y.  Supp.  tions  shall  be  formed  under  general 

320,  110  App.  Div.  390;  Laws  1905,  laws,  but  shall  not  be  created  by  spe- 

pp.    1533,   1548,   cc.   629-631;  Laws  cial   act,  except   for  municipal   pur- 

1873,    p.  517,  c.  335,  §  112;   Greater  poses,    and    in    cases  where,  in   the 

New  York  Charter,   §§  48,  74;  Laws  judgment  of  the  Legislature,  the  ob- 

1901,   pp.   26,  38,   c.  466,  construed  jects  of   the   corporation   cannot  be 

with  Const.,  art.  10,  §  2,  art.  8,  §  1,  attained    under    general   laws.     All 

which    provide   that   (art.     10,    §  2)  general  laws  and  special  acts  passed 

"  *     *    *    All  city    *     *     *    officers,  pursuant  to  this  section  may  be  al- 

whose  election  or  appointment  is  not  tered  from  time  to  time  or  repealed." 
provided    for    by   this   constitution,        41  Reis  v.  City  of  New  York,  188 

shall  be    elected   by  the   electors  of  N.  Y.  58,  67,  80  N.  E.  573,  aff'g  99  N. 

such  cities.     *     *     *     or  of  some  di-  Y.  Supp.  291,  113  App.  Div.  264. 

318 


QUASI-xMUNICIPAL   AND    SUBORDINATE    AGENCIES      §§    193,   194 

of  the  powers  of  the  board  of  estimate  and  apportionment: 
"a  body  which  has  been  deemed  by  the  legislature  sufficiently 
representative,  responsible,  and  trustworthy  to  exercise  the 
power  of  granting  or  withholding  street  railroad  franchises 
within  the  limits  of  the  municipality  in  place  and  instead  of 
the  board  of  aldermen."  42 

§  193.  Dock  Department  no  Power  to  Grant  Franchises — 
Street  Railway. — A  dock  department  of  a  city  has  no  power 
to  grant  franchises,  and  its  consent  or  resolution  permitting 
the  construction  of  a  street  railway  is  not  the  grant  of  a  fran- 
chise.43 

§  194.  Delegation  to  County  Commissioners — Ferries — 
Bridges — Use  of  Streets — Permits — Gas  and  Electricity — 
Street    Railroads — Repaying — Removal    of    Poles,    etc. — A 

ferry  may  be  established  by  county  commissioners,  and  the 
petitioner  is  given  a  vested  right  subject  only  to  reversal  or 
modification  by  the  Superior  Court.44  If  a  statute  grants  a 
ferry  franchise  and  makes  it  unlawful  to  establish  any  other 
ferry  within  a  specified  distance,  such  enactment  operates  as  a 
limitation  upon  the  general  power  conferred  upon  the  county 
commissioners  by  code  to  "appoint  and  settle  ferries,"  and 
precludes  them  from  authorizing  a  ferry  within  the  prohibited 
distance.  And  a  constitutional  provision  giving  the  super- 
vision and  control  of  roads,  bridges,  etc.,  to  such  commissioners, 
does  not  deprive  the  general  assembly  of  the  power  to  enact 
a  statute  authorizing  the  establishment  of  a  public  ferry  at  a 
certain  point  for  a  certain  term  of  years  and  also  providing 
that  it  shall  be  unlawful  for  any  person  to  establish  another 
ferry  within  a  specified  distance  of  said  ferry.45     So  county 

"Laws  1905,  chaps.  629-631.  "Robinson   v.    Lamb,    129   N.   C. 

"Central    Crosstown    Ry.   Co.    v.  16,  39   S.   E.    579.      See   Wilson   v. 

Metropolitan  St.  Ry.  Co.,  44  N.  Y.  Gabler,   11   S.   Dak.  206,  76  N.    W 

Supp.   752,    16   App.    Div.  229.     See  921. 

also  Hart  v.  Mayor,  etc.,  of  New  York,        <s  Spease  Ferry,  In  re,   138  N.  C. 

44  N.  Y.  Supp.  767,  16  App.  Div.  227.  210,  50  S.  E.  625. 

319 


§    195  DELEGATION    OF    POWER — MUNICIPAL, 

commissioners  have  no  power  to  grant  a  ferry  franchise  to 
establish  a  ferry  between  points  located  outside  of  the  county 
even  though  one  of  said  points  is  attached  to  the  county  for 
judicial  purposes.46  Such  commissioners  may  also  be  author- 
ized to  appropriate  money  for  the  purpose  of  constructing 
bridges  on  public  highways  or  town  roads.47  If  a  gas  company 
is  authorized  by  the  law  of  its  creation  to  lay  pipes  and  mains 
under  the  streets  and  roads  of  any  county,  but  it  is  subject  to 
any  law  that  may  be  passed  by  the  county  commissioners  for 
the  filling  up  and  repaving  of  any  street  under  which  the  pipes 
may  be  laid;  still  it  is  not  bound  by  a  regulation  of  the  com- 
missioners providing  that  no  water  pipes  or  mains  shall  be 
laid  within  the  limits  of  any  of  the  highways  of  the  county, 
and  prohibiting  the  digging  up  of  any  of  said  highways  for  said 
purpose,  without  a  permit,  and  also  includes  electric  light, 
telegraph  and  telephone  poles  and  wires,  electric,  steam  and 
other  railway  tracks  within  the  requirement  as  to  a  permit, 
for  such  regulation  does  not  include  gas  mains  or  pipes.  And 
this  is  so  even  though  such  commissioners  may  make  reasonable 
regulations  before  such  gas  pipes  are  laid,  or  might  prevent 
gas  companies  from  making  improper  use  of  its  public  high- 
ways.48 Where  county  commissioners  are  given  the  custody 
and  control  of  a  pike  or  highway  in  the  State,  they  may  take 
steps  to  require  the  removal  to  the  other  side  of  the  street 
of  poles  and  wires  when  they,  from  their  location  and  the  ex- 
isting conditions,  seriously  incommode  the  public.49 

§  195.  Delegation  to  Towns,  Villages  and  Counties — 
Water  Rates— Ferries— Heat,  Light  and  Power  Franchise 
and  Contract,  When  Void — Waterworks — Hydrant  Rent- 
als.— Where   towns   and   villages    have    the    right,   under   a 

46  Patterson  v.  Wollmann,  5  N.  48  Consolidated  Gas  Co.  v.  County- 
Dak.  608,  67  N.  W.  1040,  33  L.  R.  A.  Commrs.  of  Baltimore  County,  98 
536.     See  Green  v.  Ivey  (Fla.,  1903),    Md.  689,  57  Atl.  29. 

33  So.  711.  49Gantz    v.    Ohio    Postal    Teleg. 

47  Bayne  v.  Board  of  Commrs.  of  Cable  Co.,  140  Fed.  692,  rev'g  Ohio 
Wright  County,  90  Minn.  1,  95  S.  W.  Postal  Teleg  Cable  Co.  v.  Board  of 
456.        *  Commrs.,    137   Fed.   947. 

320 


QUASI-MUNICIPAL   AND    SUBORDINATE    AGENCIES       §    195 

statute,  as  agencies  of  the  State  to  exercise  by  delegation  the 
State's  power  to  secure  the  observance  and  performance  of  the 
duty  of  incorporated  water  companies  to  furnish  water  for 
reasonable  compensation  and  without  unjust  discrimination  to 
such  public  bodies,  or  the  inhabitants  thereof,  such  municipal 
corporations  may,  in  the  exercise  of  the  governmental  power 
so  conferred  by  the  legislature,  regulate  the  water  rates,  and 
that  power  is  a  continuing  one  and  is  not  exhausted  by  the 
first  exercise  thereof.50    If  a  town  is  so  empowered  under  its 
charter  it  may,  without  an  ordinance,  grant  an  exclusive  right 
or  license  for  a  ferry,  and  this  is  so  held  even  though  such  ferry 
is  across  a  navigable  river  without  the  territorial  limits  of  the 
town.51     But  the  fact  that  an  ordinance  has  been  submitted 
to  and  approved  by  vote  of  the  electors  of  a  village,  so  that 
it  is  the  duty  of  the  village  board  under  the  requirements  of  a 
statute  to  grant  a  franchise,  will  not  aid  its  validity  where 
it  is  void  for  unreasonableness  in  granting  a  franchise  and 
making  a  contract  with  a  heat,  light  and  power  company.52 
A  public  ferry  franchise  can,  in  Georgia,  only  be  granted  by 
the  proper  county  authorities.53    Where  a  village  is  empowered 
to  and  does  by  ordinance  grant  a  franchise  for  the  construc- 
tion of  waterworks  in  said  village  and  contracts  to  pay  certain 
hydrant  rentals,   etc.,   and  the   plant  is  constructed  wholly 
within  the  village  limits,  which  village  was  thereafter  incorpo- 
rated as  a  city,  and  the  water  company  and  the  city  continued 
to  act  under  the  ordinance  and  the  contract  upon  the  assump- 
tion that  the  city  had  succeeded  to  the  rights  and  liabilities 
of  the  town,  and  thereafter,  the  latter  exercised  no  rights  and 
derived  no  benefit  from  the  waterworks,  it  was  held  that  the 
city  was  bound  by  the  ordinance  and  contract  as  the  successor 
of  the  town.54 

"Danville  v.  Danville  Water  Co.,        "Hudspeth  v.  Hall,  111  Ga.  510, 
180  111.  235,  54  N.  E.  224.  36  S.  E.  770. 

51  Dinner  v.  Humberstone,  26  Can.        5*  Washburn    Waterworks    Co.    v. 
Sup.  Ct.  252.  City  of  Washburn,  129  Wis.  73,  108 

"  Le  Feber  v.  West  Allis,  119  Wis.    N.  W.  194. 
608,  97  N.  W.  203,  100  Am.  St.  Rep.  y 

917. 

21  321 


§§    196,  197       DELEGATION    OF    POWER— MUNICIPAL, 

§  196.  Delegation  to  Town  Council— Use  of  Streets.— The 
town  council  may,  under  New  Jersey  public  laws,  providing 
for  the  formation  and  government  of  towns,  prescribe  by 
general  ordinance  the  manner  of  exercise  by  corporations  or 
individuals  of  any  privilege  granted  them  in  digging  up  any 
street,  alley  or  highway,  but  every  grant  of  such  privilege 
need  not  necessarily  be  also  by  ordinance,  and  under  a  statute 
So  empowering  a  town  council  to  appoint  such  subordinate 
officers  as  may  be  deemed  necessary,  it  is  authorized  to  ap- 
point a  street  commissioner  and  prescribe  that  the  fees  to  be 
paid  for  permits  in  the  opening  of  streets  may  be  fixed  by 
him.55 

§  197.  Delegation  to  Selectmen  or  to  Board  of  Aldermen 
of  City— Use  of  Streets— Location  and  Control  of  Electrical 
Appliances,  etc.— Conditions  as  to  Street  Railway  Fares.— 

In  Connecticut  the  selectmen  in  towns  are,  subject  to  the 
provisions  of  the  statute,  vested  with  the  full  direction  and 
control  of  the  location,  relocation  or  removal  of  electrical  fix- 
tures of  telephone  and  other  electrical  companies.  So  in 
Massachusetts  and  in  Vermont  certain  powers  have  been  con- 
ferred upon  these  subordinate  bodies  as  to  location,  etc.,  of 
electrical  appliances,  and  for  the  assessment  of  damages  for 
injury  by  location,  etc.,  of  lines.56  And  where  a  statute  au- 
thorizes the  selectmen  of  a  town,  in  case  they  are.  of  opinion 
that  public  necessity  and  convenience  require  the  granting 
of  a  location  to  a  street  railway  company,  to  prescribe  how 
the  tracks  shall  be  laid  and  the  kind  of  rails,  they  may  not 
only  prescribe  the  original  construction  but  may  also  prescribe 
that  the  company  may  at  its  election  use  a  cheaper  rail  without 
granite  paving  within  the  rails  and  for  a  certain  space  outside 
on  condition  that  if  not  satisfactory  they  shall  be  changed,  and 
the  determination  of  the  selectmen  as  to  the  work  being  satis- 

55  Stowe  v.  Town  of  Kearney,  72  awarding  certain  contracts.    Pamph. 

N.  J.  L.  106,  59  Atl.  1058.    The  case  Laws  1895,  p.  218,  §  47. 

here  showed,  however,  an  abuse  of  56  See  Joyce  on  Elec.  Law  (2d  ed.), 

discretion    by   the   town    council    in  §§  156,  226a. 

322 


QUASI-MUNICIPAL   AND    SUBORDINATE    AGENCIES       §    198 

factory  in  accordance  with  the  condition,  and  with  the  authority 
conferred  by  statute  is  final,  at  least  where  no  fraud  exists, 
and  cannot  be  transferred  to  or  controlled  by  the  courts,  and 
it  is  immaterial  that  the  selectmen  ought  to  have  been  satis- 
fied.57 Again,  although  a  statute  authorizes  the  board  of 
aldermen  of  a  city  or  the  selectmen  of  a  town,  in  granting  a 
location  to  a  street  railway  company,  to  prescribe  the  manner 
in  which  tracks  shall  be  laid,  and  the  kind  of  rails,  poles,  wires 
and  other  appliances  which  shall  be  used,  and  also  to  impose 
such  other  terms,  conditions  and  obligations  in  addition  to 
those  applying  to  all  street  railways,  under  the  general  pro- 
visions of  law,  as  the  public  interest  may  require,  still,  it  is 
not  within  the  power  of  such  board  of  aldermen  of  a  city  or 
of  selectmen  of  a  town  to  impose  a  condition  of  location  regu- 
lating" and  restricting  the  fares  to  be  charged  by  a  street  rail- 
way company,  where  other  statutes  contain  other  provisions 
as  to  the  right  of  the  directors  of  such  company,  primarily  to 
fix  and  regulate  fares,  subject  to  revision  by  the  railroad  com- 
missioners under  certain  limitations  on  their  powers;  and  in 
such  case,  as  the  condition  of  location  is  illegal  and  wrongfully 
imposed,  the  acceptance  by  the  company  of  the  grant  of  loca- 
tion so  burdened  does  not  constitute  a  contract  with  the  grant- 
ing board.58 

§  19S.  Delegation  to  Trustees  of  Town — Drawbridge — 
Board  of  Gas  Trustees — Gas  Rates — Lighting  Plant  Ordi- 
nance Invalid. — The  trustees  of  a  town  may  grant  by  resolution, 
to  a  riparian  proprietor,  a  franchise  to  construct  a  drawbridge 
over  waters  of  a  bay,  the  title  and  sovereignty  to  which  and 
of  the  lands  thereunder  in  such  town  are  vested  in  said  town 
by  royal  charter  granted  in  colonial  days,  as  the  grant  of  such 
franchise  is  the  exercise  of  governmental  power  and  a  grant 
by  resolution  is  as  effective  as  a  grant  by  deed.89    But  a  board 

,;  Selectmen  of  Gardner  v.  Temple-  r'"  Trustees     of     Southampton     v. 

ton   St.   Ry.,    184  Mass.   294,  68  N.  Jessup,  162  N.  V.  122,  .r,ti  N.  E.  538, 

I..  340.  rev'g  42  N.  Y.  Supp.  4,  10  App.  Div. 

58  Keefe  v.  Lexington  &  Boston  St.  156. 
Ry.  Co.,  185  Mass.  183,  71)  X.  E.  37. 

323 


§§    199,   200      DELEGATION    OF    POWER — MUNICIPAL, 

of  gas  trustees  of  a  city,  whose  authority  under  a  statute  is 
limited  to  fixing  the  price  of  gas  by  such  rules  and  regulations 
as  a  town  council  may  prescribe,  cannot  exceed  such  authority 
by  raising  the  rates  without  action  by  the  council  as  provided 
by  the  statute.60  Where  a  lighting  plant  ordinance  of  town 
trustees  granting  the  franchise  is  invalid,  a  provision  therein 
obligating  the  town  to  pay  for  a  certain  number  of  lights  for 
the  street,  goes  with  the  invalidity.61 

§199.  Delegation  to  Board  of  Supervisors — Grant  of 
Turnpike  Franchise— Right  to  Collect  Tolls.— A  grant  of  a 
turnpike  franchise  by  a  board  of  supervisors  made  under  au- 
thority conferred  by  the  legislature,  has  the  same  force  and 
effect  in  respect  to  its  validity,  the  presumptions  in  its  favor, 
and  the  mode  in  which  it  may  be  attacked,  as  a  grant  of  any 
other  right,  privilege  or  thing  made  by  any  department  of  the 
government  under  authority  of  the  law.62  So  the  board  of 
supervisors  may,  where  a  statute  so  provides,  confer  a  license 
or  franchise  upon  anyone  to  collect  tolls  over  a  public  high- 
way where  it  complies  with  the  prerequisites  specified,  such 
as  the  determination  that,  in  its  judgment,  the  necessary  ex- 
pense in  operating  such  public  highway  is  too  great  to  justify 
the  county  in  operating  and  maintaining  it.63 

§  200.  Delegation  to    Highway  or  Toll   Road  Commis- 

60  Foster  v.  Findlay,  5  Ohio  C.  C.  ground    conduits,  see  Village  of   Car- 

455.  thage  v.  Central  New  York  Teleph. 

Delegation  to  commission  of  gas  and  Co.,  96  N.  Y.  Supp.  919,   110  App. 

electricity,  see  §  160,  herein.  Div.  625. 

81  Meyer    v.    Town    of    Boonville,        "2  Truckee  &  Tahoe  Turnpike  Road 

162  Ind.  165,  70  N.  E.  146.  Co.  v.  Campbell,  44  Cal.  89. 

Power     of     village     trustees — Tel-        Electric   street   railway — Delegation 

ephone    companies,    see     People    ex  to   supervisors,   see    Joyce   on   Elec. 

rel.  Monticello  Teleph.  Co.  v.  Trus-  Law  (2d  ed.),  §  155. 
tees,  72  N.  Y.  Supp.  350,  35  Misc.        63  Bedell  v.  Scott,  126  Cal.  675,  59 

675;    New    Union    Teleph.     Co.     v.  Pac.    210,     under    County    Govern- 

Marsh,  89  N.  Y.  Supp.  79,  96  App.  ment  Act,  §  25,  subdv.  41,  Stat.  1893, 

Div.  122.  p.   359.     See  Prosser  v.   County  of 

Power  of    village  trustees — Under-  Wapello,    18   Iowa,  327;   Chapin   v. 

Crasen,  31  Wis.  209. 

324 


QUASI-MUNICIPAL    AND    SUBORDINATE    AGENCIES       §    200 

sioners — Public  Lighting  Franchise — Bridges — When  Order 
to  Cease  Taking  Tolls  Invalid — Delegation  to  City  Officials, 
Subway  Construction. — The  highway  commissioners  of  a 
town  which  is  a  municipal  corporation  may  grant  a  franchise 
to  a  public  lighting  company  and  may  exercise  their  discre- 
tion, and  the  courts  have  no  power  to  interfere  with  such 
municipal  bodies  when  their  discretion  is  to  be  exercised  when 
no  fraud  or  corruption  or  bad  faith  amounting  to  corruption  is 
charged  or  proven.  In  such  case  the  franchise  may  be  given 
without  a  consideration  therefor,  even  though  a  consideration 
is  offered  by  another.64  Commissioners  of  highways,  may, 
under  the  highway  laws,  be  the  proper  officers  to  jointly  con- 
tract for  building  or  repairing  a  bridge  between  two  towns, 
or  such  power  may  devolve  entirely  upon  the  board  of  super- 
visors under  the  county  laws.65  The  power  to  locate  founda- 
tions and  walls,  in  a  case  where  a  track  elevation  ordinance 
provides  for  the  construction  of  a  subway  in  a  certain  street, 
may  be  properly  delegated  by  a  city  council  to  city  officials.66 
Where  a  statute  confers  on  a  highway  or  toll  road  commis- 
sioner authority  to  examine  toll  roads  and,  if  he  has  reason  to 
believe  that  they  are  defective,  to  require  the  toll  road  com- 
pany to  repair  the  same  within  a  certain  time,  or  in  default 
thereof,  that  the  toll  shall  cease,  and  the  statute  also  provides 
for  a  full  and  complete  investigation  and  hearing  and  for  an 
appeal  to  the  Court  of  Chancery,  such  commissioners'  powers  are 
thereby  limited  and  such  requirement  as  to  a  hearing  is  a 
prerequisite  to  the  validity  of  an  order  of  the  commissioners 
that  such  company  shall  cease  taking  tolls.  Such  statute  is 
also  unconstitutional  in  that  it  encroaches  on  the  jurisdiction 
and  powers  of  such  chancery  courts,  which  possessed  no  ap- 
pellate jurisdiction,  and  so  the  statute  provided  for  no  appeal 

"Craft  v.  Lent,  103  N.  Y.  Supp.  ply  Co.,  86  N.  Y.  Supp.  412,  90  App. 

366,  53  Misc.  584.     See  §§  136,  184,  Div.  548;  examine  Croley  v.  Califor- 

herein.  nia  Pac.  R.  Co.,  134  Cal.  557,  66  Pac. 

"Colby   v.   Town    of   Mt.    Morris,  860. 

100  N.  Y.  Supp.  362.     Set-  Town  of  66  People  v.  Grand  Trunk  Ry.  Co., 

Palatine  v.  Canajoharie  Water  Sup-  232  111.  292,  83  N.  E.  839. 

325 


§    201  DELEGATION    OF    POWER — MUNICIPAL, 

from  the  arbitrary  decision  of  the  commissioner  who  is  not  a 
judicial  officer  and  is  one  upon  whom  judicial  power  cannot 
be  conferred.67 

§  201.  Delegation  to  Police  Juries— Ferries,  Bridges  and 
Roads. — Police  juries  throughout  the  State  of  Louisiana  have 
plenary  powers  with  respect  to  the  establishment  of  public 
ferries,  bridges  and  roads,  and  with  respect  to  their  abandon- 
ment or  discontinuance,  and  may,  in  their  discretion,  convert 
a  free  bridge  or  road  into  a  toll  bridge  or  road  and  vice  versa, 
and  may  operate  a  toll  bridge  or  road  directly  or  through 
their  lessees ;  it  may  also  restrain  by  injunction  the  operation 
of  a  free  ferry  or  bridge  within  the  prohibited  distance  from 
a  public  toll  bridge  prescribed  by  statute  or  ordinance.68  Such 
juries  may  also  exercise  their  discretion  to  establish  a  toll 
road  upon  the  site  of  a  free  road  or  elsewhere,  and  may  build, 
maintain  and  operate  such  roads,  or  do  so  by  contract  with 
corporations  or  individuals,  nor  will  the  exercise  of  such  dis- 
cretion be  interfered  with  by  the  courts  except  in  case  it  has 
been  grossly  abused.69  So  a  police  jury  has  the  power  or  right 
to  offer  a  ferry  privilege  and  to  have  it  adjudicated  at  public 
auction,    and   irregularities   or  illegalities   in   the   manner  of 

67  Bridge  Street  &  Allendale  juries  have  also  the  power  to  pro- 
Gravel  Road  Co.  v.  Hogadone  (Mich.,  hibit  by  ordinance  the  operation  of 
1908),  114  N.  W.  917,  14  Det.  Leg.  unlicensed  ferries  and  bridges  within 
N.  858;  Besson  v.  Crapo  Toll  Road  competitive  distance;  nor  has  any 
Co.  (Mich.,  1908),  114  N.  W.  924,  person  the  legal  right  to  construct  a 
14  Det.  Leg.  N.  858.  See  §  172,  pontoon  ferry  bridge  across  a  nav- 
herein.  igable  stream  without  special  legis- 

68  Police  Jury  of  Lafourche  v.  lative  authority,  state  or  Federal. 
Robichaux,  116  La.  286,  40  So.  705,  Blanchard  v.  Abraham,  115  La.  989, 
reaffirming  St.  Joseph  Plank  Co.  v.  40  So.  379,  holding  also  that  Act  No. 
Kline,  106  La.  325,  30  So.  854;  202,  p.  391  of  1902,  relative  to  the 
Blanchard  v.  Abraham,  115  La.  989,  powers  of  police  juries  throughout 
40  So.  379.  the  State  (the  parish  of  Orleans  ex- 

The    police    juries   of   the    several  cepted),  is  not  a  local  or  special  law 

parishes  are  vested  by  statute  with  in  the  sense  of  article  48  of  the  state 

the  exclusive  right  to  establish,  lease,  constitution. 

and    regulate     ferries    and    bridges        68  St.  Joseph    Plank  Road  Co  v. 

within  their  respective  limits;  such  Kline,  106  La.  325,  30  So.  854. 

326 


QUASI-MUNICIPAL   AND    SUBORDINATE    AGENCIES       §§    202,  203 

exercising  the  right  which  that  body  has  to  confer,  may  be 
ratified,  or  may  be  cured  by  estoppel.70 

§  202.  Delegation  of  Power  by  Municipality. — A  state 
government  may  delegate  to  a  municipal  corporation  part  of 
its  own  powers.  But  such  powers  cannot  be  delegated  or 
vicariously  exercised  unless  the  authority  to  delegate  is  spe- 
cially granted  by  the  legislature,  nor  can  the  municipal  corpora- 
tion divest  itself  of  the  discretion  vested  by  the  statute.71 

§  203.  Delegation  by  Ordinance  to  Street  Commissioner.— 

The  requirement  of  a  general  ordinance  requiring  permission 
of  the  street  commissioner  for  the  opening  of  streets  and  pub- 
lic places  is  proper  and  not  subject  to  the  objection  that  it 
is  a  delegation  of  power  to  an  officer  not  authorized,  as  it  does 
not  empower  the  street  commissioner  to  grant  the  right  to 
open  the  street,  but  merely  requires  a  written  permit  from  him, 
otherwise  such  opening  is  forbidden.72 

70  Prince   v.    Police   Jury  of   Con-   809,  11  So.  36  (a  case  of  police  regu- 
cordia  Parish,   112  La.  257,  36  So.    lation  of  private  markets). 

342.  "  Stowe  v.   Kearny,  72  N.  J.  L. 

71  State  v.  Garibaldi,  44  La.  Ann.    106,  59  Atl.  1058. 


327 


§  204 


CONSTITUTIONAL    LAW — INTERPRETATION 


CHAPTER  XV. 

CONSTITUTIONAL   LAW — INTERPRETATION   OR   CONSTRUCTION   OF 
CONSTITUTIONS. 


§  204.  Interpretation    or    Construc- 
tion— Generally. 

205.  Construction — Intent — Effect 

Given  to  Every  Part — Ordi- 
nary Signification  of  Words 
— Grammatical  Construc- 
tion. 

206.  Context — Ordinary  and  Tech- 

nical Meaning  of  Words — 
Phrase  or  Word  in  Differ- 
ent Parts  of  Instrument. 

207.  Plain  Language  of  Constitu- 

tion Cannot  Be  Ignored — 
Repugnant  Provisions. 

208.  Meaning   of    Constitution    as 

Understood  by  Its  Framers 
— Construction . 

209.  Strict  Construction. 

210.  Implied    Matters    a    Part    of 

Constitution. 

211.  Punctuation. 

212.  Interpretation     in     View     of 

Common  Law. 

213.  Constitutional  Prohibitions — 

Proviso — Exception  from 
General  Words. 

214.  Partially  Invalid   Provisions. 

215.  Construction — Prospective  — 

Retrospective. 

216.  Contemporaneous     Construc- 

tion— Extrinsic    Matters — 


History  —  Debates  and 
Proceedings  in  Convention. 
§  217.  Contemporaneous  Construc- 
tion Continued  — ■  Legisla- 
tive Construction. 

218.  Construction    or    Interpreta- 

tion Long  Continued  and 
Acquiesced  in  by  Legisla- 
tive and  Executive  De- 
partments. 

219.  Long  and  Continued  Usage. 

220.  Amendments  to  Constitution. 

221.  Title    of    Legislative    Enact- 

ment Proposing  Constitu- 
tional Amendment. 

222.  Revised    Constitution  —  Re- 

enactment. 

223.  Constitution    Adopted    from 

Another  State — Construc- 
tion. 

224.  Former  Constitution  Repealed 

by  Implication. 

225.  Whether  Constitutional    Pro- 

visions Self-Executing. 

226.  When    Constitutional   Provi- 

sion is  Self-Executing — In- 
stances. 

227.  When    Constitutional       Pro- 

vision  is   Not    Self-Execu- 
ting— Instances. 


§  204.  Interpretation    or    Construction— Generally. — The 

courts  of  the  United  States  are  bound  to  take  notice  of  the 
Constitution.    It  is  paramount  to  the  power  of  the  legislature. 

328 


OR   CONSTRUCTION    OF    CONSTITUTIONS  §   205 

Every  act  of  Congress,  and  every  statute  repugnant  thereto 
is  void  from  the  beginning  and  without  life  or  operation;  such 
act  or  statute  cannot  become  a  law.1  The  policy  of  constitu- 
tional provisions  is  not  a  guide  to  the  determination  of  consti- 
tutional questions,  for  they  must  rest  upon  the  provisions  them- 
selves of  the  Constitution,  and  the  courts  possess  no  control  over 
matters  of  mere  policy;  the  jurisdiction  of  the  courts  extends 
only  to  the  construction  and  enforcement  of  the  Constitution 
and  laws  as  they  exist.2  Although  the  Federal  Constitution 
embraces  all  new  conditions  within  the  scope  of  the  powers 
conferred,3  still  it  must  be  construed  and  administered  now 
according  to  its  true  meaning  and  intention  when  it  was 
formed  and  adopted.4  It  may  be  generally  stated  that  such 
rules  of  construction  as  have  been  established  in  relation  to 
statutes  are  also  applicable  to  constitutions.5  To  this  rule 
there  are,  however,  certain  exceptions  or  qualifications. 

§  205.  Construction — Intent — Effect  Given  to  Every  Part 
— Ordinary  Signification  of  Words — Grammatical  Con- 
struction.— The  purpose  of  interpretation  or  construction  of  a 
constitution  is,  if  possible,  to  ascertain  the  intent,  so  that  the 
instrument  may  effectuate  such  intent.6     The  only  proper 

1  Marbuiy  v.  Madison,  1  Cranch  199  U.  S.  437,  50  L.  ed.  261,  26  Sup. 
(5  U.  S.),  137,  2  L.  ed.  60.  See  also  Ct.  — .  See  Kansas  v.  Colorado,  206 
Norton  v.  Shelby  County,  118  U.  S.  U.  S.  46,  51  L.  ed.  956,  27  Sup.  Ct. 
425,  30  L.  ed.  178,  6  Sup.  Ct.  1121;  655. 

Vanhorne  v.  Dorrance,  2  Dall.  [2  U.  4  Dred  Scott  v.  Sandford,  19  How. 

S.  (C.  C.)]    304,  320,  1    L.  ed.  391,  (60  U.  S.)  393,  15  L.  ed.  691.     See 

Fed.  Cas.  No.   16,857;  Seneca  Min.  South  Carolina  v.  United  States,  199 

Co.  v.  Osman,  82  Mich.  573,  47  N.  W.  U.  S.  437,  50   L.  ed.  261,  26  Sup. 

25,  9  L.  R.  A.  770;  Minnesota  Sugar  Ct.  — . 

Co.  v.  Iverson,  90  Minn.  6,  97  N.  W.  5  Nicholson  v.  Thompson,  5  Rob. 

454;  State,  Smyth,  v.  Moores,  55  Neb.  (La.)  367;  People  ex  rel.  Jackson  v. 

480,  41  L.  R.  A.  624,  76  N.  W.  175;  Potter,    47    N.    Y.    375,    42    How. 

Heyman,  Ex  parte  (Tex.  Cr.  App.),  375. 

78  S.  W.  349.  •  People  v.  Leonard,  73  Cal.  230, 

2  Grand  Island  <fc  Northern  Wyom-  14  Pac.  853;  Bourland  v.  Heldreth, 
ing  Rd.  Co.  v.  Baker,  6  Wyo.  369,  26  Cal.  I61j  Hills  V.  City  of  Chicago, 
378,  34  L.  R.  A.  835,  45  Pac.  494.  60  111.  86;  Minnesota  &  Pacific  Rd. 

3  South  Carolina  v.  United  St.it.  s.  Co.  v.  Sibley,  2  Minn.  13. 

329 


§  205 


CONSTITUTIONAL   LAW — INTERPRETATION 


way  to  construe  a  constitution  is  to  consider  first,  the  language 
used  as  being  the  best  evidence  of  the  intention;  and  the  in- 
terpretation should,  if  possible,  be  such  that  force  and  effect 
shall  be  given  to  every  part  or  provision  thereof,  and  to  each 
word,  unless  it  would  lead  to  a  conclusion  absurd  in  itself,  or 
to  one  necessarily  repugnant  to  the  plain  meaning  of  the  in- 
strument; and  such  provisions  and  parts  should  be  made  to 
harmonize,  if  by  any  reasonable  construction  it  can  be  done.7 
The  evil  intended  to  be  remedied  should  also  be  considered.8 


7  Funkhouser  v.  Spahr,  102  Va. 
306,  46  S.  E.  378;  State,  Chamberlin, 
v.  Daniel,  17  Wash.  Ill,  116,  49  Pac. 
243. 

See  also  the  following  cases: 

Arkansas:  Hawkins  v.  Filkins, 
24  Ark.  286;  State  v.  Ashley,  1  Pike 
(1  Ark.),  513. 

California:  Marye  v.  Hart,  76  Cal. 
291,  293,  18  Pac.  325;  Miller  v. 
Dunne,  72  Cal.  462,  14  Pac.  27;  Bour- 
land  v.  Hildreth,  26  Cal.  161;  Cohen 
v.  Wright,  22  Cal.  293. 

Colorado:  People,  Livesay,  v. 
Wright,  6  Colo.  92.  Examine  Denver 
Circle  R.  Co.  v.  Nester,  10  Colo.  403, 
15  Pac.  715. 

Georgia:  Examine  Paddleford  v. 
Savannah,  14  Ga.  438. 

Illinois:  Beardstown  v.  City  of 
Virginia,  76  111.  34. 

Kentucky:  Louisville  School 
Board  v.  King  (Ky.,  1908),  107  S.  W. 
247. 

Louisiana:  Western  Union  Teleg. 
Co.  v.  Railroad  Commission  (La., 
1908),  45  So.  598;  Decklar  v.  Frank- 
enberger,  30  La.  Ann.  410. 

Maryland:  Dyer  v.  Bayne,  54  Md. 
87,  100;  Picking  v.  State,  26  Md.  503; 
Manley  v.  State,  7  Md.  135. 

Minnesota:  Minnesota  &  Pacific 
Rd.  Co.  v.  Sibley,  2  Minn.  13. 

Mississippi:  Examine  Green  v. 
Weller,  32  Miss.  652. 

330 


New  York :  People  v.  Fancher,  50 
N.  Y.  288. 

Oregon:  Acme  Dairy  Co.  v.  City 
of  Astoria  (Oreg.,  1907),  90  Pac.  153. 

South  Carolina:  Norton  v.  Brad- 
ham,  21  S.  C.  375,  382. 

Effect  must  be  given  to  each  word. 
Knowlton  v.  Moore,  178  U.  S.  41,  87, 
44  L.  ed.  969,  20  Sup.  Ct.  747,  per 
White,  J.;  Holmes  v.  Jennison,  14 
Pet.  (39  U.  S.)  540,  570,  10  L.  ed. 
579,  per  Taney,  C.  J.;  Ogden  v. 
Saunders,  12  Wheat.  (25  U.  S.)  213, 
316,  6  L.  ed.  606,  per  Trimble,  J.,  in 
dissenting  opinion.  See  Osborn  v. 
United  States  Bank,  9  Wheat.  (22 
U.  S.)  738,  851,  6  L.  ed.  204,  per 
Marshall,  C.  J. 

All  other  provisions  relating  to  sub- 
ject are  to  be  considered.  Tazewell 
v.  Herman  (Va.,  1908),  60  S.  E. 
767. 

Provisions  are  not  to  be  segregated 
and  considered  separately,  but  all  pro- 
visions are  to  be  brought  together 
and  so  interpreted  as  to  effectuate 
the  great  purposes  of  the  instrument. 
South  Dakota  v.  North  Carolina,  192 
U.  S.  286,  328,  48  L.  ed.  448,  24  Sup. 
Ct.  269,  per  White,  J.,  in  dissenting 
opinion;  Downes  v.  Bidwell,  182  U. 
S.  244,  312,  45  L.  ed.  1088,  21  Sup. 
Ct.  770.  per  White,  J. 

8  Louisville  School  Board  v.  King 
(Ky.,  1908),  107  S.  W.  247. 


OR  CONSTRUCTION   OF   CONSTITUTIONS  §   205 

The  plain  ordinary  signification  and  usual  meaning  in  com- 
mon parlance  must  be  given  to  the  words  employed,  when  the 
language  is  clear  and  unambiguous,  and  the  intent  must  be 
gathered  therefrom.9  But  a  judicial  construction  of  words 
will  prevail  over  the  popular  conception  of  their  signification, 
and  this  applies  as  well  to  constitutions  as  to  statutes.10  The 
mere  grammatical  construction  ought  not,  however,  to  control 
the  interpretation,  unless  it  is  warranted  by  the  general  scope 
and  object  of  the  provision.11  But  no  uniform  rule  of  inter- 
pretation can  be  applied  to  the  Federal  Constitution,  which 
may  not  allow,  even  if  it  does  not  positively  demand,  many 

9  Colorado:    Alexander  v.  People,  10  L.  ed.  579,  per  Taney,  C.  J.  (usual 

7  Colo.  155,  2  Pac.  894.  and  fair  import  of  words  to  be  given); 

Idaho:    Powell   v.    Spackman,    7  Craig  v.  Missouri,  4  Pet.  (29  U.  S.) 

Idaho,  692,  54  L.  R.  A.  378,  65  Pac.  410,  454,  7  L.  ed.  903,  per  M'Lean,  J. 

503.  (plain  import  of  words  to  be  given); 

Illinois:  Law  v.  People,  87111.  385.  Brown  v.  Maryland,  12  Wheat.   (25 

Nevada:  State  v.  Doran,  5  Nev.  U.  S.)  419,  437,  6  L.  ed.  678,  per 

399.  Marshall,   C.   J.    (literal   meaning  of 

Pennsylvania:  Monongahela  Nav.  words  to  be  considered  in  connection 

Co.   v.  Coons,   6  Watts.   &  S.   (Pa.)  with  other  words);  Martin  v.  Hunter, 

101.  1  Wheat.  (14  U.  S.)  304,  326,  4  L.  ed. 

South  Carolina:   Charleston,  City  97,  per  Story,  J.  (to  be  given  reason- 

of,  v.  Oliver,  16  S.  C.  47.  able   construction   according  to   im- 

See  also  the  following  cases:  Doo-  port  of  its  terms,  and  words  to  be 

ley  v.  United  States,  183  U.  S.  151,  taken  in  their  natural  and  obvious 

17:$,  46  L.  ed.  128,  22  Sup.  Ct.  62,  sense,  which  should  not  be  unreason- 

per  Fuller,  C.  J.,  in  dissenting  opinion  ably  restricted  or  enlarged);  Epping 

(plain  language  not  to  be  construed  v.  City  of  Columbus,  117  Ga.  263,  43 

away);   McPherson   v.   Blacker,    146  S.  E.  803  (words  should  ordinarily  be 

U.  S.  1,  27,  13  Sup.  Ct.  3,  36  L.  ed.  construed  according  to  their  popular 

869,  per  Fuller,  C.  J.   (framers  used  sense  and  meaning), 

words  in  natural  sense);  Tennessee  v.  If   the   words    are   clear,   explicit, 

Whit  wort  li,    117  U.  S.   129,   147,  29  unambiguous  and  free  from  obscurity 

L.   ed.    830,   6  Sup.   Ct.   645    (given  tin- courts  are  bound  to  expound  the 

meaning  they  have  in  common  use);  language  according  to  the  common 

Passenger  Cases,  7  How.  (48  U.  S.)  sense  and  ordinary  meaning  of  the 

283,  177.  12  L.  ed.  702,  per  Taney,  C.  words.     Minnesota  &  Pacific  Rd.  Co. 

J.,    in    dissenting   opinion    (members  v.  Sibley,  2  Minn.  13. 

of  convention   used   words   in   same  l0Nephi    Plaster    &    Mfg.    Co.    v. 

sense  as   in    their  debates;   no   pre-  Juab  County  (Utah,  1907),  93  Pac 

sumption    tli.it    they    used    ordinary  53,  56,  per  Frick,  J. 

words  in  unusual  sense | ;  Holmes  v.  "Groves    v.    Slaughter,    15    Pet 

Jennison,  14  Pet.  (39  U.  S.)  540,  571,  (40  U.  S.)  449,  10  L.  ed.  800. 

331 


§§   206,    207      CONSTITUTIONAL    LAW — INTERPRETATION 

modifications  in  its  actual  application  to  particular  clauses, 
although  a  safe  rule  is  to  consider  the  nature  and  objects  of 
the  particular  powers,  duties  and  rights,  and  to  give  to  the 
words  of  each,  just  such  operation  and  force,  consistent  with 
their  legitimate  meaning,  as  may  fairly  secure  and  attain  the 
ends  proposed.12 

§  206.  Context — Ordinary  and  Technical  Meaning  of 
Words — Phrase  or  Word  in  Different  Parts  of  Instru- 
ment.— Reference  should  be  had  to  the  context; 13  and  the 
popular  meaning  will  prevail  over  a  technical  one,  unless  it  is 
apparent  therefrom,  or  from  the  nature  of  the  subject,  that  the 
technical  meaning  was  intended;14  and,  generally,  unless  the 
context  makes  it  clearly  apparent  that  a  phrase  or  word  used 
in  the  instrument  has  a  meaning  different  from  the  plain  and 
manifest  sense  thereof,  such  word  or  phrase  should  be  given 
the  same  construction  if  used  in  any  other  part.15 

§  207.  Plain  Language  of  Constitution  Cannot  Be  Ig- 
nored— Repugnant  Provisions. — A  construction  of  a  consti- 
tution should  be  such  as  to  give  it  force  and  effect  in  every 
part  rather  than  a  construction  by  which  any  part  shall  be 
rendered  meaningless  or  destroyed ; 16  and  a  constitutional 
provision  which  is  clear,  unambiguous,  and  not  duplicitous, 
cannot  be  construed  away; 17  nor  can  the  plain  language  of 
such  a  provision  be  ignored  or  altered  even  though  by  literal 
interpretation,  an  inconsistency  with  other  parts  of  the  in- 
strument in  relation  to  other  subjects  may  arise; 18  and  a  con- 
struction which  raises  a  conflict  between  different  parts  of  a 
constitution  is  not  admissible,  where,  by  any  reasonable  con- 

12  Prigg  v.   Pennsylvania,   16  Pet.  15  Epping  v.  City  of  Columbus,  117 
(41  U.  S.)  539,  10  L.  ed.  1060.  Ga.  263,  43  S.  E.  803. 

13  Richardson  v.  Treasure  Hill  Min.  16  State,  Chamberlain,  v.  Daniel,  17 
Co.,  23  Utah,  366,  65  Pac.  74.  Wash.  Ill,  49  Pac.  243.     See  §  205, 

14  Epping  v.  City  of  Columbus,  117  herein. 

Ga.  263,  43  S.  E.  803;  Hamilton  Nat.        17  State,  Robertson,  v.  McGough, 
Bank  v.  American  Loan  &  Trust  Co.,    118  Ala.  159,  24  So.  395. 
66  Neb.  67,  92  N.  W.  189.  18  Jackson  v.  State,  87  Md.  191,  39 

Atl.  504. 

332 


OR    CONSTRUCTION    OF    CONSTITUTIONS  §   208 

struction,  they  may  be  made  to  harmonize.19  If,  however, 
repugnant  provisions  cannot  be  reconciled,  the  order  of  time 
and  local  position  should  be  considered  and  preference  given 
to  that  which  is  last.20 

§  208.  Meaning  of  Constitution  as  Understood  by  Its 
Framers — Construction. — In  interpreting  the  constitution  re- 
course may  be  had  to  the  position  of  the  framers  of  the  instru- 
ment, and  what  they  must  have  understood  to  be  the  meaning 
and  scope  of  the  grants  of  power  contained  therein.21  But  it 
is  presumed  that  the  framers  of,  and  the  people  who  adopted 
the  constitution  employed  words  in  their  natural  sense  and 
expressed  what  they  intended,  so  that  the  last  stated  rule 
would  not  apply  so  as  to  control  unambiguous  and  clearly 
expressed  constitutional  provisions; 22  and,  as  stated  in  a  prior 
section,  the  only  proper  way  to  construe  a  constitution  is  to 
consider  the  language  used,  and,  if  possible,  to  ascertain  the 
intent  therefrom,  so  that  the  instrument  may  effectuate  that 
intent; 23  and  it  is  not  so  much  what  was  the  framers  intention 
as  what  is  meant  by  the  words  they  have  used.24  Again, 
although  it  may  not  be  difficult  to  conceive  of  reasons  which 
influenced  the  framers  of  constitutional  amendments  in  in- 
corporating therein  certain  provisions,  such  reasons,  if  true, 
will  not  control  the  court  when  called  upon  to  construe  the 
provisions  of  the  constitution  as  they  originally  stood.25 

19  People,    Livesay,    v.    Wright,    6  199  U.  S.  4.37,  26  Sup.  Ct.  ,  50 

Colo.  92,  95.    See  §  233,  herein.  L.  ed.  261. 

20  Quick  v.  White- Water  Town-  General  intent  of  framers  to  be 
ship,  7  Ind.  570.  "If  the  different  considered.  Tazewell  v.  Herman 
sections  cannot  be  'liquidated'  and  (Va.,  1908),  45  S.  E.  598. 

made  to  stand  together,  it  is  a  'rule        "See  Gibbons  v.  Ogden,  9  Wheat. 

of    construction,    not    derived    from  (22  U.  S.)   1,   188,  6  L.  ed.  23,  per 

positive  law,  but  from  the  nature  and  Marshall,  C.  J. 

reason  of  the  thing,'  'as  consonant  to        "  See  §  205,  herein. 

truth  and  propriety,'  'that  the  last        '•'  Beardstown  v.  City  of  Virginia, 

in  order  of  time  shall  be  preferred  to  76  111.  34;  Smith  v.  Thursby,  28  Md. 

the    first.'       Federalist,     No.     78.—  244. 

Spencer  v.  The  State,   5  Ind.   41."        "Norton   v.    Bradham,   21    S.   C. 

Id.,  578,  per  Perkins,  J.  375,  383. 

21  South  Carolina  v.  United  States, 

333 


§§    209-212         CONSTITUTIONAL    LAW — INTERPRETATION 

§  209.  Strict  Construction. — Constitutions  do  not  come 
within  the  rule  of  strict  construction  applicable  to  statutes.28 
So  in  the  interpretation  of  the  Federal  Constitution  the  ex- 
tremes of  a  strict  and  a  liberal  construction  should  be  avoided; 27 
and  in  constitutions  generally  a  meaning  or  interpretation  be- 
tween a  strict  and  liberal  construction  should  be  adopted,  and 
technical  rules  avoided.28 

§  210.  Implied  Matters   a    Part    of    Constitution.— That 

which  is  implied  is  as  much  a  part  of  the  constitution  as  that 
which  is  expressed,  and  amongst  the  implied  matters  is  that 
the  nation  may  not  prevent  a  State  from  discharging  the 
ordinary  functions  of  government,  and  no  State  can  interfere 
with  the  National  government  in  the  free  exercise  of  the  powers 
conferred  upon  it.29 

§  211.  Punctuation. — Punctuation  is  not,  as  a  general  rule, 
any  part  of  an  enactment  or  constitutional  provision  and 
cannot  be  permitted  to  control  its  evident  meaning  or  intent.30 

§  212.  Interpretation  in  View  of  Common  Law.— A  con- 
stitution must  be  interpreted  in  view  of  and  with  the  assistance 
of  the  common  law;31  and  recourse  must  be  had  thereto  in 

26  State,  Chamberlain,  v.  Daniel,  17  Legal  Tender  Cases,  110  U.  S.  4,  439, 
Wash.   Ill,   116,  49  Pac.  243.     See    per  Gray,  J. 

Gibbons    v.    Ogden,    9    Wheat.    (22  28  Acme    Dairy    Co.     v.     City    of 

U.  S.)  1,  187,  6  L.  ed.  23,  per  Mar-  Astoria  (Oreg.,  1907),  90  Pac.  153. 

shall,  C.  J.  29  South  Carolina  v.  United  States, 

27  North  River  Steamboat  Co.  v.  199  U.  S.  437,  50  L.  ed.  261,  26  Sup. 
Livingston,  3  Cow.  (N.  Y.)  713,  aff' g  Ct.  123.  See  People  v.  Fleming,  10 
Hopk.  149.    Compare  Southern  Pac.  Colo.  522,  16  Pac.  298. 

R.  Co.  v.  Orton  (C.  C),  32  Fed.  457,  Implied  powers.     See  §  123,  herein. 

473.    "The  construction  "  of  the  Fed-  M  Richardson  v.  Treasure  Hill  Min. 

eral  Constitution    "is  strict  against  Co.,  23  Utah,  366,  388,  65  Pac.  74. 

those    who    claim    under    it,"    per  31  Mobile,  City  of,  v.  Stonewall  Ins. 

Sawyer,  J.,  quoting  from  Sharpless  v.  Co.,  53  Ala.  570;  English  v.  State,  31 

Mayor  of   Philadelphia,  21   Pa.  160,  Fla.    340,    12    So.    689;    Durham   v. 

per  Black,  C.  J.  State,  117  Ind.  477,   19  N.  E.  327. 

Constitution  not  to  be  interpreted  See  also  Baltimore  &  Ohio  R.  Co.  v. 

with  strictness  of  private  contract.  Baugh,  149  U.  S.  368,  394,  37  L.  ed. 

334 


OR   CONSTRUCTION    OF   CONSTITUTIONS  §   213 

interpreting  the  Federal  Constitution.32  In  case  of  conflict 
with  the  common  law,  either  as  to  a  right  or  remedy,  the 
constitution  will  prevail,  and  thus  applies  where  it  makes  pri- 
vate property  inviolate  but  subservient  to  the  welfare  of  the 
public.33 

§213.  Constitutional  Prohibitions  —  Proviso  —  Exception 
from  General  Words. — A  constitutional  prohibition  should 
receive  a  rational  and  not  a  technical  construction;  and,  look- 
ing to  the  evil  intended  to  be  remedied,  it  should  be  applied  to 
such  acts  of  the  legislature  alone  as  are  obviously  within  its 
spirit  and  meaning.34  There  is  a  clear  distinction  between 
such  prohibitions  of  the  constitution  as  go  to  the  very  root  of 
the  power  of  Congress  to  act  at  all,  irrespective  of  time  and 
place,  and  such  as  are  operated  only  throughout  the  United 
States,  or  among  the  several  States.35  And  in  construing 
clauses  of  the  Federal  Constitution  which  involve  conflicting 
powers  of  the  government  of  the  Union  and  of  the  respective 
States  it  is  proper  to  consider  the  literal  meaning  of  the  words 
to  be  expounded,  their  connection  with  other  words  and  of  the 
general  objects  to  be  accomplished  by  the  prohibitory  clause 
or  by  the  grant  of  power,  but  the  words  of  the  prohibition 
ought  not  to  be  pressed  to  their  utmost  extent.  In  our  complex 
system,  the  object  of  the  powers  conferred  on  the  government 
of  the  Union  and  the  nature  of  the  often  conflicting  powers 
which  remain  in  the  States,  must  always  be  taken  into  view 
and  may  aid  in  expounding  the  words  of  any  particular  clause.36 
In  the  absence  of  a  clearly  apparent  intention  to  the  contrary 
a  proviso  should  be  confined  to  the  antecedent  next  preceding 

772,  13  Sup.  Ct.  871,  per  Field,  J.,  in  33  Chicago     &    Erie     Rd.     Co.     v. 
dfc  enting  ..pinion;  Waring  v.  Clarke,  Keith,  07  Ohio  St.  279,  65  N.  E.  1020, 
r,    How.    (46   U.    S.)   441,   466,    per  60  L.  R.  A.  102.1. 
Catron,  J.     CompaTe  The  Huntress,  34  Phillips    v.    Covington    &    Cm- 
Fed.  Cas.  No.  6,914.  cinnati  Bridge  Co.,  2  Mete.  (59  Ky.) 

32  South  Carolina  v.  United  States,  219,  221,  222. 

199  U.  S.  4:',7,  50  L.  ed.  261,  26  Sup.  "  Downes  v.   Bidwell,    182  U.   S. 

Ct.  — ;  United  States  v.  Wong  Kim  244,  45  L.  ed.  1088,  91  Sup.  Ct,  770. 

Ark,  169  U.  S.  649,  42  L.  ed.  890,  18  '■'"■  Brown  v.  Maryland,   1_'  Wheat. 

Sup.  Ct.  456.  (25  U.  S.)  419,  6  L.  ed.  478. 

335 


§§   214,    215      CONSTITUTIONAL    LAW — INTERPRETATION 

it.  ^  This  rule  of  statutory  construction  also  applies  to  a  con- 
stitution.37 If  it  be  a  rule  of  interpretation  to  which  all  assent 
that  the  exception  of  the  particular  thing  from  general  words 
proves  that  in  the  opinion  of  the  lawgiver,  the  thing  excepted 
would  be  within  the  general  clause  had  the  exception  not  been 
made,  there  is  no  reason  why  this  rule  should  not  be  as  appli- 
cable to  the  constitution  as  to  other  instruments.38  The  rule, 
that  as  exceptions  strengthen  the  force  of  a  general  law,  so 
enumeration  weakens  as  to  things  not  enumerated,  is  appli- 
cable to  constitutional  as  well  as  to  statutory  provisions.39 

§  214.  Partially  Invalid  Provisions. — The  authority  given 
to  a  railroad  commission  to  establish  rates  is  not  rendered 
invalid  by  other  invalid  but  separable  provisions  of  a  con- 
stitution which  make  the  rates  so  established  conclusively 
reasonable  and  just  in  case  of  controversy,  and,  therefore,  re- 
pugnant to  the  Fourteenth  Amendment  of  the  Federal  Con- 
stitution.40 

§  215.  Construction — Prospective — Retrospective. — In  the 

absence  of  a  contrary  intention,  clearly  evidenced  beyond 
reasonable  question,  constitutions  will  be  construed  so  as  to 
operate  prospectively  only.41  So  in  order  that  a  constitution 
should  be  held  retrospective  in  its  operation,  such  intention 
should  unmistakably  appear  from  the  words  used.42    A  con- 

37  State  v.  Quayle,  26  Utah,  26,  30,  41  United  States:  Shreveport  v. 
71  Pac.  1060,  citing  Fowler  v.  Tuttle,  Cole,  129  U.  S.  36,  9  Sup.  Ct.  210,  32 
24    N.    H.  9;  Cushing    v.  Warwick,    L.  ed.  589. 

9    Gray    (75    Mass.),    382;   Wolf    v.  Colorado:     Strickler    v.    City    of 

Bauereis,   72   Md.   481-485,    19   Atl.  Colorado    Springs,    16   Colo.    61,    26 

1045,   8  L.  R.  A.  680;  Suth.,  Stat.  Pac.  313,  25  Am.  St.  Rep.  245. 

Const.  §  267;  23  Am.  &  Eng.  Ency.  of  Maryland:   New  Central  Coal  Co. 

Law,  636.  v.  George's  Creek  Coal  &  Iron  Co.,  37 

38  Brown  v.  Maryland,  12  Wheat.  Md.  537. 

(25  U.  S.)  419,  6  L.  ed.  678.  Missouri:    State   v.  Holliday,  66 

39  Western    Union    Teleg.    Co.   v.    Mo.  385. 

Railroad  Commission  (La.,  1908),  45  Utah:     Jungk     v.     Holbrook,    15 

So.  598.  Utah,  198,  49  Pac.  305. 

"Southern   Pac.   R.   Co.   v.   Rail-  42  Jungk    v.    Holbrook,    15    Utah, 

road  Commissioners  (C.  C),  78  Fed.  198,  49  Pac.  305;  Mercer  v.  Gold  Min. 

236.  &  Mill.  Co.  v.  Spry,  16  Utah,  222,  52 

336 


OR   CONSTRUCTION   OF   CONSTITUTIONS  §  215 

stitution  being  prospective  in  operation  does  not  affect  stat- 
utes in  force  when  the  constitution  was  adopted.43  And  a 
constitutional  provision  has  no  retroactive  operation  as  to 
actions  pending  at  the  time  of  the  adoption  thereof,  even 
though  such  provision  relates  to  the  manner  of  bringing  such 
actions.44  So  where  an  action  is  begun  under  a  constitution, 
the  rights  of  the  parties  are  to  be  determined  thereunder  and 
not  under  a  constitution  which  goes  into  effect  thereafter.45 
A  constitution  prohibiting  special  charters  or  special  laws  does 
not  repeal  charters  granted  when  the  constitution  took  effect,48 
nor  is  past  legislation  affected  thereby.47  So  where  corporations 
are  required,  under  a  constitutional  amendment,  to  be  formed 
under  general  statutes  such  requirement  does  not  affect  char- 
ters theretofore  granted,  even  though  subsequently  amended.48 
And  although  a  constitution  provides  for  the  repeal  of  all  laws 
inconsistent  therewith,  and  prohibits  the  passage  of  special 
laws  thereafter,  still  a  special  act  whereby  a  taxing  district  is 
incorporated  is  not  repealed  thereby.49  But  a  constitution 
prohibiting  the  passing  of  any  local  or  special  act  may  operate 
as  a  repeal  to  a  certain  extent  of  a  bank  charter  granted  by 
special  act  prior  thereto.50  Again,  a  law  in  force  when  a  con- 
stitution is  adopted,  may,  when  not  inconsistent  therewith, 

Pac.  382.    See  Lloyd  v.  Hamilton,  52  Indiana:    Davidson  v.  Koehler,  76 

La.  Ann.  861,  27  So.  275.  Ind.  398. 

"Adams  v.  Dendy,  82  Miss.  135,  Louisiana:   Pecot  v.  Police  Jury, 

33  So.  843.  41  La.  Ann.  707,  6  So.  677. 

44  Conyers  v.  Commission  of  Roads,  Missouri:    Atlantic  &   Pacific  R. 
116  Ga.  101,  42  S.  E.  419.  Co.  v.  City  of  St.  Louis,  66  Mo.  228. 

45  McHugh  v.  Louisville  Bridge  Co.,  Ohio:  Allbyer  v.  State,  10  Ohio  St. 
23  Ky.  L.  Rep.  1546,  65  S.  W.  456.  588. 

4"  Ulbrecht  v.  City  of  Keokuk,  124  48  State  v.  City  of  Bangor,  98  Me. 

Iowa,  1,  97  N.  W.  1082.  114,    56    Atl.    589;    Farnsworth    v. 

47  California:  Nevada  School  Dist.  Lime  Rock  Rd.  Co.,  83  Me.  440,  22 

v.  Shoecraft,  88  Cal.  372,  26  Pac.  211;  Atl.  373.     See  Atlantic  &  Pacific  R. 

Meade  v.  Watson,  67  Cal.  591,  8  Pac.  Co.    v.    City   of   St.   Louis,   66  Mo. 

311,  314.  228. 

Colorado:    People,  Dean,  v.  Board  4B  Covington,  City  of,  v.  District  of 

of  County  Commissioners  of  Grand  Highlands,  24  Ky.  L.  Rep.  433,  68 

County,  6  Colo.  202.  S.  VV.  669. 

Illinois:    Covington     v.   City     of  ;o  Commonwealth  v.  Porter,  24  Ky. 

East  St.  Louis,  78  111.  548.  L.  Rep.  364,  68  S.  W.  621. 

22  337 


§  216  CONSTITUTIONAL   LAW — INTERPRETATION 

be  continued  in  force  by  an  express  provision  continuing  in 
force  all  laws  until  repealed  or  altered.51  If  the  charter  of  a 
corporation  exempts  it  from  taxation  such  exemption  includes 
assessments  made  before  the  taking  effect  of  a  constitution 
repealing  the  exemption,  and  also  the  right  to  exemption  for 
taxes  so  assessed  for  the  year  during  which  the  constitution 
took  effect.52 

§  216.  Contemporaneous  Construction — Extrinsic  Matters 
— History — Debates   and   Proceedings   in  Convention. — In 

cases  of  doubt  as  to  the  interpretation  or  construction  of  a 
provision  of  the  constitution,  its  contemporaneous  and  prac- 
tical construction  may  be  considered  in  aid  thereof.53  So  the 
contemporaneous  interpretation  in  the  "  Federalist "  and  the 
original  judiciary  act  is  entitled  to  much  weight; 54  and  the 
nature  and  objects  of  the  particular  powers,  duties  and  rights 
should  be  considered,  with  all  the  lights  and  aids  of  contem- 
porary history,55  or  the  history  of  its  passage  through  the  con- 
vention,56 or  of  the  times  when  it  was  passed  or  adopted,57 
and  of  well-known  conditions  then  existing.58  The  views  or 
debates  of  the  framers  of  the  constitution  cannot  be  con- 

51  State  v.  O'Neil  Lumber  Co.,  170  5e  Minnesota  &  Pacific  Rd:  Co.  v. 
Mo.  7,  70  S.  W.  121.  Sibley,  2  Minn.  13,  19. 

52  Newport  v.  Masonic  Temple  "  Toncray  v.  Budge  (Idaho,  1908), 
Assoc,  20  Ky.  L.  Rep.  266,  269,  45  92  Pac.  26;  Funkhouser  v.  Spahr,  102 
S.  W.  881,  46  S.  W.  697.  Va.  306,  46  S.  E.  378,  quoting  from 

53  Eastman  v.  Clackamas  County  United  States  v.  Trans-Missouri 
(C.  C),  32  Fed.  24;  Howell  v.  State,  Freight  Assn.,  166  U.  S.  318,  17  Sup. 
71  Ga.  224,  51  Am.  Rep.  259;  Allen  Ct.  550,  41  L.  ed.  1007;  United 
v.  Clayton,  63  Iowa,  11,  18  N.  W.  States  v.  Union  Pacif.  Rd.  Co.,  91 
663;  Chesapeake  &  Ohio  R.  Co.  v.  U.  S.  72,  23  L.  ed.  224;  Queen  v. 
Miller,  19  W.  Va.  408.  See  Cohen  v.  Hertford  College,  3  Q.  B.  Div.  707, 
Virginia,  6  Wheat.  (19  U.  S.)  418,  per  Coleridge,  Lord  Chief  Justice. 
420,  per  Marshall,  C.  J.  Compare  See  Maynard  v.  Board  of  Canvas- 
State  ex  rel.  Chamberlain  v.  Daniel,  sers,  84  Mich.  228,  238,  47  N.  W. 
17  Wash.  Ill,  117,  49  Pac.  243.  756,   43  Alb.   L.  J.   389,    11    L.    R. 

54  Cohens  v.  Virginia,  6  Wheat.  A.  332;  People  v.  Gies,  25  Mich. 
(19  U.  S.)  264,  5  L.  ed.  257.  83. 

65  Prigg  v.  Pennsylvania,  16  Pet.  58  Toncray  v.  Budge  (Idaho,  1908), 
(41  U.  S.)  539,  10  L.  ed.  1060.  92  Pac.  26. 

338 


OR   CONSTRUCTION   OF   CONSTITUTIONS  §   217 

sidered ; 59  nor  can  debates  on  the  passage  of  an  act  be  accepted 
as  evidence  of  the  meaning  of  a  clause  in  the  constitution.60 
It  is  held,  however,  that  debates  or  proceedings  of  a  consti- 
tutional convention  may  be  considered  in  a  limited  degree, 
although  they  are  unsafe  as  a  guide.61  It  is  also  decided  that 
such  proceedings  are  valuable  as  an  aid  in  ascertaining  the 
intent  of  doubtful  provisions,  but  that  the  terms  of  the  con- 
stitution cannot  be  varied  thereby;62  nor  can  express  con- 
stitutional provisions  be  construed  away  by  resort  to  the  con- 
vention proceedings.63 

§  217.  Contemporaneous  Construction  Continued — Legis- 
lative Construction. — Although  the  legislature  has  the  same 
right  as  have  the  courts  to  construe  a  constitutional  provision,64 
yet  it  cannot  bind  the  courts  by  its  interpretation ; 65  nor  will 
a  legislative  construction  control  unambiguous  and  clearly 
expressed  provisions  of  the  constitution.66  But  in  case  of  a 
doubtful  constitutional  provision  a  legislative  interpretation 
will  be  considered  or  availed  of  as  an  aid  to  construction  when 
contemporaneous  with  the  adoption  of  the  constitution,67 
and   such   contemporaneous   interpretation   is   a  strong  pre- 

59Funkhouser  v.   Spahr,    102  Va.  M  Starne  v.  People,  222  111.   189, 

306,    46    S.    E.    378,    quoting    from  78  N.  E.  61. 

United  States  v.  Union  Pac.  R.  Co.,  64  Selma  &  Gulf  Rd.  Co.,  Ex  parte, 

91  U.  S.  72,  23  L.  ed.  224;  United  45  Ala.  696,  6  Am.  Rep.  722. 

States     v.     Trans-Missouri     Freight  65  State,  Kenner,  v.  Spears  (Tenn. 

Assn.,    166    U.    S.    318,    41    L.   ed.  Ch.  App.,  1899),  53  S.  W.  247.    See 

1007.  State  ex  rel.  Chamberlain  v.  Daniel, 

•°  District  of  Columbia  v.   Wash-  17  Wash.  Ill,  117,  49  Pac.  243. 

ington  Market  Co.,   108  U.  S.  243,  68  State,    Bibbard,    v.   Cornell,   60 

2  Sup.  Ct.  — ,  27  L.  ed.  714.  Neb.  276,  83  N.  W.  72.    See  Griffin  v. 

81  Rasmusser  v.  Baker,  7  Wyo.  Rhoton  (Ark.,  1907),  107  S.  W.  380; 
117,  38  L.  R.  A.  773,  50  Pac.  819.  State,    Chamberlain,    v.    Daniel,    17 

82  Epping  v.  City  of  Columbus,  117  Wash.  1 11,  49  Pac.  243;  Fairbanks  v. 
Ga.  263,  43  S.  E.  803.  See  Wiscon-  United  Stales,  181  U.  S.  283,  21  Sup. 
sin  Central  R.  Co.  v.  Taylor,  52  Wis.  Ct,  648,  45  L.  ed.  862. 

37,  8  N.  W.  833;  Wulff  v.  Aldrich,  124  "  Board  of  Railroad  Commrs.   v. 

111.    591,    16   N.    E.    886.      Examine  Market    St.    Hy.   Co.,  132   Cal.   677, 

Richardson  v.  Treasure  Hill  Mining  64    Pac.    1065;   People,    Livesay,    v. 

Co.,  23  Utah,  367,  65  Pac.  74.  Wright,  6  Colo.  92,  97;  State,   Hib- 

339 


§   218  CONSTITUTIONAL   LAW — INTERPRETATION 

sumption  in  favor  of  the  constitution; 68  it  is  of  great  force;69 
and  where  the  question  is  one  in  which  a  liberal  construction 
may  be  made  the  legislative  construction  will  not  be  con- 
demned unless  it  very  clearly  appears  that  it  is  wrong;70  it 
should  also  be  followed  so  as  to  give  effect  to  a  constitutional 
provision  if  it  can  be  done  without  violence  to  a  fair  interpre- 
tation of  the  words  employed ; 71  and  an  act,  in  execution  of  a 
constitutional  power,  passed  by  the  first  legislature  after  the 
adoption  of  the  constitution,  is  a  cotemporary  interpretation 
of  the  latter  entitled  to  much  weight.72 

§  218.  Construction  or  Interpretation  Long  Continued 
and  Acquiesced  in  by  Legislative  and  Executive  Depart- 
ments.— A  contemporaneous  construction  of  the  constitution, 
practiced  and  acquiesced  in,  for  a  period  of  years,  fixes  the 
construction,  and  the  courts  will  not  shake  or  control  it.73 
So  practical  construction  for  a  long  period  of  time  is  conclu- 
sive of  the  meaning  of  a  constitution  in  cases  otherwise  doubt- 
ful.74 Again,  a  long  continued  and  uniform  interpretation, 
put  by  the  executive  and  legislative  departments  of  the  gov- 
ernment, upon  a  clause  of  the  constitution  should  be  followed 
by  the  judicial  department,  unless  such  interpretation  be 
manifestly  contrary  to  its  letter  or  spirit.75    And  where  the 

bard,    v.   Cornell,   60   Neb.    276,    83  73  Stuart  v.  Laird,  1  Cranch  (5  U. 

N.  W.  72.     Compare  State  ex  rel.  S.),  299,  2  L.  ed.  115. 

Chamberlain,  17  Wash.  Ill,  117,  49  74  French    v.    State,    Harley,    141 

Pac.  243.  Ind.  618,  29  L.  R.  A.  113,  41  N.  E.  2. 

68  State,  Guerguin,  v.  McAllister,  See  also  Dred  Scott  v.  Sandford,  19 
88  Tex.  284,  28  L.  R.  A.  523,  31  S.  W.  How.  (60  U.  S.)  393,  616,  15  L.  ed. 
187.  Compare  Griffin  v.  Rhoton  691  (practical  construction  through 
(Ark.,  1907),  107  S.  W.  380.  long  years  and  in  doubtful  cases  de- 

69  People,  Mooney,  v.  Hutchinson,  termines  judicial  mind);  State  v. 
172  111.  486,  30  Chic.  Leg.  N.  303,  Gerhardt,  145  Ind.  439,  44  N.  E. 
50  N.  E.  599,  40  L.  R.  A.  770.  469,    33    L.   R.   A.   313     (legislative 

70  Selma  &  Gulf  Rd.  Co.,  Ex  parte,  practice  continued  and  acquiesced  in 
45  Ala.  696,  6  Am.  Rep.  722.  for  a  long  period  of  time  controls  the 

71  State  v.  Tingey,  24  Utah,  225,  67  construction  of  a  constitution  in 
Pac.  33.  cases  of  doubt);  Faribault,  City  of, 

72  Cooper  Mfg.  Co.  v.  Ferguson,  113  v.  Misener,  20  Minn.  396;  Moers  v. 
U.  S.  727,  28  L.  ed.  1137,  5  Sup.  Ct.  Reading,  21  Pa.  188. 

739.  7S  Downes    v.  Bidwell,   182   U.  S. 

340 


OR   CONSTRUCTION   OF   CONSTITUTIONS  §   219 

legislature  or  officers  intrusted  with  the  duty  of  carrying  out 
the  provisions  of  a  paragraph,  have  given,  unquestioned  for 
a  long  time,  a  construction  to  such  paragraph  such  interpre- 
tation so  acquiesced  in  will  be  of  great  force.76  But  a  prac- 
tice of  officials  of  a  state  penal  institution  is  not  such  a  con- 
temporaneous and  practical  construction  as  to  be  obligatory 
upon  the  courts.77  Where  the  constitution  prohibits  the  crea- 
tion of  corporations  by  special  acts  the  exercise  of  the  power 
to  regulate  corporations  by  special  acts,  continued  by  the  leg- 
islature and  acquiesced  in  for  a  long  period  of  time,  is  of  force 
in  construing  such  constitutional  provision.78  So  great  weight 
should  be  given  to  legislative  construction,  extending  over  a 
long  period  of  time,  of  identical  provisions  in  two  state  con- 
stitutions.79 And  a  construction  of  identical  clauses  in  two 
constitutions  of  exemption  from  license  taxation  by  a  legis- 
lative imposition  of  license  taxes  on  the  business  of  public  serv- 
ice corporations  for  a  number  of  years  should  be  given  great 
weight.80 

§  219.  Long  and  Continued  Usage. — Prior  well-known  us- 
ages and  practices  are  to  be  considered  in  construing  constitu- 
tions.81 But  the  rule  of  construction  by  long  and  continued 
usage  should  be  applied  to  a  constitutional  provision  only  in 
cases  of  doubt.82 


244,  21  Sup.  Ct.  770,  45  L.  ed.  1088.  sie,  153  Ind.  460,  53  N.  E.  950,  47  L. 

See  People,  Mooney,  v.  Hutchinson,  R.  A.  489,  55  N.  E.  224. 

172  111.  486,  30  Chic.  Leg.  N.  303,  50  79  Victoria   Lumber  Co.   v.   Rives, 

X.  I ■!.  599,  40  L.  R.  A.  770.  115  La.  996,  40  So.  382. 

79  Epping  v.  City  of  Columbus,  117  s0  State    v.    New    Orleans    Ry.    & 

Ga.  263,  43  S.  E.  803.  Light  Co.,  116  La.  144,  40  So.  597. 

77  M.-mthey  v.  Vincent,  145  Mich.  81  Johnston  v.  State,  Sefton,  128 
327,  13  Det.  L.  N.  465,  108  N.  W.  Ind.  16,  12  L.  R.  A.  235,  27  N.  E. 
667.  422. 

78  Indianapolis  v.  Navin,  151  Ind.  Usages  of  government  to  be  con- 
139,  41  L.  R.  A.  337,  14  Nat.  Corp.  sidered.  State  v.  Sorrells,  15  Ark. 
Etep.  771.  17  X.  E.  525,  151  End.  156,  664. 

30  Chic.  Leg.  N.  414,  5  Det.  L.  N.  82  Pingrce  v.   Dix,  Auditor   Genl., 

Xo.  19,  II  f>.  R.  A.  344,  51  X.  E.  80.  120  Mich.  95,  44  L.  R.  A.  679,  6  Det. 

Compare  Bank  of  Commerce  v.  Wilt-  L.  N.  45,  78  N.  W.  1025. 

341 


§    220  CONSTITUTIONAL    LAW — INTERPRETATION 

§  220.  Amendments  to  Constitution. — An  amended  con- 
stitution should  be  interpreted  in  connection  with  what  has 
preceded,  and  the  necessity  and  object  of  the  change  will  be 
considered.  When  new  provisions  are  so  inserted  into  a  con- 
stitution regard  should  be  had  to  their  nature  and  purpose,  and 
a  fair  and  legitimate  meaning  should  be  given  so  that  the  ob- 
jects intended  may  be  accomplished.83  In  determining  the 
intent  of  a  constitutional  amendment  reference  may  be  had 
to  the  surrounding  conditions  in  respect  to  the  matter  to  which 
the  amendment  relates,  and  also  to  the  history  of  general  legis- 
lation concerning  the  matter.84  A  constitutional  amendment 
will  also  be  construed  so  as  to  reconcile  provisions  of  the 
amended  constitution  in  conflict  therewith.85  Again,  a  repeal  of 
one  section  of  a  constitution  is  effected  by  an  amendment 
which  is  repugnant  thereto.86  But  a  distinction  exists  between 
embodying  a  statute  in  a  constitution  by  an  amendment 
thereto  and  an  amendment  which  makes  constitutional  and 
validates  a  statute  which  still  remains  only  ordinary  legis- 
lation. And  the  conditions  embodied  in  a  petition  for  an 
election,  a  legislative  act  and  constitutional  amendment  to 
carry  out  a  tax  scheme,  such  conditions  being  made  a  part  of 
all  the  proceedings,  and  the  enactment  and  amendment  being 
drafted  by  the  promoters  of  the  scheme,  become  conditions  of 
the  amendment  to  which  the  tax  adopted  into  the  constitution 
is  subject.87  A  title  insurance  company,  organized  under  a 
special  act  prior  to  the  adoption  of  a  constitution  but  there- 

83  Steele  v.  County  Commissioners,        88  Bray  v.   Florence  City  Council, 

83  Ala.  304,  3  So.  761;  Minnesota  &  62  S.  C.  17,  39  S.  E.  810. 
Pacific  Rcl.  Co.  v.  Sibley,  2  Minn.  13.        87  State,  Saunders,  v.  Kohnke,  109 

"State,  Getchell,  v.  O'Connor,  81  La.  838,  33  So.  793. 
Minn.  79,  83,  83  N.  W.  498,  citing        The  words  "ratify"  and  "approve" 

Church   of   Holy   Trinity   v.    United  are  not,  in  their  abstract  meaning,  the 

States,  143  U.  S.  457,  459,   12  Sup.  equivalent     of    such     terms     as     "to 

Ct.  511,  36  L.  ed.  226;  United  States  adopt"     or     "to     incorporate     into." 

v.  Union  Pacific  R.  Co.,  91  U.  S.  72,  Hence  a  statute  ratified  and  approved 

79,  23  L.  ed.  224;  Croomers  v.  State,  by    a    constitutional    amendment    is 

40  Tex.  Cr.  App.  672,  51  S.  W.  927.  not    necessarily   embodied   into   the 

85  Chicago,  City  of,  v.  Reeves,  220  constitution,   but    may   have     been 

111.  274,  77  N.  E.  237.  thereby  simply  validated,  and  made 

342 


OR   CONSTRUCTION   OF   CONSTITUTIONS       §§  221-223 

after  repealed,  does  not,  by  failure  to  accept  such  later  con- 
stitution," become  estopped  to  deny  that  it  continues  to  ex- 
ercise the  special  privileges  granted  by  its  legislative  charter 
and  amendments  thereto.88 

§  221.  Title  of  Legislative  Enactment  Proposing  Consti- 
tutional Amendment. — The  title  of  a  legislative  enactment 
proposing  an  amendment  of  a  constitution  may  be  resorted  to 
as  an  aid  to  the  construction  of  that  section  of  the  constitu- 
tion to  which  it  relates.89 

§  222.  Revised  Constitution — Re-enactment. — If  a  con- 
stitution is  revised,  a  re-enactment  in  the  same  language  will 
be  regarded  as  adopting  a  prior  construction  of  the  preceding 
constitution.90 

§  223.  Constitution  Adopted  from  Another  State — Con- 
struction.— Where  a  constitution,  or  constitutional  provision, 
has  been  adopted  from  another  State  it  is  presumed  that  the 
construction  or  judicial  interpretation  given  and  established 
there  is  the  sense  in  which  it  was  adopted,  and  such  construc- 

constitutional,   remaining  still  noth-  ment.     Such  an  amendment  may  be 

ing  more  than  mere  valid  ordinary  proposed  to  the  people  by  joint  reso- 

legislation.      But   where,    in    a   con-  lution  of  the  legislature.     Julius  v. 

atitutional  amendment,  a  statute  is  Callahan,  63  Minn.  154,  65  N.  W.  267. 

ratified  and  approved,  and  a  clause  is  But  such  title  may  be  looked  to  nev- 

added    reserving    to    the    legislature  ertheless  for  the  purpose  of  ascertain- 

the  right  to  amend  the  statute  in  cer-  ing  the  intent  of  the  law.     This  is  a 

tain  specified  respects,  t lien  the  words  universal  rule,  and  applies  where  no 

become  charged  with  :i  special  mean-  title  is  required.      Wilson  v.  Spauld- 

ing,  and  the  statute  does  go  into  the  ing    (C.    C),    19    Fed.    304;    Tinted 

constitution,  except  in  so  far  as  the  States  v.  Carbery,  2  Cranch  (C.  C), 

right  to  amend  is  reserved  to  the  leg-  358;  Fed.  Cas.  No.  14,720;  Chirk  v. 

islature.    State,  Saunders,  v.  Kohnke,  Mayor,    29    Md.    277,    285;    United 

L09  La.  838,  33  So.  793.  States  v.  Palmer,  3  Wheat.  (16  U.S.)' 

M  Bager  v.  Kentucky  Title  Co.,  27  610,  i  I,,  ed.  171;  Page  v.  Young,  106 

Ky.  L.  Hep.  346,  85  S.  W.  is:;.  Mass.  313."  Id.,  85,  per  Brown,  .1. 

3tate,  Getchell,  v.  O'Connor,  81  ""California:     Lord     v.     Duhster, 

Minn.  79,  83,  85,  S3  N.  W.  498.     "It  79  Cal.  477.  21    Pac.  865. 

is  true   thai   un  title  is  required  to  Indiana:  Mclntire  v.  State   (Ind., 

a    proposed    constitutional    amend-  L908),  83  N.  W.  loo.".. 

343 


§§    224,    225      CONSTITUTIONAL    LAW — INTERPRETATION 

tion  or  interpretation  should  be  followed.91  It  may  also  be 
assumed  that  the  convention  adopting  a  provision  of  a  con- 
stitution from  another  State  was  conversant  with  a  judicial 
construction  placed  thereon  by  the  latter  State  previous  to 
such  adoption.92 

§  224.  Former  Constitution  Repealed  by  Implication. — A 

former  constitution  is  repealed  by  implication  by  a  later  one 
so  far  as  inconsistent.93 

§  225.  Whether  Constitutional  Provisions  Self-Execut- 
ing.— The  determination  of  the  question  whether  or  not  a 
constitutional  provision  is  self-executing  rests  upon  the  inten- 

Iowa:     McGregor,    Town    of,     v.  1900),  60  Pac.  1086.     See  People  v. 

Baylies,  19  Iowa,  43.  Coleman,  4  Cal.  46,  60  Am.  Dec.  581; 

Louisiana:     State     v.    Board    of  Commonwealth  v.  Hartnett,  3  Gray 

Assessors,  35  La.  Ann.  651.  (69  Mass.),  450. 

Missouri:    Sanders   v.    St.    Louis  93  State,  Childs,  v.  Board  of  County 

&    New    Orleans    Anchor    Line,    97  Commissioners    of    Crow    Wing,    66 

Mo.  26,   10  S.  W.  595,  3  L.  R.  A.  Minn.    519,    68   N.    W.    767.      "The 

390.  later   adopted    constitutional    provi- 

Wisconsin:     Attorney     Genl.    v.  sion  will,  so  far  as  inconsistent  with 

Brunst,  3  Wis.  787.  a  former  one,  repeal  it  by  implication, 

If  the  language  of  a  constitution  just  as  a  later  statute  will  repeal  by 
is  carried  into  a  later  one  by  re-  implication  a  former  one.  Such  re- 
enactment,  the  construction  of  such  peals  by  implication  are  not  favored." 
language  as  then  adopted  by  the  Id.,  525,  per  Canty,  J. 
courts  will  control  in  the  later  con-  See  also  the  following  cases: 
stitution.  Morton  v.  Broderick,  118  United  States:  Sands  v.  Manis- 
Cal.  474,  50  Pac.  644.  tee  River  Imp.  Co.,  123  U.  S.  288,  8 

91  Colorado:  Lace  v.  People  (Colo.,  Sup.  Ct.  113,  31  L.  ed.  149;  Escanaba 
1908),  95  Pac.  302.  &    Lake    Michigan    Transp.    Co.    v. 

Idaho:  Stein  v.  Morrison,  9  Idaho,  Chicago,  107  U.  S.  678,  27  L.  ed.  442, 

426,  75  Pac.  246.  2  Sup.  Ct.  185. 

Mississippi:   Daily  v.   Swope,  47  Arkansas:   State  v.  Cox,  3  Eng. 

Miss.  367.  (8  Ark.)  436. 

Nevada:    State    v.    Parkinson,    5  Louisiana:    Sigur  v.  Crenshaw,  8 

Nev.  15.  La.  Ann.  401. 

Wisconsin:      Attorney    Genl.    v.  New  York:  People  v.  Angle,   109 

Brunst,  3  Wis.  787.     See  Wisconsin  N.  Y.  564,  17  N.  E.  413. 

Cent.  R.  Co.  v.  Taylor,  52  Wis.  37,  8  Oregon:    Wood    v.    Fitzgerald,    3 

N.  W.  833.  Oregon,  568. 

92  State    ex    rel.    State    Board    of  Texas :  Cox  v.  State,  8  Tex.  App. 
Equalization     v.      Fortune     (Mont.,  254,  34  Am.  Rep.  746. 

344 


OR    CONSTRUCTION    OF    CONSTITUTIONS 


§  225 


tion  of  the  persons  framing  and  adopting  the  constitution,  and 
such  intention  is  to  be  determined  by  the  language  used  and 
the  surrounding  circumstances.94  If,  therefore,  a  constitu- 
tional provision  is  complete  in  itself,  and  evidences  an  intent 
to  prescribe  in  itself  a  rule,  the  application  of  which  will  put 
into  operation,  it  is  self-executing;95  and  it  would  seem  that  if 

94  Illinois  Central  R.  Co.  v.  Ihlen-  tered  into  before  the  decisions  of  the 
berg,  75  Fed.  873,  876,  877,  43  U.  S.  Supreme  Court  of  Mississippi.  An 
App.  726,  21  C.  C.  A.  546,  34  L.  R.  A.  examination  of  the  case  of  Groves  v. 
393.  In  this  case  it  is  said  by  the  Slaughter  and  the  reasoning  of  the 
court,  per  Taft,  Cir.  J.,  that:  "In  court  leaves  no  doubt  that  the 
Groves  v.  Slaughter,  15  Pet.  (40  U.  question  for  consideration  is  one  of 
S.)  449,  10  L.  ed.  800,  the  question  the  intention  of  the  persons  fram- 
was  whether  the  language  of  the  con-  ing  and  adopting  the  constitution, 
stitution  of  Mississippi  providing  that  There  is  nothing  in  Groves  v.  Slaugh- 
the 'introduction  of  slaves  into  that  ter,  to  justify  the  claim  that  a  const i- 
State,  as  merchandise,  or  for  sale,  tution  may  not  contain  self-executing 
should  be  prohibited,  from  and  after  provisions.  It  may  be  conceded  that 
the  first  day  of  May,  1833/  was  self-  it  is  usually  a  declaration  of  funda- 
executing,  or  was  directed  to  the  mental  law,  and  that  many  of  its  pro- 
legislature,  and  required  legislative  visions  are  only  commands  to  the 
action  before  it  should  become  oper-  legislature  to  enact  laws  to  carry  out 
ative  upon  contracts  and  persons,  the  purposes  of  the  framers  of  the 
The  question  arose  in  the  Supreme  constitution,  and  that  many  are  mere 
Court  of  the  United  States  with  ref-  restrictions  upon  the  power  of  the 
erence  to  its  effect  upon  contracts  legislature  to  pass  laws;  but  that  it 
made  in  the  State,  and  it  was,  there-  is  entirely  within  the  power  of  those 
fore,  determined  by  a  divided  court  who  confirm  and  adopt  the  constitu- 
that  the  clause  was  not  self-executing,  tion  to  make  any  of  its  provisions 
Subsequently  the  court  of  errors  of  self -executing  is  too  clear  for  argu- 
Mississippi  in  Green  v.  Robinson,  5  ment.  Hence  it  is  a  question  always 
How.  (Miss.)  80,  in  Glidewell  v.  of  intention  to  be  determined  by  the 
Hite,  Id.,  110,  and  Brien  v.  William-  language  used  and  the  surrounding 
son,  7  How.  (Miss.)  14,  refused  to  circumstances." 
follow  the  decision  of  the  Supreme  95  Acme  Dairy  Co.  v.  City  of  As- 
Court  of  the  United  States  held  and  toria  (Oreg.,  1907),  90  Pac.  153.  See 
that  the  clause  was  self-executing.  Davis  v.  Burke,  179  U.  S.  399,  21 
Thereafter  another  case  involving  Sup.  Ct.  210,  45  L.  ed.  249. 
the  effect  of  the  clause  upon  con-  "A  constitutional  provision  maybe 
tracts  made  before  the  decision  of  the  said  to  be  self-executing  H  it  supplies 
Supreme  Court  in  Mississippi  was  a  sufficient  rule  by  means  of  which 
considered  in  Rowan  v.  Runnels,  5  the  right  given  may  be  enjoyed  and 
How.  (46  U.  S.)  134,  12  L.  ed.  85,  protected,  or  the  duty  imposed  may 
and  the  Supreme  Court  of  the  1  Hite. I  he  enforced;  and  it  is  not  self-execu- 
States  refused  to  change  its  ruling  ting  when  it  merely  indicates  prin- 
with   respect   to  those   contracts  en-    ciples,  without  laying  down  rules  by 

345 


§  226  CONSTITUTIONAL    LAW — INTERPRETATION 

the  language  of  such  provision  obviously  points  to  something 
more  to  be  done,  such  as  legislative  action,  and  does  not  withiri 
itself  contain  a  governing  or  controlling  rule  for  its  enforce- 
ment, it  is  not  self-executing,95  although  it  may  be  self-execu- 
ting to  a  certain  extent,  even  though  it  is  expressly  required 
that  the  legislature  shall  provide  a  penalty  for  a  specified  pro- 
hibited act.97 

§  226.  When  Constitutional  Provision  Is  Self-Executing — 
Instances. — A  constitutional  provision  is  self-executing:98 
where  it  clearly  fixes  the  individual  responsibility  of  a  bank 
officer  or  director,  who  assents  to  a  receipt  of  deposits  after 
knowledge  of  the  bank's  insolvent  condition,  and  there  is  no 
necessity  for  legislation,  especially  where  a  sufficient  remedy  by 
civil  action  is  provided  under  the  general  laws;99  where  it 
specifies  the  extent  of  the  individual  liability  of  stock- 
holders of  a  banking  corporation ; '  where  the  requirement  is 
that  certain  books  of  a  corporation  shall  be  kept  for  public 
inspection,  and  that  corporations  shall  keep  an  office  in  the 
State  when  they  are  engaged  in  business  therein ; 2  where  a  pro- 
hibition therein  as  to  foreign  corporations  doing  business  in  a 
State  needs  no  legislative  action  to  carry  it  into  effect ; 3  where 
certain  requirements  as  to  taxation  are  mandatory;4  where  it 

means  of  which  those  principles  may  "  Mallon  v.  Hyde,  76  Fed.  388. 

be  given  the  force  of  law."     Cooley's  '  Farmers'  Loan  &  T.  Co.  v.  Funk, 

Const.  Lim.  (7th  ed.)  p.  121.  49  Neb.  353,  68  N.  W.  520. 

96  Groves  v.  Slaughter,  15  Pet.  2  State,  Bourdette,  v.  New  Orleans 
(40  U.  S.)  449,  10  L.  ed.  800;  Mercur  Gaslight  Co.,  49  La.  Ann.  1556,  22 
Gold  Min.  &  Mill.  Co.  v.  Spry,   16  So.  815. 

Utah,  222,  52  Pac.  382.  3  American    Union    Teleg.    Co.    v. 

97  Quinlan  v.  Smye,  21  Tex.  Civ.  Western  Union  Teleg.  Co.,  67  Ala.  26, 
App.  156,  50  S.  W.  1068.  42  Am.  Rep.  90. 

98  Day  v.  Day  (Idaho),  86  Pac.  531;  4  Railroad  &  Teleph.  Cos.  v. 
Merchants'  Police  &  Dist.  Teleg.  Co.  Board  of  Equalization  (C.  C),  85  Fed. 
v.  Citizens'  Telephone  Co.,  29  Ky.  L.  302,  citing  Hyatt  v.  Allen,  54  Cal. 
Rep.  512;  Spratt  v.  Helena  Power  &  353;  St.  Joseph  Board  of  Pub. 
Trans.  Co.  (Mont.,  1908),  94  Pac.  Schools,  62  Mo.  444;  Reelfoot  Lake 
631.  Central  Iron  Works  v.  Penn-  Levee  Dist.  v.  Dawson,  97  Tenn. 
sylvania  R.  Co.,  2  Dauph.  Co.  Rep.  160,  34  L.  R.  A.  725. 

(Pa.)  308. 

346 


OR   CONSTRUCTION   OF   CONSTITUTIONS  §   227 

prohibits  taking  or  damaging  private  property  for  public  use 
without  just  compensation;5  where  discrimination  as  to  re- 
ceiving, handling  and  charging  for  freight,  and  as,  to  the  man- 
ner of  payment  is  prohibited  under  penalty;6  where  it  requires 
that  a  city  shall  receive  bids  before  granting  a  franchise  for  the 
use  of  its  streets; 7  and  where  street  railway  companies  are  re- 
quired to  pave  their  right  of  way,  and  in  case  of  refusal  the 
cost  thereof  is  to  be  paid  by  levy  of  an  assessment.8 

§  227.  When  Constitutional  Provision  Is  Not  Self-Exe- 
cuting— Instances. — A  provision  of  the  state  constitution 
which  declares  the  right  of  any  corporation  or  individual  to 
construct  and  maintain  lines  of  telegraph  and  telephone  upon 
the  streets  and  highways  within  the  State,  that  such  lines 
shall  be  common  carriers,  and  that  the  right  of  eminent  do- 
main is  extended  to  them,  is  not  self-operative,  but  by  its  own 
terms  imposes  the  duty  upon  the  legislature  of  providing  by 
general  law  reasonable  regulations  to  give  effect  to  the  sec- 
tion, and  hence  confers  no  power  to  use  the  streets  and  highways 
other  than  as  the  legislature  may  provide.9  Nor  is  a  constitu- 
tional provision  self-executing,  where  its  language  is  that  laws 
shall  be  made  to  provide  for  the  enforcement  thereof;10  nor 
where  the  legislature  is  directed  to  make  provision  for  a  specific 
purpose,  or  to  carry  out  a  designated  matter;  n  nor  where  a 
provision  amending  a  constitution  requires  that  certain  laws 
shall  be  enacted  by  the  legislature  and  also  a  general  election 

5Searle  v.  Lead,  10  S.  Dak.  312,  "Lincoln  St.   Ry.   Co.   v.   City  of 

39  L.  R.  A.  345,  73  N.  W.  101.  Lincoln,  61  Neb.  109,  84  N.  W.  802. 

6  Louisville  &  Nashville  R.  Co.  v.  9  State  ex  rel.  Spokane  &  British 
Commonwealth  (Ky.),  46  S.  W.  702,  Columbia  Teleph.  &  Teleg.  Co.  v. 
modified,  L05  Ky.  179,  20  Ky.  L.  City  of  Spokane,  24  Wash.  53,  63 
Rep.  1099,  48  S.  W.  416,  43  L.  R.  Pac.  116,  7  Am.  Elec.  Cas.  96.  See 
A.  550.  also  State  v.  City  of  Helena  (Mont., 

Regulation    of   rates,    see'  City    <>f  L906),  85  Pac.  744. 
Tampa   v.    Tampa    Waterworks   Co.        ,0  Chittenden   v.   Wurster,    152  N. 

(I  la..  1903),  :'.l  So.  631.  Y.  345,  46  N.  E.  857,  47  N.  E.  273, 

7  Merchants'  Police  &  Diet.  Teleg.  :M  L.  R.  A.  809,  29 Chic.  Leg.  N.  298, 
Co.  v.  Citizens'  'I'd.. ph.  Co.,  29  Ky.  300,  rey'g  43  N.  Y.  Supp.  1035,  77 
L.  Rep.  512,  93  S.  W.  642.  N.  Y.  St.  R.  1035.  14  App.  Div.  183. 

"  Harris  v.  Kill,  108  111.    \|>|>.  305. 


Ml 


§  227  CONSTITUTIONAL   LAW — INTERPRETATION 

held  before  it  can  go  into  full  force  and  effect ; 12  nor  where  it 
relates  to  foreign  corporations  having  a  known  place  of  business 
in  the  State  and  also  an  authorized  agent;13  nor  where  it  re- 
quires that  the  legislature  shall  prescribe  regulations  and  pen- 
alties ; 14  nor  where  it  gives  a  railroad  company  the  right  to 
intersect,  connect  with,  or  cross  any  other  railroad,  at  least 
so  in  the  sense  that  its  charter  powers  cannot  be  ignored; 15 
nor  where  it  prohibits  discrimination  by  railroads,  also  monop- 
olies, and  combinations,  but  provides  that  the  legislature  shall 
enforce  such  provisions  by  laws; 16  nor  where  in  addition  to  a 
provision  as  to  stockholder's  individual  liability  as  security 
for  dues  from  a  corporation,  recourse  is  to  be  had  to  such  other 
means  as  shall  be  provided  by  law; 17  nor  where  the  express 
requirement  is  that  the  legislature  shall  provide  by  law  and 
prescribe  regulations  as  to  taxation;  18  nor  where  the  mode 
or  manner  of  taxation  is  to  be  that  provided  by  law; 19  nor 
where  it  specifies  that  the  value  of  property  for  taxation  is  to 
be  ascertained  as  provided  by  law ; 20  nor  where  it  requires  that 
the  legislature  shall  by  general  law  exempt  certain  property 
from  taxation; 21  nor  where  a  provision  only  specifies  that 
power  "may"  be  vested  to  assess  and  collect  taxes.22 

12  Blake  v.  Ada  County  Commrs.  Chic.  Leg.  N.  167,  42  L.  R.  A.  804, 
(Idaho),  47  Pac.  734.  52  N.  E.  346,  17  Nat.  Corp.  Rep.  644, 

13  St.  Louis  A.  R.  Co.  v.  Fire  Assoc.,  10  Am.  &  Eng.  Corp.  Cas.  (N.  S.)  71, 
60  Ark.  325,  30  S.  W.  350,  28  L.  R.  A.  68  Am.  St.  Rep.  194;  Woodworth  v. 
83.  Bowles,  61   Kan.  569,  60  Pac.  331. 

u  State  v.  Bradford  (S.  Dak.),  80  See  Eau  Claire  Nat.  Bank  v.  Benson, 

N.  W.  143,  aff'd  83  N.  W.  47,  citing  106  Wis.  624,  82  N.  W.  604. 
numerous  cases.  18  State  Board  of  Tax  Commrs.  v. 

15  Boca    &    L.    R.    Co.    v.    Sierra  Holliday,    150  Ind.  216,   27  Ins.   L. 

Valleys  Ry.  Co.  (Cal.  App.),  84  Pac.  J.    97,    49    N.   E.    14,  42   L.  R.  A. 

298.    See  Denver  &  N.  O.  R.  Co.  v.  865. 

Atchison,  Topeka  &  Santa  Fe  R.  Co.,        19  Mercur  Gold  Min.  &  Mill.  Co.  v. 

15  Fed.  650,  case  is  rev'd,  Atchison,  Spry,  16  Utah,  222,  52  Pac.  382. 
Topeka  &  Santa  Fe  R.  Co.  v.  Denver        20  McHenry  v.  Downer,  116  Cal.  20, 

&  N.  O.  R.  Co.,  110  U.  S.  667,  28  L.  47  Pac.  779,  6  Am.  &  Eng.  Corp.  Cas. 

ed.  291,  4  Sup.  Ct.  185.  (N.  S.)  113,  45  L.  R.  A.  737. 

18  Northwestern  Warehouse  Co.  v.        21  Engstad  v.  Grand  Forks  County, 

Oregon  R.  &  Nav.  Co.,  32  Wash.  218,  10  N.  Dak.  54,  84  N.  W.  577. 
73  Pac.  388.  22  State,  Ross,  v.  Kelly,  45  S.  C. 

17  Bell  v.  Farwell,  176  III.  489,  31  457,  23  S.  E.  281. 

348 


OR   CONSTRUCTION   OF   STATUTES 


CHAPTER  XVI. 

CONSTITUTIONAL  LAW — INTERPRETATION  OR  CONSTRUCTION   OF 

STATUTES. 


§  228.  Constitutional  Law — Inter- 
pretation or  Construction 
of  Statutes — Generally. 

229.  Judicial  Authority  and  Duty    §  242. 

to  Determine  Constitu- 
tional Questions. 

230.  Validity  of  Statutes— Gener-       243. 

ally. 

231.  Presumption  That  Legislative        244. 

enactment     Constitutional         245. 
— Repugnancy  Must  Clearly 
Appear. 

232.  Same  Subject— Exception  to        246. 

or  Qualification  of  Rule. 

233.  Conflicting  Provisions— Vali-       247. 

dating  Interpretation  or 
Construction — Two  Con- 
structions. 

234.  Partial  Invalidity. 

235.  Same  Subject — Instances. 

236.  Intent— Effect  to  Be  Given  to 

Every  Part. 

237.  Plain  and  Manifest  Intention. 

238.  Natural  and  Reasonable    Ill- 

feet     and     Construction —        248. 
Ordinary  or  Popular  Mean-        249. 
ing — Absurdity    or     Injus- 
tice. 

239.  Literal   Meaning  —  Intention        250. 

and  Letter  of  Statute. 

240.  General  and  Specific  Words  or       251. 

Clauses — General     Legisla 

tion.  -,.".l-,. 

241.  Construction  of  Special  Words       2f>.'*. 

and  Clauses  in  Grants  of 
Franchises  or  Privileges  to       254. 


Street  Railway,  Railroad, 
and  Electric  Light,  etc., 
Companies. 

Construction  as  to  Conflicting 
Railroad  Grants — Undivid- 
ed Moiety. 

Matters  incorporated  by  Ref- 
erence. 

Title  of  Statute. 

Same  Subject  Continued — 
Constitutional  Require- 
ments. 

Title  of  Acts  Which  Amend, 
Revive  or  Repeal. 

Title  to  Statutes — Instances 
— Incorporation  —  Expro- 
priation -  -  Railroads  — 
Street  Railroads — Bonds  in 
Aid  of  Railroads — Lien  on 
and  Sale  of  Railroad — - 
Electrical  Conductors  — 
Fraudulent  Elections  in 
Corporations — Foreign  Cor- 
porations. 

Punctuation. 

Order  of  Arrangement — 
Transposition  —  Alteration 
— Omissions — Reject  ions. 

Construction  of  Proviso  or 
Except  ion. 

Libera]  Construction  Mean- 
ing Extended     Implication. 

Strict  Construction. 

Common  Law — Statutes  in 
Derogation   of. 

Public  Grants  of  Franchises, 

:;i'.» 


§§    228,  229      CONSTITUTIONAL    LAW — INTERPRETATION 

Privileges,    etc. — Construe-  phone,    Canal,    Water   and 

tion  Against  Grantee.  Turnpike      Companies    — 

§  255.  Same     Subject     Continued —  Ferry — Eminent  Domain. 

Instances  —  Railroads  —  §  256.  Same        Subject  —  Instances 

Street    Railroads — Subma-  Continued  —  Public    Land 

rine    Railway — Gas,   Tele-  Grants — Railroad  Aid. 

§  228.  Constitutional  Law — Interpretation  or  Construc- 
tion of  Statutes— Generally. — The  word  "franchise"  maybe 
used  in  its  general  sense  so  as  to  include  franchises  whether 
corporate  or  not,  and  may  cover  any  special  privilege  having 
its  source  in  the  sovereign  power.1  But  corporate  privileges 
can  only  be  held  to  be  granted  as  against  public  rights  when 
conferred  in  plain  and  explicit  terms.2  When  the  good  faith 
of  all  parties  is  unquestionable,  the  courts  will  lean  to  that 
construction  of  a  statute  which  will  uphold  a  transaction  as 
consummated,  and  this  applies  to  transactions  with  a  county 
which  have  resulted  in  the  delivery  of  bonds  of  the  county  to  a 
railroad  company,  such  bonds  having  been  issued  in  aid  of 
the  company  and  placed  in  escrow  in  the  hands  of  a  trustee 
who  had  adjudged  that  the  conditions  of  delivery  had  been 
complied  with  and  had  delivered  them  to  the  company.  In 
such  case  the  company  was  held  to  have  taken  such  a  title 
that  when  a  bond  was  transferred  to  a  bona  fide  holder  a  re- 
covery could  be  had  against  the  county  even  if  the  condition 
had,  in  fact,  not  been  performed.3 

§  229.  Judicial  Authority  and  Duty  to  Determine  Con- 
stitutional Questions. — Whenever  there  exists  a  fair  antag- 
onistic assertion  of  rights  involving  the  validity  of  any  legis- 
lative enactment,  Federal  or  state,  and  the  decision  neces- 
sarily rests  upon  the  power  of  the  legislature  to  so  enact,  the 
court  having  jurisdiction  in  the  matter  must  determine  the 

1  State  v.  Portage  City  Water  Co.,  26  Sup.  Ct.  427,  50  L.  ed.  801.  See 
107  Wis.  441,  83  N.  W.  697  (a  case  of  §  254,  herein,  as  to  construction 
construction    of    Wis.    Stat.,     1898,    against  grantee. 

§  3466,   action     for    usurping,    etc.,        3  Provident   Life   &   Trust   Co.    v. 
franchise).    See  §  9,  herein.  Mercer  County,    170   U.   S.   593,   42 

2  Blair  v.  Chicago,  201  U.  S.  400,    L.  ed.  1156,  18  Sup.  Ct.  788. 

350 


OR   CONSTRUCTION    OF    STATUTES 


§  229 


constitutionality  of  the  act.4  But  unless  a  clear  or  absolute 
necessity  exists  for  determining  the  question  of  the  constitu- 
tionality of  a  statute,  or  the  determination  of  such  question 
is  essential  in  order  to  properly  dispose  of  the  case  it  will  not 
be  considered  by  the  court  if  any  other  clear  ground  exists  upon 
which  to  base  a  decision.5  And  the  Supreme  Court  of  the 
United  States  will  not  condemn  state  legislation  as  unconsti- 
tutional and  void  except  at  the  suit  of  parties  directly  and 
certainly  affected  thereby.6  Thus,  a  state  law  will  not  be  held 
unconstitutional  in  a  suit  coming  from  a  state  court  at  the 
instance  of  one  whose  constitutional  rights  are  not  invaded, 


*  Chicago  &  Grand  Trunk  Ry.  Co. 
v.  Wellmann,  143  U.  S.  339,  12  Sup. 
Ct.  400,  30  L.  ed.  176.  See  Plumley 
v.  Massachusetts,  155  U.  S.  461,  15 
Sup.  Ct.  154,  39  L.  ed.  223;  Dodge  v. 
Woolsey,  18  How.  (59  U.  S.)  331,  15 
L.  ed.  401;  Cohens  v.  Virginia,  6 
Wheat.  (19  U.  S.)  264,  5  L.  ed.  257; 
Dartmouth  College  v.  Woodward,  4 
Wheat.  (17  U.  S.)  518,  4  L.  ed. 
629. 

Validity  of  statute  is  drawn  in 
question  when  the  power  to  enact  it 
is  fairly  open  to  denial  and  is  denied, 
but  not  otherwise.  And  on  ques- 
tions of  appeal  a  distinction  exists 
between  the  power  to  enact  and  the 
judicial  construction  which  does  not 
question  tli.it  power.  Baltimore  & 
Potomac  Rd.  Co.  v.  Hopkins,  130 
U.  S.  _'K).  32  L.  ed.  837. 

'-  Alabama:  Hill  v.  Tarver,  130 
Ala.  592,  30  So.  499. 

Arkansas:  Sturdivanl  v.  Toilette 
(Ark..  1907),  10.'.  S.  W.  1037. 

Georgia:  Herring  v.  State,  111 
Ga.  96,  39  S.  E.  866. 

Idaho:  Mills  Novelty  Co.  v.  Dun- 
bar, 11  Idaho,  071,  83  Pac.  932;  Jack 
v.  Village  of  Grangeville,  9  tdaho, 
291,  74  Pac.  969. 

Illinois:  Joliet,  City  of,  v.  Alex- 
ander, 194  111.  457,  62  N.  E.  861. 


Indiana:  Weir  v.  State,  161  Ind. 
435,  68  N.  E.  1023;  Hart  v.  Smith, 
159  Ind.  182,  64  N.  E.  661;  First  Nat. 
Bank  v.  Gregor,  157  Ind.  479,  62 
N.  E.  21. 

Louisiana:  Succession  of  Bien- 
venu,  106  La.  595,  31  So.  193. 

Maine:  See  Weeks  v.  Smith,  81 
Me.  538,  18  Atl.  325. 

Mississippi:  Flora,  Town  of,  v. 
American  Express  Co.  (Miss.,  1908), 
45  So.  149;  Hendricks  v.  State,  79 
Miss.  368,  30  So.  708. 

Montana:  State  v.  King,  28 
Mont.  268,  72  Pac.  657. 

Nebraska:  Green  v.  Doerwald,  69 
Neb.  698,  96  N.  W.  634;  Morse  v. 
City  of  Omaha,  67  Neb.  426,  93 
N.  W.  734. 

Nevada:  State  v.  Curler,  26  Nev. 
347,  67  Pac.  1075. 

Ohio:  Collins  v.  Bingham,  22 
Ohio  Cir.  Ct.  R.  533. 

South  Carolina:  State  v.  Jen- 
nings (S.  C,  1908),  60  S.  E.  967. 

The  judiciary  is  a  co-ordinate 
branch  of  the  govemmenl  ami  may 

declare  a  statute  to  be  void  as  re- 
pugnant to  the  Constitution.  Calder 
v.  Bull,  3  Dall.  (3  U.S.)  386,  1  I.,  ed. 

CIS. 

•Chadwick  v.  Kelley,  187  U.  S. 
:.lo,  17  L.  ed.  293,  23  Sup.  Ct.  175. 

351 


§    230  CONSTITUTIONAL    LAW— INTERPRETATION 

because  as  against  a  class  making  no  complaint  it  might  be 
held  unconstitutional.7 

§  230.  Validity  of  Statutes— Generally. — A  statute  need  not 
be  contrary  to  an  express  constitutional  provision  in  order  to 
be  held  invalid;  it  is  sufficient  that  the  general  purpose  and 
scope  of  such  provision  inhibits  it  or  renders  it  invalid.8  So 
where  there  exists  an  irreconcilable  repugnancy  between  the 
provisions  of  an  enactment  so  that  it  cannot  be  enforced,  it 
will  be  void.9  A  statute  may  also  be  invalid  for  indefiniteness 
and  uncertainty,  as  where  it  makes  it  unlawful  for  any  corpo- 
ration to  make  or  give  any  undue  or  unreasonable  preference 
or  advantage  to  any  particular  person  or  locality,  or  any  par- 
ticular description  of  traffic  in  any  respect  whatever,  in  the 
transportation  of  a  like  kind  of  traffic,  or  to  subject  any  par- 
ticular person,  company,  firm,  corporation  or  locality,  or  any 
particular  description  of  traffic,  to  any  undue  or  unreasonable 
prejudice  or  advantage.10  So  a  distinction  is  made  between 
the  effect  of  an  act  and  its  purpose,  the  former  and  not  the 
latter  being  held  to  determine  its  validity.11  None  of  the  pro- 
visions of  a  statute  should,  however,  be  regarded  as  unconsti- 
tutional where  they  all  relate,  directly  or  indirectly,  to  the 
same  subject,  have  a  natural  connection,  and  are  not  foreign 
to  the  subject  expressed  in  the  title.12  And  a  statute  is  not 
void  for  uncertainty  where  the  powers  granted  thereunder 

7  The  Winnebago  (Iroquois  Transp.  Bolton,  v.  Albertson,  55  N.  Y.  50; 
Co.  v.  DeLaney  Forge  &  Iron  Co.),  People  v.  Morris,  13  Wend.  (N.  Y.) 
205  U.  S.  354,  51  L.  ed.  27,  27  Sup.    325. 

Ct.  — .  9  Hendricks,  In  re,  60  Kan.  796, 

8  State,  Smyth,  v.  Moores,  55  Neb.    57  Pac.  965. 

480,  41  L.  R.  A.  624,  76  N.  W.  175,  10  Commonwealth  v.   Louisville   & 

citing    Maynard    v.    Board    of   Can-  Nashville  R.  Co.,  20  Ky.  L.  Rep.  491, 

vassers,  84  Mich.   228,   11   L.  R.  A.  46  S.  W.  700. 

332,  47  N.   W.   756;   State  v.  Con-  "  Commonwealth,  Cambria  Coun- 

stantine,  42  Ohio  St.  437,   51  Am.  ty,  v.  Lloyd,  178  Pa.  308,  35  Atl.  816, 

Rep.  833;  Cincinnati,  Wilmington  &  aff'g  2  Pa.  Super.  Ct.  6,  38  W.  N.  C. 

Zanesville  Rd.  Co.  v.  Commissioners  290. 

of  Clinton   County,    1    Ohio   St.   77;  12  Phillips    v.    Covington    &    Cin- 

Rathbone  v.  Wirth,  150    N.  Y.  459,  cinnati  Bridge  Co.,  2  Mete.  (59  Ky.) 

45  N.  E.  15,  34  L.  R.  A.  408;  People,  219,  222. 

352 


OR    CONSTRUCTION    OF    STATUTES 


§  231 


may  be  clearly  defined  by  reference  to  other  laws.13  Statutes 
have  frequently  been  passed  directing  suits  for  specific  objects 
to  be  brought  by  an  attorney  general,  and  regulating  the  pro- 
ceedings in  them,  such  as  quo  warranto,  or  a  bill  in  equity 
against  a  corporation  to  test  its  right  to  the  exercise  of  its 
franchises,  or  to  declare  them  forfeited,  or,  if  insolvent,  to 
wind  up  its  business  and  distribute  its  assets;  and  the  validity 
of  such  statutes  has  uniformly  been  recognized.14 


§231.  Presumption  That  Legislative  Enactment  Consti- 
tutional— Repugnancy  Must  Clearly  Appear. — Every  legisla- 
tive enactment  will  be  presumed  to  be  constitutional  and 
valid  unless  its  repugnancy  to  the  Constitution  is  so  clearly 
apparent  that  it  cannot  stand.  Every  reasonable  intendment 
is  in  favor  of  such  validity,15  and  in  certain  cases  the  rule  is 


13  Land,  Log  &  Lumber  Co.  v. 
Brown,  73  Wis.  294,  40  N.  W.  482, 
3  L.  R.  A.  472. 

14  United  States  v.  Union  Pac.  R. 
Co.,  98  U.  S.  569,  25  L.  ed.  143. 

15  United  States:  Buttfield  v. 
Stranahan,  192  U.  S.  470,  24  Sup.  Ct. 

'340,  48  L.  ed.  252;  Reid  v.  Colorado, 
187  U.  S.  137,  47  L.  ed.  108,  23 
Sup.  Ct.  92,  case  affirms  29  Colo.  333, 
68  Pac.  228;  Fairbank  v.  United 
States,  181  U.  S.  283,  21  Sup.  Ct.  648, 
45  L.  ed.  862;  Nicol  v.  Ames,  173 
U.  S.  509,  43  L.  ed.  786,  19  Sup.  Ct. 
522;  Brown  v.  Maryland,  12  Wheat. 
(25  U.  S.)  419,  6  L.  ed.  678;  Fletcher 
v.  Peck,  6  Cranch  (10  U.  S.),  87,  3 
L.  ed.  162;  Logan  &  Bryan  v.  Postal 
Teleg.  &  Cable  Co.,  157  Fed.  570; 
Southern  Pac.  R.  Co.  v.  Orton,  32 
Fed.  457,  472,  473,  per  Sawyer,  J.; 
Farmers'  Loan  &  Trust  Co.  v.  Stone 
(C.  C),  20  Fed.  270. 

Alabama:  State  v.  Skeggs  (Ala., 
1908),  46  So.  268;  Jackson  v.  Bir- 
mingham Foundry  &  Mach.  Co.  (Ala., 
1908),  45  So.  660;  Mobile  Dry  Docks 
Co.  v.  City  of  Mobile,  146  Ala.   198, 

23 


40  So.  205;  Zeigler  v.  South.  &  N.  A. 
R.  Co.,  58  Ala.  594. 

Arkansas:  Stillwell  v.  Jackson,  77 
Ark.  250,  93  S.  W.  71. 

California:  Stockton  &  V.  R.  R. 
Co.  v.  City  of  Stockton,  41  Cal.  147. 

Colorado:  Prudential  Ins.  Co.  v. 
Hummer,  36  Colo.  208,  84  Pac.  61. 

Connecticut:  State  v.  Carroll,  38 
Conn.  449,  9  Am.  Rep.  400;  Hart- 
ford Bridge  Co.  v.  Union  Ferry  Co., 
29  Conn.  210. 

Delaware :  Bailey  v.  Philadelphia, 
W.  &  B.  R.  Co.,  4  Har.  (Del.)  389, 
44  Am.  Dec.  593. 

Florida:  Holton  v.  State,  28  Fla. 
303,  9  So.  716. 

Georgia:  Griggs  v.  State  (Ga. 
App.,  1908),  60  S.  E.  364;  Park  v. 
Candler,  113  Ga.  647,  39  S.  E.  89; 
Ivey  v.  State,  112  Ga.  175,  37  S.  E. 
398;  Howell  v.  State,  71  Ga.  224,  51 
Am.  Rep.  259;  Botson  v.  Cummins, 
16  Ga.  102,  60  Am.  Dec.  717;  Flint 
River  Steamboat  Co.  v.  Foster,  5  Ga. 
194,  48  Am.  Dec.  248. 

Illinois:  People  v.  Rose,  203  111.  46, 
f>7  X.  E.  746;  Chicago  Union  Traction 

353 


§  231  CONSTITUTIONAL   LAW — INTERPRETATION 

extended  to  the  exclusion  of  reasonable  doubt; 16  and  the  whole 
burden  of  proof  lies  on  him  who  denies  the  constitutionality 

Co.  v.  City  of  Chicago,  199  111.  484,  v.  People's  Five  Cent  Sav.  Bank,  5 

65  N.  E.  451,  59  L.  R.  A.  631;  Haw-  Allen   (87  Mass.),  432;  Dearborn  v. 

thorne  v.  People,  109  111.  302,  50  Am.  Ames,  8  Gray  (74  Mass.),  1. 

Rep.  610.  Michigan:     Attorney   General   v. 

Indiana:  Kraus  v.  Lehman  (Ind.,  Preston,  56  Mich.  177,  22  N.  W.  261; 

1908),  83  N.  E.  714,  aff'g  80  N.  E.  Inkster  v.  Carver,  16  Mich.  484. 

550;  State  v.  Denny,  118  Ind.  388,  Missouri:    State,  Judah,  v.  Fort 

21  N.  E.  252;  Robinson  v.  Schenck,  (Mo.,  1908),  109  S.  W.  737;  Wells  v. 
102  Ind.  307,  1  N.  E.  698.  Missouri  Pac.  R.  Co.,  110  Mo.  286,  19 

Iowa:    McGuire  v.  Chicago,  Bur-  S.  W.  530,  15  L.  R.  A.  847;  State  v. 

lington  &  Quincy  Rd.  Co.,  131  Iowa,  Simmons    Hardware    Co.,    109    Mo. 

340,  108  N.  W.  902;  McCormick  v.  118,  18  S.  W.  1125. 

Rush,  15  Iowa,  127,  83  Am.  Dec.  401.  Montana:  Spratt  v.  Helena  Power 

Kansas:  State  v.  Barrett,  27  Kan.  Trans.  Co.  (Mont.,  1908),  94  Pac.  63. 

213;  Leavenworth  v.  Miller,  7  Kan.  Nebraska:  State  v.  Nolan,  71  Neb. 

298.  136,  98  N.  W.  657;  Rosenbloom  v. 

Kentucky:      Commonwealth      v.  State,  64  Neb.  342,  89  N.  W.  1053, 

Barney,   24   Ky.   L.   Rep.   2352,   74  57  L.  R.  A.  922;  State  v.  Standard 

S.  W.  181;  Millay  v.  White,  86  Ky.  Oil  Co.,  61  Neb.  28,  84  N.  W.  413; 

170,   5  S.   W.   429;   McReynolds   v.  Cumming  v.  Hyatt,  54  Neb.  635,  74 

Smallhouse,  8  Bush   (71   Ky.),  447;  N.  W.  411. 

Louisville,  City  of,  v.   Hyatt,   2  B.  Nevada:     Boyce,    Ex     parte,    27 

Mon.  (41  Ky.)  77,  178,  36  Am.  Dec.  Nev.  299,  75  Pac.  1;  State  v.  Hum- 

594.  boldt  County  Commissioners,  21  Nev. , 

Louisiana:  Grinage  v.  Times  Dem-  235,  29  Pac.  974. 

ocrat    Pub.   Co.,    107    La.    121,   31  New  Hampshire:  Orr  v.  Quimby, 

So.  682;  Police  Jury  v.  McDonough  54  N.  H.  590,  601;  Rich  v.  Flanders, 

8  La.  Ann.  341;  Hyde  v.  Planters'  39  N.  H.  304. 

Bank,  8  Rob.  (La.)  416.  New  Jersey:  Atlantic  City  Water- 
Maine:  Williamson  v.  Carlton,  51  works  Co.  v.  Consumers'  Water  Co., 

Me.  449.  44  N.  J.  Eq.  427,  15  Atl.  581;  Olden 

Maryland:  Fell  v.  Maryland,  42  v.  Hallet,  5  N.  J.  L.  466. 

Md.  71,  20  Am.  Rep.  83;  Temmick  New  York:   Sugden  v.  Partridge, 

v.  Owings,  70  Md.  246,  19  Md.  L.  J.  174  N.  Y.  87,  66  N.  E.  655,  rev'g  80 

981,  16  Atl.  719;  Harrison  v.  State,  N.  Y.  Supp.  1149,  78  App.  Div.  644; 

22  Md.  468,  85  Am.  Dec.  658.  People  v.  West,  106  N.  Y.  293,  12 
Massachusetts:     Commonwealth  N.  E.  610,  60  Am.  Rep.  452;  People 

"United  States:  Nicol  v.  Ames,  Missouri:    State,  Judah,  v.  Fort 

173  U.   S.    509,   43   L.  ed.   786,   19  (Mo.,  1908),  109  S.  W.  737. 

Sup.  Ct.  522  (applied  to  act  of  Con-  New  York:  People  v.  Reardon,  97 

gress).  N.  Y.  Supp.  535,  110  App.  Div.  821, 

Indiana:  Kraus  v.  Lehman  (Ind.,  aff'd  184  N.  Y.  431,  77  N.  E.  970. 

1908),  83  N.  E.  714,  aff'g  80  N.  E.  South  Dakota:    Morrow  v.  Wipf 

550.  (S.  Dak.,  1908),  115  N.  W.  1121. 

354 


OR   CONSTRUCTION   OF   STATUTES  §  231 

of  the  law; 17  nor  will  it  be  declared  void  until  it  is  clearly 
shown  that  under  no  state  of  facts  can  it  be  upheld,18  or  that 

there  is  a  clear  usurpation  of  power.19    And  where  a  statute 

v.  Reardon,  97  N.  Y.  Supp.  535,  110  (12  Tenn.),  202,  26  Am.  Dec.  221; 

App.Div.  821,  aff'd  184  N.Y.  431,77  State  Bank  v.  Hooper,  2  Yerg.  (10 

N.  E.  970;  Lexington  Ave.,  In  re,  63  Tenn.)  599. 

How.  Prac.   (N.  Y.)  462;  People  v.  Texas:  Barker  v.  Torrey,  69  Tex. 

New  York  Cent.   R.  Co.,  34  Barb.  7,  4  S.  W.  646;  Rosenberg  v.  Weekes, 

(N.  Y.)  123.  67  Tex.  578,  4  S.  W.  899;  Missouri, 

North  Carolina:   Malloy   v.  Fay-  Kansas  &  Texas  Ry.  Co.   v.   State 

ettsville,  122  N.  C.  480,  29  S.  E.  880;  (Tex.  Civ.  App.,  1908),  109  S.  W.  867. 

McGwigan  v.  Wilmington  &  W.  R.  Utah:    State    v.    Edwards  (Utah, 

Co.,  95  N.  C.  428.  1908),  95  Pac.  367;  State  v.  Lewis,  26 

Ohio:    State  v.  Jones,  51  Ohio  St.  Utah,  120,  72  Pac.  288. 

492,  37  N.  E.  945;  Bronson  v.  Ober-  Vermont:     Bennington   v.    Park, 

lin,  41  Ohio  St.  476,  52  Am.  Rep.  90.  50  Vt.  178. 

Oregon:  Crowley  v.  State,  11  Oreg.  Virginia:   Young's    Case    (Young 

512,  6  Pac.  70.  v.  Commonwealth),  101  Va.  853,  45 

Pennsylvania:       Commonwealth,  S.  E.  327;  Commonwealth  v.  Moore, 

Cambria  County,  v.  Lloyd,  178  Pa.  25  Grat.  (Va.)  951. 

308,  35  Atl.  816,  aff'g  2  Pa.  Super.  Washington:     Townsend    Gas    & 

Ct.  61,  38  W.N.  C.  290;  Pennsylvania  Elect.  Co.  v.  Hill,  24  Wash.  469,  64 

R.  Co.  v.    Riblet,  66  Pa.  164;  Com-  Pac.  778. 

mon wealth  v.  Erie  Ry.  Co.,  62  Pa.  West  Virginia:  Bridges  v.  Shall- 

286,  1  Am.  Rep.  399;  Erie  &  North-  cross,  6  W.  Va.  562;  Osburn  v.  Staley, 

East  Rd.  v.  Casey,  26  Pa.  287;  Com-  5  W.  Va.  85,  13  Am.  Rep.  640. 

monwealth  v.  Mentz,  19  Pa.  Super.  Wisconsin:  Chicago  &  N.  W.  Ry. 

Ct.  283.  Co.  v.  State,  128  Wis.  553,  108  N.  W. 

South      Carolina:      Feldman     v.  557. 

Charleston,  23  S.  C.  57,  55  Am.  Rep.  "Of  course,  if  it  can  be  lawfully 

6;  Lynch,  Ex  parte,  16  S.  C.  32.  done,   our   duty   is   to   construe   the 

South     Dakota:     Fremont,    Elk-  statute  so  as  to  render  it  constitu- 

horn   <fe  Missouri  Valley  Rd.   Co.   v.  tional.     But  this  does  not  imply,  if 

Pennington  County  (S.  Dak.,  1908),  the  text  of  an  act  is  unambiguous, 

116  X.   VV.  75;  Morrow  v.  Wipf  (S.  that  it  may  be  rewritten  to  accom- 

Dak.,  1908),  115  N.  W.   1121;  Bon  plisli    that    purpose."      Employers' 

Homme  County  v.  Berndt,  15  S.  Dak.  Liability  Cases   (Howard  v.   Illinois 

I'M.  90  N.  W.  147.  Cent.  Rd.  Co.),  207  U.  S.  463,  501, 

Tennessee:  Tate  v.  Bell,  4  Yerg.  per  White,  J. 

17  I'.rown  v.  Maryland,   12  Wheat,  &  Quincy  Rd.  Co.,  131  Iowa,  340,  108 
(25  IT.  S.)  419, 6  L.  ed.  678.    Compare  N.  W.  902. 

Weeks  v.  Smith,  81  Me.  538,  18  AM.  '•  Cornmonwealth,Cambria County, 

328  (as  to  duty  of  courl  to  determine  v.  Lloyd,   L78  Pa.  308,  35  Ail.  816, 

question  without  pleading  or  proof,  aff'g  ~  Pa.  Super.  Ct.  6,  38  W.  N.  C. 

18  McGuire  v.  Chicago,  Burlington  290. 

355 


§§    '232,  233       CONSTITUTIONAL    LAW— INTERPRETATION 

has  stood  for  a  long  time  and  the  court  can,  without  a  violent 
construction,  read  it  so  that  it  will  not  be  declared  unconsti- 
tutional, it  will  do  so.20 

§  232.  Same  Subject — Exception  to  or  Qualification  of 
Rule. — The  above  presumption  as  to  the  constitutionality 
of  a  statute  is  held  not  to  prevail  where  part  of  the  enactment 
has  been  declared  unconstitutional.  In  such  case  it  must  be 
clear  that  it  was  the  legislative  intent  that  the  remainder 
should  stand  as  law  independent  of  and  uncontrolled  by  the 
unconstitutional  provisions.  So  a  statute  which  provides  a 
forfeiture  for  failure,  neglect  or  refusal  of  a  telegraph  company 
to  receive,  transmit  and  deliver,  without  unnecessary  delay, 
any  telegraph  message  tendered  under  the  provisions  of  an 
act  otherwise  invalid,  is  inoperative  and  void.21 

§  233.  Conflicting  Provisions — Validating  Interpretation 
or  Construction — Two  Constructions. — A  construction  will 
be  given  which  supports  it  in  all  its  parts  where  a  statute  is 
conflicting  and  doubtful  in  its  provisions;  such  provisions 
should  be  reconciled,  if  possible,22  for  the  enactment  should  be 
so  interpreted,  if  by  any  reasonable  view  it  can  be  done,  that 
it  will  be  in  harmony  with  the  Constitution  and  not  be  eluded 
but  upheld.23     And  of  two  constructions,  one  constitutional 

20  Martin  v.  District  of  Columbia,  penalty,  statutes  and  discrimination. 
205  U.  S.  135,  51  L.  ed.  473,  27  Sup.  See  §§  234,  235,  265-267,  herein,  as 
Ct.  440.  to  pari  materia  and  partial  invalidity. 

21  Western  Union  Teleg.  Co.  v.  "  Boyer  v.  Onion,  108  111.  App. 
Austin,  67  Kan.  208,  72  Pac.  850,  612;  Burlington,  C,  R.  &  N.  Ry. 
citing  or  quoting  Hall,  Petitioner,  Co.  v.  Dey,  82  Iowa,  312,  12  L.  R.  A. 
In  re,  38  Kan.  670,  17  Pac.  649;  436,  48  N.  W.  98,  9  Ry.  &  Corp.  L.  J. 
Central   Branch   Union    Pacific   Rd.  282,  45  Am.  &  Eng.  R.  Gas.  391. 

Co.  v.  Atchison,  Topeka  &  Santa  Fe  23  United  States:  Grenada  County 

Rd.    Co.,    28    Kan.    453;    State    v.  Supervisors   v.   Brogden,    112   U.   S. 

Stewart,  52  Neb.  243,  71  N.  W.  998;  261,  28  L.  ed.  704,  5  Sup.  Ct.  125; 

Martin  v.  Tyler,  4  N.  Dak.  278,  298,  Singer  Mfg.  Co.  v.  McCollock  (C.  C), 

60  N.  W.  392,  25  L.  R.  A.  838;  Skagit  24  Fed.  667. 

County  v.  Stiles,  10  Wash.  388,  39  Alabama:  Noble  v.  Mitchell,  100 

Pac.  116;  Cooley's  Const,  Lim.  (5th  Ala.  519,  14  So.  581. 

ed.)    213.       See    Joyce   on    Electric  Alaska:  Wynn   Johnson,  In  re,  1 

Law    (2d  ed.),  §§  836a  et  seq.,  as  to  Alaska,  630. 

356 


OR    CONSTRUCTION    OF    STATUTES 


§  233 


and  the  other  unconstitutional,  the  former  will  prevail.24  So 
if  both  interpretations  are  equally  reasonable  that  in  favor  of 
validity  of  the  act  should  be  adopted ; 25  or  if  one  construction 
will  lead  to  an  absurdity,  the  other  should  be  favored ; 26  and 
one  bringing  the  enactment  within  the  legislative  power  is  to 
be  given,  rather  than  one  that  presses  it  beyond  constitutional 
authority; 27  this  last  also  applies  to  a  section  of  an  act  of  Con- 


Arkansas:  Arkansas,  L.  &  G.  Ry. 
Co.  v.  Kennedy  (Ark.,  1907),  105 
S.  W.  885. 

California:  French  v.  Tesche- 
maker,  24  Cal.  518;  Goodrich's  Est., 
In  re  (Cal.  App.,  1907),  93  Pac.  121. 

Connecticut:  Ferguson  v.  Stan- 
ford, 60  Conn.  432,  22  Atl.  782,  37 
Am.  &  Eng.  Corp.  Cas.  321. 

Illinois:  People  v.  Rose,  203  III. 
46,  67  N.  E.  746;  People  v.  Peacock, 
98  111.  172;  Newland  v.  Marsh,  19 
111.  376. 

Indiana:  Hovey  v.  State,  119 
Ind.  395,  21  N.  E.  21;  McComas  v. 
Krug,  81  Ind.  327,  42  Am.  Rep.  135. 

Iowa:  Buncombe  v.  Prindle,  12 
Iowa,  1. 

Kansas:  Cherokee,  County  of,  v. 
Stat.-,  36  Kan.  339,  13  Pac.  558. 

Kentucky:  Commonwealth  v.  Bar- 
ney, 24  Ky.  L.  Rep.  2352,  74  S.  W. 
181;  Conner  v.  Commonwealth,  13 
Bush  (76  Ky.),  714. 

Massachusetts :  Commonwealth  v. 
Downes,  24  Pick.  (41  Mass.)  227. 

Michigan:  Grand  Rapids  Boom- 
ing Co.  v.  Jarvis,  30  Mich.  308. 

Mississippi:  Marshall  v.  Grimes, 
41  Mise.  27. 

Missouri:  Loving,  Ex  parte,  178 
Mo.  194,  77  S.  W.  508. 

New  Jersey:  Colwell  v.  May's 
Landing  Water  Power  Co.,  19  N.  J. 
Eq.  245. 

New  York:  Sugden  v.  Partridge, 
174  N.  Y.  87,  66  N.  E.  655,  rev'g  80 
N.  Y.  Supp.  1149,  78  App.  Div.  644; 


New  York  &  Oswego  Mid.  R.  Co.  v. 
Van  Home,  57  N.  Y.  473;  People  v. 
Utica  Ins.  Co.,  15  Johns.  (N.  Y.) 
357,  8  Am.  Dec.  243. 

North  Carolina:  McGwigan  v. 
Wilmington  &  W.  R.  Co.,  95  N.  C. 
428. 

Ohio:  Senior  v.  Ratterman,  44 
Ohio  St.  661,  11  N.  E.  321. 

Oregon:  Portland  &  W.  V.  R. 
Co.  v.  Portland,  14  Oreg.  188,  12 
Pac.  26,  58  Am.  Rep.  299. 

South  Carolina:  Columbia  & 
G.  R.  Co.  v.  Gibbes,  24  S.  C.  60; 
Pelzer  v.  Campbell,  15  S.  C.  581, 
40  Am.  Rep.  705. 

Tennessee:  Cole  Mfg.  Co.  v.  Falls, 
90  Tenn.  466,  16  S.  W.  1045. 

Texas:  Wright  v.  Adams,  45  Tex. 
134. 

Utah:  State  v.  Lewis,  26  Utah, 
120,  72  Pac.  388. 

Wisconsin:  Chicago  &  N.  W. 
Ry.  Co.  v.  State,  128  Wis.  553,  108 
N.  W.  557. 

24  Wellmaker  v.  Terrell  (Ga.  App., 
1908),  60  S.  E.  464;  Lears  v.  Sea- 
board Air  Line  Ry.  Co.  (Ga.  App., 
1908),  60  S.  E.  343;  Burnette,  In  re, 
73  Kan.  609,  85  Pac.  575;  State, 
Brown,  v.  Union,  62  N.  J.  L.  1  12, 
40  Atl.  632. 

25  Rosin  v.  Lidgewood  Mfg.  Co.,  86 
N.  Y.  Supp.  49,  89  App.  Div.  245. 

26  Harless  v.  United  States,  88  Fed. 
97,  57  U.  S.  App.  745,  31  C.  C.  A.  397. 

27  Martin  v.  South  Salem  Land  Co.. 
94  Va.  28,  2  Va.  Law  Reg.  743,  26 


§    234  CONSTITUTIONAL    LAW— INTERPRETATION 

gross,  because  a  presumption  never  ought  to  be  indulged  that 
that  body  meant  to  exercise  or  usurp  any  constitutional  au- 
thority, unless  the  conclusion  is  forced  on  the  court  by  language 
altogether  unambiguous.28  But  if  it  is  doubtful  that  a  tax  is 
authorized,  such  tax  will  not  be  upheld.29  In  case  of  two 
constitutional  provisions  and  a  statute  passed  in  pursuance 
therewith,  effect  should  be  given  to  all  and  such  a  construction 
that  all  may  operate  harmoniously.  In  order  to  nullify  the 
statute  in  such  case  it  must  be  so  repugnant  to  and  in  conflict 
with  the  constitution  that  the  two  enactments  cannot  stand 
or  be  reconciled  in  any  reasonable  way.  If  no  conflict  exists, 
the  statute  must  be  given  full  force  and  effect.30 

§  234.  Partial  Invalidity. — A  statute  may  be  valid  in  part 
and  invalid  in  part,  and  where  some  of  the  provisions  are 
constitutional  and  some  are  unconstitutional,  effect  may  be 
given  to  the  former,  where  they  can  be  separated  from  the 
latter  and  sufficient  is  left  to  enable  their  intent  or  purpose  to 
be  accomplished  after  the  invalid  provisions  are  eliminated; 
but  this  rule  has  no  application  where  the  parts  of  the  statute 
which  are  unconstitutional  are  so  connected  with  its  general 
scope  or  purpose  that  should  they  be  stricken  out,  effect  cannot 
be  given  to  the  legislative  intent,  or  where  the  provisions  of 
the  act  are  dependent  upon  each  other,  intended  as  an  entirety 
and  are  indivisible,  or  where  it  does  not  plainly  appear  that 
the  constitutional  legislation  would  have  been  enacted  without 
the  unconstitutional  provisions,  or  that  the  invalid  part  in- 
duced the  passage  of  the  valid  part,  or  where  the  invalid  clause 
or  provision  cannot  be  rejected  without  causing  the  statute 
to  enact  what  the  legislature  never  intended.31 

S.  E.  591,  6  Am.  &  Eng.  Corp.  Cas.  reverses    Seeley    v.    Franchot,     104 

(N.  S.)  312.  N.  Y.  Supp.  1145. 

28  United  States  v.  Coombs,  12  Pet.  31  United      States:       Employers' 
(37  U.  S.)  72,  9  L.  ed.  1004.  Liability  Cases   (Howard  v.  Illinois 

29  Morris    v.    Cummings,    91    Tex,  Cent.   Rd.  Co.),   207  U.  S.  463,   28 
618,  45  S.  W.  383.  Sup.  Ct.  141,  52  L.  ed.  — ;  People's 

30  Seeley,  Matter  of,  v.  Stevens,  190  National  Bank  v.  Marye,  191  U.  S. 
N.  Y.  158,  166,  82  N.  E.  1095,  case  272,  48  L.  ed.   180,  24  Sup.  Ct.  68 

358 


OR    CONSTRUCTION    OF   STATUTES 


§  235 


§  235.  Same    Subject— Instances.— A    charter    otherwise 
valid  is  not  made  void  by  the  insertion  therein  of  an  invalid 


(taxation;  bank  stock;  deductions; 
state  laws);  Reagan  v.  Farmers' 
Loan  &  T.  Co.,  154  U.  S.  362,  38 
L.  ed.  1014,  14  Sup.  Ct.  1047  (estab- 
lishing state  railroad  commission); 
Spraigue  v.  Thompson,  118  U.  S.  90, 
30  L.  ed.  115,  6  Sup.  Ct.  988  (if  a 
clause,  in  a  statute  which  violates 
the  constitution,  cannot  be  rejected 
without  causing  the  act  to  enact 
what  the  legislature  never  intended, 
the  whole  statute  must  fall);  Presser 
v.  Illinois,  116  U.  S.  252,  29  L.  ed. 
615,  6  Sup.  Ct.  580;  Allen  v.  Louisi- 
ana, 103  U.  S.  90,  26  L.  ed.  310 
(if  the  provisions  of  a  statute  which 
are  unconstitutional  be  so  connected 
with  its  general  scope  that,  should 
they  be  stricken  out,  effect  cannot  be 
given  to  the  legislative  intent,  the 
other  provisions  must  fall  with  them; 
a  case  of  municipal  subscription  for 
stock  of  a  railroad  company);  Packet 
Co.  v.  Keokuk,  95  U.  S.  80,  24  L.  ed. 
377;  Pacific  Express  Co.  v.  Seibert 
(C.  C),  44  Fed.  310. 

Alabama:  State,  Sanche,  v.  Webb, 
110  Ala.  214,  20  So.  462,  4  Am.  Eng. 
Corp.  Cas.  (N.  S.)  574  (special  act 
amending  charter  of  corporation); 
Ramagnano  v.  Cook,  85  Ala.  226,  3 
So.  845. 

Arkansas:  St.  Louis,  I.  M.  &  S.  R. 
Co.  v.  State,  55  Ark.  200,  17  S.  W. 
806  (not  void  if  void  part  can  be 
eliminated). 

California:  Christensen,  Ex  parte, 
85  Cal.  208,  24  Pac.  747. 

Colorado:  Callahan  v.  Jenninjrs, 
Ui  Col-,.  171,  27  Pac.  1055;  House 
Bill,  In  re,  15  Colo.  593,  595,  26  Pac. 
141. 

District  of  Columbia:  District  of 
Columbia  v.  Arms,  8  \pp.  I).  C.  393, 
24  Wash.  L.  Rep.  278  (valid  where 


the  intent  or  purpose  of  the  act  may 
still  be  effectuated  if  the  invalid  part 
is  eliminated  or  excised). 

Illinois:  People  v.  Olsen,  222  111. 
117,  78  N.  E.  23;  People,  Deneen, 
v.  Simons,  176  111.  165,  31  Chic.  Leg. 
N.  75,  3  Chic.  L.  J.  WTkly.  506,  52 
N.  E.  910  (if  possible  to  carry  out 
the  general  purposes  of  the  act  it  will 
stand  though  part  invalid). 

Indiana:  State  v.  Gerhardt,  145 
Ind.  439,  44  N.  E.  469,  33  L.  R.  A. 
313;  State,  Holt,  v.  Denny,  118  Ind. 
449,  21  N.  E.  274,  4  L.  R.  A.  65 
(invalid  part  mutually  connected 
with  valid  part,  and  if  legislature 
would  not  have  passed  valid  part 
without  the  invalid  all  void);  Wilkins 
v.  State,  113  Ind.  514,  16  N.  E.  192. 

Kansas:  Smith  v.  Haney,  73  Kan. 
506,  85  Pac.  550  (if  invalid  part  so 
connected  that  legislature  would  not 
have  passed  act  without  it,  act  is 
void).  See  Western  Union  Teleg.  Co. 
v.  Austin,  67  Kan.  208,  72  Pac.  850. 

Kentucky:  Norman  v.  Boaz,  85 
Ky.  557,  4  S.  W.  316. 

Michigan:  Mathias  v.  Cramer,  73 
Mich.  5,  40  N.  W.  926. 

Minnesota:  St.  Paul  v.  Chicago, 
Milwaukee  &  St.  Paul  R.  Co.,  63 
Minn.  330,  68  N.  W.  458,  34  L.  R.  A. 
189,  modifying  34  L.  R.  A.  184,  65 
N.  W.  649,  which  aff'd  63  N.  W.  267; 
Meyer  v.  Berlandi,  39  Minn.  438,  40 
N.  W.  513,  1  L.  R.  A.  777,  39  Alb. 
L.  J.  9;  O'Brien  v.  Krenz,  36  Minn. 
136,  30  N.  W.  458  (if  invalid  and 
valid  parts  so  mutually  dependent 
that  it  is  obvious  that  the  legislature 
intended  them  as  an  entirety,  both 
parts  must  fall). 

Missouri:  State,  Crow,  v.  Fire- 
men's Fund  Ins.  Co.,  152  M<>  1,  52 
S.  W.  595,  45  L.  R.  A.  363  (remain- 

359 


§   235  CONSTITUTIONAL    LAW — INTERPRETATION 

provision.32  Antl  omissions  as  to  the  amount  of  capital  stock 
and  the  value  of  shares  do  not  of  themselves  invalidate  an  act 

ing  provisions  valid  when  separable    N.    W.   392    (void   where   remainder 

and  sufficient  left  to  be  operative);    cannot  be  enforced). 

State  v.   Bockstruck,    136  Mo.  335,        Ohio:    Fayette  County  v.  People's 

38  S.  W.  317;  Grimes  v.  Eddy,  126    &  D.  Bk.,  47  Ohio  St.  503,  24  Ohio 

Mo.  168,  28  S.  W.  756,  26  L.  R.  A.    L.  J.  408,  10  L.  R.  A.  196,  25  N.  E. 

638,   61   Am.   &   Eng.   R.   Cas.   343;    697. 

State,  Maggard,  v.  Pond,  93  Mo.  605,        Pennsylvania:  East  Grant  Street, 

6    S.    W.    469.      Compare    State    v.    In    re,    121    Pa.    596,    22    W.   N.  C. 

Walsh,  136  Mo.  400,  37  S.  W.  1112;    333,  46  Phila.  L.  Int.  168,  16  Atl.  366; 

35  L.  R.  A.  231.  Titusville   Iron   Works   v.   Keystone 

Nebraska:  State  v.  Poynter,  59  Oil  Co.,  122  Pa.  627,  22  W.  N.  C. 
Neb.  417,  81  N.  W.  431  (passage  of  435,  1  L.  R.  A.  361,  15  Atl.  917. 
remaining  provisions  induced  by  in-  South  Carolina:  Utsy  v.  Hiott, 
valid  part,  whole  act  void);  State,  30  S.  C.  360,  9  S.  E.  338  (invalid 
Wheeler,  v.  Stuht,  52  Neb.  209,  71  where  cannot  be  presumed  that  one 
N.  W.  941  (parts  of  statute  or  of  part  would  have  been  passed  without 
section  valid  though  other  parts  in-   the  other). 

valid  where  latter  not  the  induce-  Tennessee:  State  National  Bank 
ment  to  enactment  of  the  former);  v.  City  of  Memphis,  116  Tenn.  641, 
Muldoon  v.  Levi,  25  Neb.  457,  41  94  S.  W.  606  (deduction  of  state 
N.  W.  280.  bonds  from  shares  of  stock  of  corpo- 

New  Jersey:  State,   McCuIlough,    rations  in  assessment  of  latter). 
v.   Franklin  Township,   59  N.   J.   L.        Texas:     St.    Louis    Southwestern 
106,  34  Atl.  1088.  Ry.  Co.  of  Texas  v.  Gentry  (Tex.  Civ. 

New  York:  Skaneateles  Water-  App.,  1906),  95  S.  W.  74,  75;  Gal- 
works  Co.  v.  Village  of  Skaneateles,  veston,  Harrisburg  &  San  Antonio 
54  N.  Y.  Supp.  1115,  33  App.  Div.  Ry.  Co.  v.  Davidson  (Tex.  Civ.  App., 
642,  aff'd  161  N.  Y.  154,  55  N.  E.  1906),  93  S.  W.  436.  Compare  97 
562  (not  connected  with  purpose  of    N.  W.  71. 

act  as  entirety  and  remainder  separ-  Utah:  Eureka  v.  Wilson,  15  Utah, 
able  and  capable  of  being  carried  out,  67,  48  Pac.  150  (does  not  invalidate 
is  valid);  People,  Weaver,  v.  Van  whole  where  different  parts  separa- 
De  Carr,  150  N.  Y.  439,  44  N.  E.  ble  and  valid  part  complete  in  itself). 
1040,  aff'g  39  N.  Y.  Supp.  581,  44  Washington:  Pullman  State  Bank 
N.  E.  1040  (is  valid  where  the  valid  v.  Manring,  18  Wash.  250,  51  Pac. 
part  is  not  so  connected,  interwoven  464  (exception  of  bank  stock  from 
and  dependent  on  the  invalid  part  credits);  Skaget  County  v.  Stiles,  10 
that  it  must  fall  with  it);  Gause  v.  Wash.  388, 39  Pac.  116  (remainder  un- 
Boldt,  99  N.  Y.  Supp.  442,  49  Misc.  enforceable  if  existed  independently). 
340,  100  N.  Y.  Supp.  1117.  Wyoming:     State,    Cheyenne,    v. 

North  Dakota:  Martin  v.  Tyler,  Swan,  7  Wyo.  166,  51  Pac.  209,  40 
4   N.  Dak.  278,  25  L.   R.  A.  838,  60   L.  R.  A.  195  (if  invalid  part  sustains 

32  Hanna  v.  International  Petroleum  Co.,  23  Ohio  St.  622. 
360 


OR    CONSTRUCTION    OF   STATUTES  §   235 

of  incorporation.33  So  a  statute  giving  a  lien  and  providing 
for  its  enforcement  against  railroad  companies  which  is  un- 
constitutional in  part  may  be  valid  as  to  the  rest.34  Nor  will  a 
statute  imposing  conditions  upon  foreign  corporations  doing 
business  in  a  State  be  void  as  a  whole  even  though  it  includes 
invalid  provisions,  where  such  invalid  parts  are  separable.35 
So  where  statutes  empower  villages  to  supply  water  for  use  of 
the  inhabitants  and  regulate  water  rates  for  fire  protection 
in  certain  cases  and  provide  for  taxation  to  meet  deficiencies 
from  water  receipts,  such  provisions  as  are  not  essential  may 
be  eliminated.36  And  although  an  attempt  of  a  city  to  make 
exclusive  a  franchise  for  waterworks  may  be  invalid,  still  the 
valid  part  of  the  grant  maybe  enforced.37  So  where  the  mani- 
fe'stly  clear  intention  of  the  legislature  is  to  effect  a  change  in 
a  system  of  waterworks  and  the  maintenance  thereof,  and  by 
eliminating  the  unconstitutional  provisions  of  a  statute  the 
old  system  must  still  be  relied  on,  the  whole  enactment  will 
be  void.38    Where  a  code  provided  that  a  city  could  not  grant 

a  material  relation  to  valid  part  plies  only  where  it  is  plain  that  the 
which  depends  thereon,  whole  act  lawmaking  body  would  have  enacted 
invalid).  the  legislation  with  the  provision 
"An  act  will  not  necessarily  be  eliminated.  It  was  so  said  in  the 
condemned  as  a  whole  because  some  recent  case  of  Howard  v.  Illinois 
separable  part  is  vulnerable  to  con-  Central  Rd.  Co  (Employers'  In- 
stitutional objections.  *  *  *  bility  Cases),  207  U.  S.  463,  28  Sup. 
But,  there  is  authority  for  the  propo-  Ct.  141,  52  L.  ed.  — .  Without 
sition,  that  even  though  the  pro-  stopping  for  a  discussion  of  the 
visions  of  an  act  are  separable,  and  proposition  as  announcing  a  rule  of 
not  dependent  one  upon  the  other,  construction  we  may  accept  it  as 
the  rule  that  the  unconstitutional  correct  in  principles."  Eckerson  v. 
provision  may  be  discarded  and  the  City  of  Des  Moines  (Iowa,  1908),  115 
valid  provision  allowed  to  stand  ap-  N.  W.  177,  188,  per  Bishop,  J. 

33  Kirksey  v.  Florida  &  G.  Plank  M  Skaneateles  Water  Co.  v.  Village 
Road  Co.,  7  Fla.  23,  68  Am.  Dec.  of  Skaneateles,  54  N.  Y.  Supp.  1115, 
426.  33  App.  Div.  642,  aff'd  161  N.  Y.  154, 

34  New   England   Engineering  Co.  55  N.  E.  562. 

v.  Oakwood  St.  Rd.  Co.  (C.  C),  75       37  City  of  Gadsden  v.  Mitchell,  145 

Fed.  162.  Ala.  137,  40  So.  557. 

35  Diamond  Glue  Co.  v.  United  M  Blades  v.  Board  of  Water  Com- 
Statea  Glue  Co.,  187  U.  S.  611,  47  L.  missioners  of  the  City  of  Detroit,  122 
ed.  328,  23  Sup.  Ct.  206.  Mich.  366,  81  N.  W.  271 . 

361 


§  236  CONSTITUTIONAL  LAW— INTERPRETATION 

a  right  to  operate  a  system  of  waterworks  for  a  period  longer 
than  a  certain  number  of  years,  and  an  ordinance  in  question 
granted  such  right  for  a  longer  term  and  an  equal  right  there- 
after with  all  others  supplying  such  city  with  water,  it  was 
held  that  the  grant,  in  so  far  as  it  was  within  the  term  allowed 
under  the  statute,  was  valid,  but  that  it  was  void  for  the  period 
in  excess  thereof,  and  also  that  an  act  of  the  General  Assembly 
legalizing  the  void  portion  of  such  ordinance  was  invalid.39 
Again,  where  a  statute,  which  directs  a  board  of  railroad  com- 
missioners not  to  include  the  embankments,  tunnels,  cuts, 
ties,  trestles  or  bridges  of  railroads  in  the  schedule  of  prop- 
erty of  railroad  companies,  prepared  by  them  for  the  purpose 
of  assessment  of  taxes,  is  in  conflict  with  the  constitution  re- 
lating to  the  assessment  and  taxation  of  property  within  a  State, 
it  does  not  render  the  remainder  of  the  statute  invalid  where  it 
is  separable  therefrom.40  But  while  the  act  of  Congress  of  1906, 
known  as  the  Employers'  Liability  Act,  embraces  subjects 
within  the  authority  of  Congress  to  regulate  commerce,  it  also 
includes  subjects  not  within  its  constitutional  power,  and  the 
two  are  so  interblended  in  the  statute  that  they  are  incapable 
of  separation,  and  the  statute  is  therefore  repugnant  to  the 
Constitution  of  the  United  States  and  non-enforcible.41  So  un- 
reasonable features  of  an  ordinance  and  the  other  portions 
thereof  may  be  so  interdependent  that  the  whole  will  be  void. 
This  rule  has  been  applied  to  an  ordinance  granting  a  franchise 
and  making  a  contract  with  a  heat,  light  and  power  company.42 

§  236.  Intent— Effect  to  Be  Given  to  Every  Part.— The 

purpose  of  construction  or  interpretation  is  to  ascertain  and 
give  effect  to  the  intent.43    The  whole  and  every  part  of  the 

39  Cedar  Rapids  Water  Co.  v.  City  42  Le  Feber  v.  West  Allis,  119  Wis. 
of  Cedar  Rapids,  118  Iowa,  234,  91  608,  97  N.  W.  203,  100  Am.  St.  Rep. 
N.  W.  1031.  917.    See  §§  231,  232,  herein,  as  to 

40  Huntington     v.     Worthen,     120  presumption  and  exception. 

U.  S.  97,  7  Sup.  Ct.  469,  30  L.  ed.  588.        43  Colorado :    Murray    v.   Hobson, 

41  Employers'  Liability  Cases  (How-    10  Colo.  66,  13  Pac.  921. 

ard  v.  Illinois  Central  Rd.  Co.),  207       Illinois:  Andel  v.  People,  106  111. 

U.  S.  463,  464,  28  Sup.  Ct.  141,  52  L.    App.  558. 

ed.  — .  Indiana:  Hunt  v.  Lake  Shore  &  M. 

362 


OR   CONSTRUCTION    OF   STATUTES 


§   236 


statute,  each  section,  provision,  clause  and  word  should  be 
examined,  if  necessary,  to  determine  what  was  intended,  and 
all  should  be  made  to  harmonize  and  be  given  effect,  if  possible; 
the  intention  is  to  be  ascertained  from  the  language  used,  and 
the  words  should  be  applied  to  effectuate  such  intent.44    So 


S.  R.  Co.,  112  Ind.  69,  13  N.  E. 
176. 

Montana:  Power  v.  Choteau 
County,  7  Mont.  82,  14  Pac.  658. 

Nebraska:  State  v.  Drexel  (Neb., 
1906),  106  N.  W.  791;  Little  v.  State, 
60  Neb.  749,  84  N.  W.  248,  51  L.  R.  A. 
717. 

New  York:  Manhattan  Co.  v. 
Laimbeer,  108  N.  Y.  578,  15  N.  E. 
712,  21  Abb.  N.  C.  27,  13  N.  Y.  St.  R. 
869,  28  W.  D.  352,  case  reverses  53 
Supr.  22. 

See  also  cases  cited  throughout 
this  section. 

44  United  States :  United  States  v. 
Goldenberg,  168  U.  S.  95,  18  Sup.  Ct. 
3,  42  L.  ed.  394;  McKee  v.  United 
States,  164  U.  S.  287,  41  L.  ed.  437, 
17  Sup.  Ct.  92;  Atkins  v.  Disintegrat- 
ing Co.,  18  Wall.  (85  U.  S.)  272,  21  L. 
ed.  841;  Woods  v.  Lawrence  County, 
1  Black  (66  U.  S.),  386,  409,  17  L.  ed. 
122;  United  States  v.  Fisher,  2 
Cranch  (6  U.  S.),  358,  2  L.  ed.  304; 
Jasper  v.  United  States,  38  Ct.  CI. 
202;  Lowe  v.  United  States,  38  Ct. 
CI.  170,  case  aff'd  194  U.  S.  193,  48 
L.  ed.  931, 24  Sup.  Ct.  617. 

Alabama:  Hawkins  v.  Louisville 
&  X.  R.  Co.,  145  Ala.  385,  40  So. 
293. 

Alaska:  Chambers  v.  Solner,  1 
Alaska,  271. 

Arkansas:  Wheat  v.  Smith,  50 
Ark.  266,  7  S.  W.  161. 

Colorado:  Denver  v.  Campbell,  33 
Col...  162,  80  Pac.  142. 

District  of  Columbia:  Duehay  v. 
District  of  Columbia,  25  App.  D.  C. 
434. 


Florida:  Goode  v.  State  (Fla., 
1905),  39  So.  461. 

Illinois:  Chudnovski  v.  Eckels, 
232  111.  312,  83  N.  E.  846;  Illinois 
Cent.  R.  Co.  v.  Chicago,  B.  &  N.  R. 
Co.,  122  III.  473,  13  N.  E.  140;  Andel 
v.  People,  106  111.  App.  558;  Gilbert. 
v.  Morgan,  98  111.  App.  281. 

Indiana:  Johnson  v.  Schlosser,  146 
Ind.  509,  45  N.  E.  202,  36  L.  R.  A.  59. 

Kansas:  Noecker  v.  Noecker,  66 
Kan.  347,  71  Pac.  815;  Wenger  v. 
Taylor,  39  Kan.  754,  18  Pac.  911. 

Kentucky:  Commonwealth  v. 
Trent,  25  Ky.  L.  Rep.  1180,  77  S. 
W.  390. 

Louisiana:  See  State  v.  Fontenot, 
112  La.  628,  36  So.  630. 

Massachusetts:  Brown  v.  Tuner, 
174  Mass.  150,  54  N.  E.  510. 

Missouri:  State,  School  Dist.  of 
Sedalia,  v.  Harter,  188  Mo.  516,  87 
S.  W.  941. 

Nebraska:  State  v.  Fink  (Neb., 
1905),  104  N.  W.  1059;  Mcintosh  v. 
Johnson,  51  Neb.  33,  70  N.  W.  522. 

New  York:  School  Board o-f  Brook- 
lyn v.  Board  of  Education  of  N.  Y., 
157  N.  Y.  566,  52  N.  E.  583,  aff'g  54 
N.  Y.  Supp.  185,  34  App.  Div.  49, 
which  affirms  S3  N.  Y.  Supp.  1000, 
25  Misc.  40;  Wehrenberg  v.  New 
York,  New  Haven  &  Hartford  K<1. 
Co.,  108  N.  Y.  Supp.  704;  People, 
Terry,  v.  Keller,  54  N.  Y.  Supp.  Kill, 
35  App.  Div.  493,  case  aff'd  158  N. 
Y.  1S7,  52  N.  E.  1107. 

North  Carolina:  Fortune  v.  Bun- 
combe County  Commrs.,  140  X.  C. 
12  S.  E.  950;  Props4  v.  Southern 
Ry.  Co.,  139  N.  C.  397.  :.l  S.  E.  920 

363 


§    237  CONSTITUTIONAL    LAW — INTERPRETATION 

words  in  different  parts  of  a  statute  must  be  referred  to  their 
proper  connections,  giving  each  in  its  place  its  proper  force.45 
In  seeking  the  intent  of  the  legislature,  in  case  of  ambiguity 
in  the  language  used,  regard  must  be  had  to  the  subject-matter 
of  the  statute,  to  what  the  legislature  may  be  presumed  to 
have  known  and  anticipated;  the  difficulties,  mischief  or  evil 
to  be  remedied,  or  the  cause  inducing  the  enactment  and  the 
general  purpose  and  design  indicated  by  the  act.46 

§  237.  Plain  and  Manifest  Intention.— What  is  clearly  and 
plainly  expressed  evidences  the  legislative  intent,47  and  lan- 
guage which  is  clear  and  unambiguous  must  be  construed  as 
written; 48  nor  is  the  manifest  and  plain  intention  to  be  defeated 

Virginia:  Smith  v.  Bryan,  100  Va.  stances   and   understanding,   at   the 

199,  4  Va.  Sup.  Ct.  R.  121,  40  S.  E.  time  the  law  was  framed."    Bank  of 

652!  Toledo    v.    City   of   Toledo    (Toledo 

West  Virginia:   Building  &  Loan  Bank  v.  Bond),  1  Ohio  St.  622,  637, 

Assoc,  v.  Sohn,  54  W.  Va.  101,  46  per  Bartley,  C.  J. 
S.  E.  222;  Jackson  v.  Kittle,  34  W.        When    there   is  an   ambiguity  in 

Va.  207,  12  S.  E.  484.  the  language  of  a  statute  it  may  be 

45  Building  &  Loan  Assoc,  v.  Sohn,  necessary  to  inquire  into  the  objects 
54  W.  Va.  101,  46  S.  E.  222.  of  the  legislature  in  its  enactment; 

46  United  States :  McKee  v.  United  or  if  it  be  a  private  act,  the  purpose 
States,  164  U.  S.  287,  41  L.  ed.  437,  of  the  beneficiaries  in  asking  for  it; 
17  Sup.  Ct.  92.  but  when  the  language  is  clear,  and 

Louisiana:  Richard  v.  Lazard,  108  needs  no  interpretation,  and  leads  to 

La.  540,  32  So.  559.  no  absurd  conclusion,  this  will  not  be 

Maine:     Gray     v.      Cumberland  done.     Ruggles  v.  Illinois,  108  U.  S. 

County  Coramrs,  83  Me.  429,  22  Atl.  526,  2  Sup.  Ct.  832,  27  L.  ed.  812. 

37g  Where  the  words  of  a  statute  are 

Maryland:   Maryland  Agricultural  obscure  or  doubtful,  the  intention  of 

College  v.  Atkinson,  102  Md.  557,  62  the  legislature  is  to  be  resorted  to  in 

Atl.  1035.  order    to    discover    their    meaning. 

West  Virginia:    Webb    v.  Ritter,  People  v.  Utica  Ins.  Co.,  15  Johns. 

60  W.  Va.  193,  206,  54  S.  E.  484.  (N.  Y.)  357,  8  Am.  Dec.  243. 

"  It    is    a    rule  of    interpretation,  47  Lake  County  v.  Rollins,  130  U. 

of  universal  application,  that  a  law  is  S.  662,  32  L.  ed.  106,  9  Sup.  Ct.  651, 

to  be  so  construed  as  to  carry  out  the  2  Denver  Leg.  N.  193,  case  reverses 

intention  of  the  maker,  and  that  to  34  Fed.  845;  Barnard  v.  Gall,  43  La. 

ascertain  that  intention,  not  merely  Ann.  959,  10  So.  5;  Maryland  Agri- 

is  the  language  of  the  law  to  be  looked  cultural  College  v.  Atkinson,  102  Md. 

to,   but  also   the   subject-matter  to  557,  62  Atl.  1035. 

which   it   relates,   the   evil   provided  48  Walker   v.    Vicksburg,   S.    &  P. 

against,  and  the  attending  circum-  Ry.  Co.,  110  La.  718,  34  So.  749. 

364 


OR    CONSTRUCTION    OF    STATUTES  §    238 

by  construction;49  and,  generally,  there  is  no  room  for  con- 
struction or  interpretation  where  the  language  is  clear  and 
unambiguous,  its  application  plain,  and  its  meaning  certain.50 

§  238.  Natural  and  Reasonable  Effect  and  Construction — 
Ordinary  or  Popular  Meaning — Absurdity  or  Injustice. — In 

whatever  language  a  statute  may  be  framed,  its  purpose  and 
its  constitutional  validity  must  be  determined  by  its  natural 
and  reasonable  effect; 51  and  a  fair,  reasonable  and  natural 
construction  is  to  be  given  if  possible,  unless  it  is  evident  that 
the  language  was  used  in  a  peculiar  or  restricted  sense.52  So 
the  general  terms  of  a  statute  are  to  be  reasonably  construed, 
leaving  the  provisions  of  the  enactment  practically  operative.53 
And  an  ordinance  which  requires  that  the  line  of  a  railroad 
company  shall  be  lighted,  if  sufficiently  definite  to  inform  the 
company  of  such  requirement  and  the  manner  and  time  of 
carrying  out  its  provisions,  even  though  it  does  not  specify 
a  particular  time,  must  be  reasonably  construed.54  Words 
and  phrases  are  presumed  to  be  used  in  their  natural  and  ordi- 
nary sense;  the  common,  popular  or  received  import  of  words 
furnishes  the  general  rule  of  interpretation,55  unless  it  is  ap- 

48  State,  Barton  County,  v.  Kansas  New  York,  New  Haven  &  Hartford 

City,  Ft.  S.  &  G.  R.  Co.  (C.  C),  32  R.  Co.,  108  N.  Y.  Supp.  704. 

Fed.  722.  Reasonable      and    not      technical 

50  United  States  v.  Colo.  &  N.  W.  meaning  should  be  given.  Jasper  v. 
R.  Co.,  157  Fed.  321,  324;  Johnson  United  States,  38  Ct.  CI.  202. 

v.   Southern  Pac.   R.  Co.,   117   Fed.  Reasonable     construction     to     be 

462,  54  C.  C.  A.  508;  Swarts  v.  Siegel,  given   statutes  prescribing  tax  sales. 

117  Fed.  13,  54  C.  C.  A.  399;  Chud-  Kane  v.  Garfield,  60  Vt.  79,  13  Atl. 

novski  v.  Eckels,  232  Rl.  312,  83  N.  800. 

E.   846;   McGowan   v.    Metropolitan  "  Electro  Magnetic  M.  &  D.  Co. 

Ins.  Co.,  60  N.  J.  L.  198,  38  Atl.  671;  v.  Van  Auken,  9  Colo.  204. 

Choctaw,  O.  &  G.  R.  Co.   v.   Alex-  54  St.    Mary,    Village   of,    v.    Lake 

an.ler,  7  Okla.  591,  54  Pac.  42,  aff'g  7  Erie  &  W.  R.  Co.,  00  Ohio  St.  136, 

Okla.  579,  52  Pac.  944.  53  N.  E.  795. 

51  Collins  v.  New  Hampshire,  171  5B  United  States:  Maillard  v.  Law- 
U.  S.  30,  43  L.  ed.  60,  L8 Sup.  Ct.  768;  rence,  L6  How.  (57  U.  S.)  251,  14  L. 
Henderson  v.  New  York,  92  U.  S.  259,  ed.  925;  United  States  v.  Colo.  &  N. 
23  L.  ed.  843.  W.  II.  Co.,  157  Fed.  321. 

52  Opinion  of  Justices,  In  re  fN.  II.,  Alabama:  Western  Union  Tcleg. 
1907),  68  Atl.  873;  Wehrenberg  v.  Co.   v.  State  Board  of  Assessment, 

365 


§  238 


CONSTITUTION/,  L    LAW — INTERPRETATION 


parent  from  the  context  or  otherwise  that  a  peculiar  or  dif- 
ferent meaning  was  intended.56  But  a  well-known  commer- 
cial meaning  will  prevail  over  the  ordinary  meaning  unless  a 
clearly  contrary  intention  is  manifested.57  If  a  legislative 
body  in  this  country  uses  a  term,  without  defining  it,  which 
is  well  known  in  the  English  law,  it  must  be  understood  in 
the  sense  of  that  law.58  In  case  of  a  statute  or  certificate  of 
incorporation,  words  which  define  the  powers  of  the  corpora- 
tion and  are  unambiguous  and  free  from  doubt  as  having  a 
common  and  well-understood  signification  will  be  so  construed.59 
So  in  a  case  relating  to  municipal  bonds  and  aid  to  railroad 
corporations,  that  construction  of  a  statute  should  be  adopted 
which,  without  doing  violence  to  the  fair  meaning  of  the  words 
used,  will  bring  it  in  harmony  with  the  constitution.60  An 
interpretation  or  construction  should,  however,  be  adopted 
which  will  avoid,  if  possible,  an  absurd  or  palpably  unjust 
conclusion  or  consequences.61 


80  Ala.  273,  1  Am.  Elec.  Cas.  844, 
per  Clopton,  J. ;  Wetumpka  v.  Winter, 
29  Ala.  651. 

California:  People,  Atty.  Genl.,  v. 
Reis,  76  Cal.  269.  Compare  Oak- 
land v.  Oakland  Water-Front  Co., 
118  Cal.  160,  50  Pac.  277. 

Florida:  See  Southern  Bell  Teleph. 
&  Teleg.  Co.  v.  D'Alemberte,  39  Fla. 
25,  21  So.  570. 

Illinois:  Chudnovski  v.  Eckels, 
232  111.  312,  83  N.  E.  846. 

Kansas:  Burlington,  K.  &  S.  W. 
R.  Co.  v.  Johnson,  38  Kan.  142,  16 
Pac.  125. 

Louisiana:  State  v.  Berard,  40  La. 
Ann.  172,  3  So.  463. 

Maryland:  Perkinson  v.  State,  14 
Md.  184,  74  Am.  Dec.  522. 

Minnesota:  See  Northwestern 
Teleph.    Exch.    Co.    v.    Minneapolis, 

81  Minn.  140,  83  N.  W.  527,  86  N.  W. 
69,  53  L.  R.  A.  175,  17  Am.  Elec.  Cas. 
179,  183,  per  Lovely,  J. 

Missouri:    McFarland  v.  Missouri, 

366 


K.  &  T.  Ry.  Co.,  94  Mo.  App.  336, 
68  S.  W.  105. 

Texas:  Murray  v.  State,  21  Tex. 
App.  620. 

Virginia:  Postal  Teleg.  Cable  Co. 
v.  Norfolk  &  Western  R.  Co.,  88  Va. 
920,  14  S.  E.  803,  4  Am.  Elec.  Cas. 
225,  230,  per  Lacy,  J. 

56  People,  Atty.  Genl.,  v.  Reis,  76 
Cal.  269;  Burlington,  K.  &  S.  W. 
R.  Co.  v.  Johnson,  38  Kan.  142,  16 
Pac.  125;  State  v.  Berard,  40  La.  Ann. 
172,  3  So.  463. 

"Cadwalader  v.  Zeh,  151  U.  S. 
171,  38  L.  ed.  115,  14  Sup.  Ct.  288. 

58McCool  v.  Smith,  1  Black  (66 
U.  S.),  459,  17  L.  ed.  218. 

59  Riker  v.  Lee,  133  N.  Y.  519,  44 
N.  Y.  St.  R.  63,  30  N.  E.  598,  aff'g 
15  N.  Y.  Supp.  966. 

60  Grenada  County  Supervisors  v. 
Brogden,  112  U.  S.  261,  28  L.  ed.  704, 
5  Sup.  Ct.  125. 

61  United  States:  Chapman,  In  re, 
166  U.  S.  661,  17  Sup.  Ct.  677,  41  L. 


OR   CONSTRUCTION   OF   STATUTES  §  239 

§  239.  Literal  Meaning — Intention  and  Letter  of  Stat- 
ute.— A  statute  is  to  be  interpreted  not  only  by  its  exact 
words,  but  also  by  its  apparent  general  purpose.62  While  the 
primary  and  general  rule  of  statutory  construction  is  that  the 
intent  of  the  lawmaker  is  to  be  found  in  the  language  that  he 
has  used,63  and  although  the  cases  are  few  and  exceptional' in 
which  the  letter  of  the  statute  is  not  deemed  controlling,  and 
only  arise  when  there  are  cogent  reasons  for  believing  that  the 
letter  does  not  fully  justify  and  accurately  disclose  the  intent,64 
still  the  court  will  restrain  the  meaning  of  an  enactment  within 
narrower  limits  than  its  words  import  if  satisfied  that  the 
literal  meaning  of  its  language  would  extend  to  cases  which 
the  legislature  never  designed  to  embrace  in  it ; 65  and  where 
it  is  perfectly  evident  by  the  whole  tenor  of  a  statute  and  other 
acts  in  pari  materia  that  the  legislature  could  not  have  intended 
the  consequences  of  a  literal  construction  of  the  language,  such 
literal  construction  will  not  be  followed.66  Again,  every 
technical  rule  as  to  the  construction  or  force  of  particular  terms 
must  yield  to  the  clear  expression  of  the  paramount  will  of 

ed.    1154;  Oates  v.  National  Bank,        West    Virginia:     Old    Dominion 

100  U.  S.  239,  25  L.  ed.  580.  Bldg.  &  Loan  Assoc,  v.  Sohn,  54  W. 

Colorado:  Murray  v.  Hobson,   10  Va.  101,  46  S.  E.  222. 
Colo.  66,  13  Pac.  921.  02  United   States   v.    Saunders,   22 

Illinois:    Chudnovski   v.     Eckels,  Wall.  (89  U.  S.)  492,  22  L.  ed.  736. 
232  111.  312,  83  N.  E.  846;  People,        63  United    States    v.    Goldenberg, 

Keeney,  v.  Chicago,  152  111.  546,  38  168  U.  S.  95,  18  Sup.  Ct.  3,  42  L.  ed. 

N.  E.  744;  Wabash,  St.  Louis  &Pa-  394;  Wilkinson  v.  Leland,  2  Pet.  (27 

cific  Ry.  Co.  v.  Binkert,  106  111.  298,  U.  S.)  627,  7  L.  ed.  542.     See  §  236, 

306,  per  Shelden,  J.;  Union  County  herein. 
Board  v.  Short,  77  111.  App.  448.  84  United    States    v.    Goldenberg, 

Indiana:     Haggerty    v.    Wagner,  168  U.  S.  95,  18  Sup.  Ct.  3,  42  L.  ed. 

148  Ind.  625,  48  N.  E.  366,  39  L.  R.  394. 

A.  384;  Indianapolis  v.  Huegele,  115        M  McKee  v.  United  States,  164  U. 

End.  581,  18  N.  E.  172;  Hunt  v.  Lake  S.  287,  17  Sup.  Ct.  92,  41  L.  ed.  437; 

Shore  &  M.  S.  R.  Co.,  112  Ind.  69,  13  Brewer  v.  Blougher,  14  Pet,   (39  U. 

N.  E.  176.  S.)  178,  10  L.  ed.  408. 

Kentucky:  Sams  v.  Sams,  85  Ky.        "  Pool  v.  Simmons,  134  Cal.  621, 

396,  3  S,  W.  593;  Bailey  v.  Common-  66  Pac.  872  (a  case  of  construction 

wealth,  II  Bush  (74  Ky.),  688.  of  certain  statutes  as  to  ferry  fran- 

Nebraska:   Logan,  County  of,    v.  chise    and    sale    to    highest    bidder; 

Carnahan  (Neb.,  1903),  95  N.  W.  812.  river  between  two  counties). 

367 


239 


CONSTITUTIONAL    LAW — INTERPRETATION 


the  legislature;67  and  such  legislative  intent,  when  clearly 
expressed,  should  not  be  defeated  by  a  too  rigid  adherence 
to  the  mere  letter  of  the  statute,68  for  the  intention  of  the 
lawmaking  power  will  prevail  even  against  the  letter  of  the 
statute;  a  thing  may  be  within  the  letter  of  the  statute  and 
not  within  its  meaning,  and  within  its  meaning  though  not 
within  its  letter.69    So  the  letter  of  the  statute  is  not  to  be 


87  Wilkinson  v.  Leland,  2  Pet.  (27 
U.  S.)  627,  7  L.  ed.  542. 

68  Oates  v.  National  Bank,  100  U. 
S.  239,  25  L.  ed.  580. 

69  United  States :  Hawaii  v.  Man- 
kichi,  190  U.  S.  197,  47  L.  ed.  1016, 
23  Sup.  Ct.  787. 

Alabama:  Napier  v.  Foster,  80 
Ala.  379. 

Arkansas:  Wilson  v.  Briscoe,  6 
Eng.  (11  Ark.)  44. 

Georgia:  Erwin  v.  Moore,  15  Ga. 
361. 

Idaho:  Chandler  v.  Lee,  1  Idaho, 
349. 

Illinois :  Chudnovski  v.  Eckels,  232 
111.  312,  83  N.  E.  846  (different  intent 
prevails  over  ordinary  meaning); 
Springfield  v.  Greene,  120  111.  269, 
11  N.  E.  261  (intent  in  which  word 
used  controls  its  strict  primary  sig- 
nification); Wabash,  St.  Louis  &  Pa- 
cific Ry.  Co.  v.  Binkert,  106  111.  298. 

Kentucky:  Bailey  v.  Common- 
wealth, 11  Bush  (74  Ky.),  688. 

Louisiana:  Ardry  v.  Ardry,  16  La. 
264. 

Maine:  Gray  v.  Cumberland 
County  Commrs.,  83  Me.  429,  22  Atl. 
376  (intent  not  to  be  defeated  by  ad- 
hering strictly  to  letter). 

Maryland:  Hooper  v.  Creager,  84 
Md.  358,  36  Atl.  359,  35  L.  R.  A.  210, 
s.  c,  84  Md.  195,  35  Atl.  967,  1103, 
35  L.  R.  A.  202  (intention  should 
govern  though  contrary  to  letter). 

Massachusetts:  Staniels  v.  Ray- 
mond, 4  Cush.  (58  Mass.)  314,  316. 

368 


Mississippi:  Ingraham  v.  Speed, 
30  Miss.  410. 

Missouri:  Kane  v.  Kansas  City, 
Ft.  Smith  &  Memphis  Ry.  Co.,  112 
Mo.  34. 

Nebraska:  State  v.  Drexel  (Neb., 
1906),  106  N.  W.  791  (intent  controls 
literal  sense  of  words). 

New  Jersey:  Associates  of  The 
Jersey  Co.  v.  Davison,  29  N.  J.  L. 
415,  424. 

New  York:  Salisbury,  In  re,  44  N. 
Y.  Supp.  291,  19  Misc.  340. 

A  constitution  is  as  effectually 
violated  by  an  act  contravening  its 
spirit  and  intent  as  by  an  act  con- 
travening its  letter.  State,  Saunders, 
v.  Kohnke,  109  La.  838,  33  So.  793. 
But  while  the  spirit  is  to  be  respected 
no  less  than  the  letter,  the  spirit  is  to 
be  collected  chiefly  from  the  words 
used.  Jacobson  v.  Massachusetts, 
197  U.  S.  11,  49  L.  ed.  643,  25  Sup. 
Ct.  358. 

Language  of  statute  controls  in- 
tent. Richmond  v.  Henries  County, 
83  Va.  204,  2  S.  E.  26. 

Intent  prevails  over  letter  where 
latter  would  defeat  former.  Vermont 
Loan  &  Trust  Co.  v.  Whithed,  2  N. 
D.  82,  49  N.  W.  318. 

Matters  within  words  may  be  not 
within  intent  and  so  be  without  pur- 
view of  statute.  Condon  v.  Mutual 
Reserve  Fund,  89  Md.  99,  31  Chic. 
Leg.  N.  273,  42  Atl.  944,  44  L.  R.  A. 
149. 

A  thing  within  the  intention  is  as 


OR   CONSTRUCTION   OF   STATUTES  §   240 

followed  when  it  materially  conflicts  with  or  tends  to  defeat 
its  general  purpose  and  innovate  upon  the  manifest  policy 
of  the  law; 70  nor  where  it  is  clearly  apparent  that  the  applica- 
tion of  the  letter  is  so  unreasonable  that  the  result  following 
could  not  have  been  intended ; 71  and  the  intent  prevails  over 
the  literal  meaning  of  words  and  the  strict  letter  of  law  where 
the  ordinary  signification  would,  if  given  by  interpretation,  lead 
to  absurd  consequences.72 

§  240.  General  and  Specific  Words  or  Clauses — General 
Legislation. — It  is  a  well-settled  principle  of  construction  that 
specific  terms  covering  a  given  subject-matter  will  prevail  over 
general  language  of  the  same  or  another  statute  which  might 
otherwise  prove  controlling.73  And  where  the  language  of  an 
enacting  clause  is  general  and  followed  by  a  provision  by  which 
it  is  restricted,  such  restriction  will  be  strictly  construed  and 
limited  in  its  application  to  objects  reasonably  within  its 
terms.74  When  general  words  follow  particular  words  the 
things  mentioned  generally  must  be  confined  to  the  matters 
incorporated  in  the  particular  words:  that  is,  all  things  that 
may  be  contained  in  the  general  words  must  be  ejusdem  gen- 

much  within  the  statute  as  if  it  were  Dominion   Building  &  Loan  Assoc. 

within  the  letter;  and  a  thing  within  v.  Sohn,  54  W.  Va.  101,  46  S.  E.  222. 

the  letter  is  not  within  the  statute  if  See  §  238,  herein, 
contrary    to    the    intention    of    it.        73  Kepner   v.    United   States,    195 

People  v.  Utica  Ins.  Co.,  15  Johns.  U.  S.  100,  24  Sup.  Ct.  797,  49  L.  ed. 

(N.  Y.)  357,  8  Am.  Dec.  243.  114;  State  v.  Taylor,  7  S.  Dak.  533, 

Evident   verbal   inaccuracy   raises  64    N.    W.    548.      See    Cantrell    v. 

no  difficulty  of  interpretation.    Each  Seaverns,  168  111.  165,  30  Chic.  Leg. 

section  means  what  the  whole  act  N.  89,  48  N.  E.  186,  aff'g  64  111.  App. 

taken  together  shows  the  legislature  273;  Commonwealth  v.  Connecticut 

understood    it    meant.      Sargent    v.  Valley  St.  Rd.  Co.  (Mass.,  1907),  82 

Union  School  District,  63  N.  H.  528.  N.  E.  19. 

70  Webb  v.  Ritter,  60  W.  Va.  193,        Particular   intention    is   exception 
207,  54  S.  E.  484.  and  prevails  over  general  intention 

71  Napier  v.  Foster,  80  Ala.  379.  when  inconsistent.    Jackson  v.  Kittle 

72  Wabash,  St.  Louis  &  Pacific  Ry.  34  W.  Va.  207,  12  S.  E.  484. 

Co.  v.  Binkert,  106  111.  298,  306,  per       u  Southern  Bell  Teleph.  &  Teleg. 
SIh  Men,  J.;  Indianapolis  v.  Iluegele,    Co.  v.  D'Alemberte,  39  Fla.  25,  21 
115  Ind.  581,  18  N.  E.  172;  Sams  v.    So.  570. 
Sams,  85  Ky.  396,  3  S.  W.  593;  Old 

24  369 


§   240  CONSTITUTIONAL   LAW — INTERPRETATION 

eris — of  the  same  kind  or  class  of  those  particularly  mentioned. 
In  addition  to  this  general  rule  there  is  also  a  further  restric- 
tion upon  general  words  which  follow  particulars  by  which 
general  words  will  not  be  held  to  include  anything  which  is 
of  a  class  superior  to  the  class  mentioned  in  the  particular 
words.  This  rule  or  principle  of  construction  is  well  established. 
The  doctrine  of  ejusdem  generis  is,  however,  only  a  rule  of  con- 
struction, and,  like  all  rules,  is  resorted  to  only  as  an  aid  to 
the  courts  in  ascertaining  the  true  intent  of  the  lawgiver,  and 
cannot  override  the  fundamental  principle  that  all  words 
contained  in  a  statute  must,  if  possible,  be  given  their  ordi- 
nary meaning,  and  that  the  intention  must  be  gathered  from 
the  language  employed  in  the  light  of  the  context  and  of  the 
subject-matter  to  which  it  is  applied,  and  when  such  intention 
is  clear  it  must  prevail,  notwithstanding  the  operation  of 
other  rules  which  would  lead  to  a  different  conclusion  or  one 
adverse  to  the  intention,  but  the  ordinary  meaning  of  words 
should,  however,  be  so  restricted  or  expanded  so  as  not  to  lead 
to  an  absurdity  or  inflict  a  great  injustice.75  Again,  in  cases 
of  doubt,  the  general  state  legislation  relating  to  the  subject- 
matter  is  to  control  in  preference  to  a  particular  expression, 
term  or  word  used  in  a  statute.76  Where  street  railroad  com- 
panies are  obligated  by  statute  to  furnish  pupils  of  "public 
schools"  transportation  at  reduced  rates,  and  the  enactment  is 
amended  by  the  insertion  of  the  words  "or  private"  after  the 
word  "public,"  the  word  "private"  is  held  to  be  limited  to 
such  institutions  as  were  ejusdem  generis  with  the  public  schools 
previously  specified,  and  that  a  private  business  college  did 
not  come  within  the  provision.77  If  water  is  supplied  to  a 
city  under  contract,  a  special  statutory  provision  authorizing 
the  levy  of  a  tax  to  pay  therefor,  will  be  given  precedence  over 
a  general  provision  for  levying  any  other  tax  or  special  assess- 

75  Nephi    Plaster    &    Mfg.    Co.    v.    App.  403,  11  Am.    &  Eng.  R.   Cas. 
Juab  County  (Utah,  1907),  93  Pac.    (N.  S.)  771. 

53,  56,  per  Frick,  J.  77  Commonwealth    v.    Connecticut 

76  Massachusetts    Loan    &   T.   Co.    Valley  St.  Ry.  Co.  (Mass.,  1907),  82 
v.  Hamilton,  88  Fed.  588,  59  U.  S.    N.  E.  19. 

370 


OR   CONSTRUCTION   OF   STATUTES  §  241 

merit.78  And  a  general  clause  inserted  after  a  specific  precise 
clause  of  authority  to  use  city  streets,  confers  no  additional 
authority.79 

§241.  Construction  of  Special  Words  and  Clauses  in 
Grants  of  Franchises  or  Privileges  to  Street  Railway,  Rail- 
road and  Electric  Light,  etc.,  Companies. — The  words  "other 
street  railways"  in  a  statute  concerning  franchises  and  the 
designation  of  routes  for  "any  elevated,  underground  or  other 
street  railway  on,  over  or  under  any  street"  extends  to  surface 
street  railways.80  The  word  "track"  does  not  operate  to 
limit  the  right  to  lay  one  track  only  where  the  words  "track 
or  tracks"  are  used  in  other  parts  of  the  same  ordinance.81 
The  term  "plant"  in  a  charter  of  an  electric  light,  heat  and 
power  company  includes  poles  and  wires.82  "Railroad,"  in  its 
ordinary  acceptation  and  enlarged  sense,  includes  all  structures 
which  are  necessary  and  essential  to  its  operation.83  "Other 
appliances,"  in  an  ordinance  authorizing  the  construction  of  a 
street  railroad,  will  cover  any  existing  or  improved  devices  or 
appliances  of  a  like  kind  with  those  mentioned  and  necessary 
or  proper  for  the  purpose  of  running,  moving  or  turning  cars, 
but  will  not  include  a  mere  transfer-house  erected  on  the  street 
surface  for  shelter  and  to  facilitate  transfers.84  In  the  construc- 
tion for  land  grant  acts  in  aid  to  railroads,  "granted  lands" 
are  those  falling  within  the  limits  specially  designated,  the 
title  to  which  attaches  as  of  the  date  of  the  act  of  Congress, 
when  the  lands  are  located  by  an  approved  or  accepted  survey 
of  the  line  of  the  road  filed  in  the  Land  Department:  but  "in- 
demnity lands"  are  lands  selected  in  lieu  of  parcels  lost  by 
previous   disposition  or  reservation   for  other  purposes,   the 

"State,  City  Water  Co.,  v.  Kearney,  "Brown  v.  Gerald,  100  Me.  351, 

49  Neb.  325,  68  N.  W.  533,  aff'g  49  70  L.  R.  A.  472,  61  Atl.  785. 

Neb.  337,  70  N.  W.  255.  S3  United  States  v.  Denver  &  Ki<> 

"Chicago,  D.  &  V.  R.  Co.  v.  Chi-  Grand  R.  Co.,  150  U.  S.  1,  37  L.  ed. 

cago,  121  III.  176,  11  N.  E.  907.  975,  14  Sup.  Ct.  11. 

80  Ruckert  v.  Grand  Ave.  Ry.  Co.,  »'  Hamilton  &  L.  E.  T.  Co.  v.  Ham- 

163  Mo.  260,  63  S.  W.  814.  ilton,  1  Ohio  N.  P.  366. 

M  Workman   v.   Southern   Pac.   R. 
Co.,  129  Gal.  536.  62  Pac.  185. 

371 


§    241  CONSTITUTIONAL    LAW — INTERPRETATION 

title  to  which  accrues  only  from  the  time  of  their  selection.85 
Where  a  statute  provides  that  a  railroad  company  shall  "for 
its  government  be  entitled  to  all  the  powers  and  privileges, 
and  be  subject  to  all  the  restrictions  and' liabilities  imposed" 
upon  another  railroad  company,  the  words  "for  its  govern- 
ment" are  held  to  imply  for  its  regulation  and  control.86  If 
a  statute  authorizes  the  construction  of  a  telegraph  line  along 
"any  railroad"  in  such  a  manner  as  not  to  incommode  the 
public  use  thereof,  such  railroad  right  of  way  may  be  acquired 
by  the  telegraph  company  by  condemnation.87  But  the  right 
to  condemn  a  railroad  right  of  way  is  not  conferred  by  a  stat- 
ute authorizing  the  construction  and  maintenance  of  telegraph 
lines  "along  and  parallel"  to  railroads,  and  which  provides 
for  contracts  for  said  right  of  way  and  for  the  mode  of  com- 
pensation in  case  of  disagreement.88  "Public  use,"  in  an  emi- 
nent domain  statute,  includes  the  use  of  land  for  the  purpose 
of  a  telegraph  line.89  Electric  railways  may  be  permitted  to 
maintain  their  lines  in  highways  under  a  statute  authorizing 
a  like  permission  to  be  granted  by  cities  to  "horse  and  steam 
railroads."  90  A  franchise  subject  to  the  paramount  control 
of  the  streets  by  a  city,  is  only  granted  by  a  statute  authoriz- 
ing corporations  to  transact  "any  business  in  which  electricity 
over  or  through  wires  may  be  applied  to  any  useful  purpose;" 
so  that  the  municipality  may  refuse  a  permit  to  lay  under- 

85  Barney  v.  Winona  &  St.  Peter  14  N.  E.  803,  4  Am.  Elec.  Cas.  225. 
Rd.  Co.,  117  U.  S.  228,  29  L.  ed.  858,    See  s.  c.  87  Va.  349. 

6  Sup.  Ct.  654,  explaining  Winona  &  89  New  Orleans,  Mobile  &  T.  R.  Co. 

St.   Peter  Rd.   Co.   v.    Barney,    113  v.  Southern  &  Atl.  Teleg.  Co.,  53  Atl. 

U.  S.  618,  5  Sup.  Ct.  606,  28  L.  ed.  211,  1  Am.  Elec.  Cas.  190. 

1109.  As  to  construction  of  words  "tak- 

86  Tennessee  v.  Whitworth,  117  U.  ing"  and  "taken"  under  act  entitled: 
S.  139,  6  Sup.  Ct.  649,  29  L.  ed.  "  An  act  to  provide  for  the  expropria- 
g33.  tion  of  lands  for  railroads  and  other 

87  St.  Louis  &  C.  R.  Co.  v.  Postal  works  of  public  utility,"  see  Amet  v. 
Teleg.  Co.,  173  111.  508,  51  N.  E.  382,  Texas  &  Pacific  Ry.  Co.,  117  La.  454, 
distinguishing    Postal    Teleg.    Cable  41  So.  721. 

Co.  v.  Norfolk  &  Western  R.  Co.,  88  90  Buckner  v.  Hart,  52  Fed.  835, 

Va.  920,  14  S.  E.  803.  aff'd  54  Fed.  925.    See  Blair  v.  City 

88  Postal  Teleg.  Cable  Co.  v.  Nor-  of  Chicago,  201  U.  S.  400,  26  Sup. 
folk  &  Western  R.  Co.,  88  Va.  920,  Ct,  427,  50  L.  ed.  801. 

372 


OR   CONSTRUCTION    OF   STATUTES         §§   242,    243 

ground  conduits.91  An  ordinance  which  imposes  a  charge 
upon  telephone  poles  as  a  " consideration  for  the  privilege" 
of  using  the  streets,  is  not  a  tax  either  on  property  or  as  a 
license.92  In  the  Chicago  street  railway  cases  the  principle 
was  applied  that  corporate  privileges  can  only  be  held  to  be 
granted  as  against  public  rights,  when  conferred  in  plain  and 
explicit  terms,  and  an  ambiguous  phrase,  "during  the  life 
hereof,"  in  the  statute  there  under  consideration,  was  held 
not  to  operate  to  extend  existing  contracts  for  the  term  of 
ninety-nine  years  or  to  limit  the  right  of  the  city  to  make 
future  contracts  with  the  companies  covering  shorter  periods.93 

§  242.  Construction  as  to  Conflicting  Railroad  Grants — 
Undivided  Moiety. — The  settled  rule  of  construction  is  that 
where  by  the  same  act,  or  by  acts  of  the  same  date,  grants  of 
land  are  made  to  two  separate  companies,  in  so  far  as  the 
limits  of  their  grants  conflict  by  crossing  or  lapping,  each 
company  takes  an  equal  undivided  moiety  of  the  lands  within 
the  conflict,  and  neither  acquires  all  by  priority  or  location  or 
construction.94 

§  243.  Matters  Incorporated  by  Reference. — Requirements 
contained  in  another  statute  or  document  may  be  incorporated 
in  a  charter  by  generic  or  specific  reference  and,  if  clearly 
identified,  the  charter  has  the  same  effect  as  if  it  itself  contained 
the  restrictive  words,  and  the  question  of  the  constitutionality 
of  the  statute  referred  to  is  immaterial.95  A  code  provision 
which  is  not  a  part  of  the  public  law  of  the  State  at  the  time  a 
charter  or  franchise  is  granted  docs  not  enter  into  and  consti- 
tute a  part  of  the  contract  of  the  State  with  such  corporation  .°8 

91  Edison  Elect.  Ilium.  Co.  of  B.  v.  94  Southern  Pac.  R.  Co.  v.  United 
Hooper,  85  Md.  110,  36  Atl.  113,  6  States,  183  U.  S.  519,  46  L.  ed.  307, 
Am.  Elec.  Cas.  8.  22  Sup.  Ct.  154. 

92  New  Orleans  v.  Great  Southern  95  Interstate  Consolidated  Street 
Tcleph.  &  Teleg.  Co.,  40  La.  Ann.  Ry.  Co.  v.  Commonwealth  of  Mass- 
41,  3  So.  533,  8  Am.  St.  Rep.  502,  2  achusetts,  207  U.  S.  79,  aff'g  187 
Am.  Elec.  Cas.  122.  Mass.  436. 

•»  Blair  v.  Chicago  (1905),  201  U.  9a  Central  Rd.  &  Banking  Co.  v. 
S.  400,  50  L.  ed.  801,  26  Sup.  Ct.  427.    State  of  Georgia,  54  Ga.  401. 

373 


§  244  CONSTITUTIONAL   LAW — INTERPRETATION 

But  a  city  ordinance  becomes  a  part  of  a  charter  of  a  corpo- 
ration where  it  is  subject  to  such  ordinance  under  the  stat- 
ute of  incorporation.97  And  a  reference  to  a  plat  will  operate 
to  embody  it  in  a  grant  of  a  right  to  a  railroad  to  construct 
its  line  in  a  certain  street  according  to  such  plat.98  So  an 
ordinance  will  be  construed  in  accordance  with  a  plat  filed, 
where  such  plat  is  referred  to  as  the  basis  of  construction  of 
a  switch  from  a  street  railway  track  to  a  warehouse  under  a 
grant  of  a  franchise  thereof.99  If  the  time  for  the  construc- 
tion of  a  certain  railroad  is  extended,  a  reference  in  the  statute 
to  its  act  of  incorporation  as  of  a  certain  date  or  year,  though 
stated  incorrectly,  will  refer  to  its  original  charter  where  there 
is  but  one  act  in  that  year  which  relates  to  such  corporation.1 

§  244.  Title  of  Statute.— The  title  is  no  part  of  a  statute,2 
and  it  cannot  be  used  to  control,  extend  or  restrain  the  positive 
provisions  or  plain  and  express  words  in  the  body  of  trie  act 
or  the  obvious  meaning  of  the  statute  itself,  for  where  the 
intent  is  plain  nothing  is  left  to  construction.  In  cases,  how- 
ever, of  doubt  and  ambiguity  resort  may  be  had  to  the  title 
as  an  aid  to  construction.3 

97  Philadelphia  v.  Ridge  Ave.  Pass.  5  Wall.  (72  U.  S.)  107,  18  L.  ed.  518; 
R.  Co.,  143  Pa.  444,  48  Phila.  Leg.  Postmaster  General  v.  Early,  12 
Int.  414,  28  W.  N.  C.  388,  22  Atl.  Wheat.  (25  U.  S.)  136,  6  L.  ed.  577; 
695.  United   States   v.   Union   Pacific   R. 

98  Murray  Hill  Land  Co.  v.  Mil-  Co.,  37  Fed.  551,  2  Denver  Leg.  N. 
waukee  Light,  Heat  &  Traction  Co.,  83. 

110  Wis.  555,  86  N.  W.  199.  Illinois:     South     Park    Commis- 

99  Dulaney  v.  United  Rys.  &  Elec-  sioners  v.  First  Nat.  Bank,  177  111. 
trie  Co.,  104  Md.  423,  65  Atl.  45.  234,  52  N.  E.  365,  31  Chic.  Leg.  N. 

1  Lowell    v.    Washington    County     166. 

Rd.  Co.,  90  Me.  80,  37  Atl.  869,  9  Am.  Indiana:  Rushville  v.  Rushville 
&  Eng.  R.  Cas.  (N.  S.)  115.  National   Gas   Co.,    132  Ind.  575,  15 

2  Patterson   v.   Bark   Eudora,    190    L.  R.  A.  321,  28  N.  E.  853. 

U.  S.  169,  47  L.  ed.  1002,  23  Sup.  Ct.  Michigan:  Stevens  v.  Lake  George 
821.  &  M.  R.  Co.,  82  Mich.  426,  46  N.  W. 

3  United  States:  Cornell  v.  Coyne,    730. 

192   U.  S.    418,    24    Sup.    Ct.  383,         Missouri:    State,  Judah,  v.  Fost 

48   L.   ed.    504;    Patterson   v.    Bark  (Mo.,  1908),  109  S.  W.  737  (title  is 

Eudora,  190  U.  S.  169,  47  L.  ed.  1002,  valuable   aid   in   determining  scope, 

23  Sup.  Ct.  821;  Hadden  v.  Collector,  etc.,  of  statute). 

374 


OR   CONSTRUCTION   OF   STATUTES 


§  245 


§  245.  Same  Subject  Continued — Constitutional  Require- 
ments.— The  object  of  a  constitutional  provision  that  no 
law  shall  embrace  more  than  one  subject,  which  shall  be  ex- 


New  Jersey:  See  O'Hara  v. 
National  Biscuit  Co.,  69  N.  J.  L. 
198,  54  Atl.   241. 

New  York:  Rosin  v.  Lidger- 
wood  Mfg.  Co.,  86  N.  Y.  Supp.  49, 
89  App.  Div.  245. 

Oklahoma:  Choctaw,  O.  &  G.  R. 
Co.  v.  Alexander,  7  Okla.  579,  52 
Pac.  944,  aff'd  7  Okla.  591,  54  Pac. 
421. 

Pennsylvania:  Commonwealth, 
Cambria  County,  v.  Lloyd,  178  Pa. 
308,  35  Atl.  816. 

South  Carolina:  Garrick  v. 
Florida,  C.  &  P.  R.  Co.,  53  S.  C.  448, 
31  S.  E.  334,  13  Am.  &  Eng.  R.  Cas. 
(N.  S.)  541. 

"While  express  provisions  in  the 
body  of  an  act  cannot  be  controlled 
or  restrained  by  the  title  or  pre- 
amble, the  latter  may  be  referred  to 
when  ascertaining  the  meaning  of  a 
statute  which  is  susceptible  of  differ- 
ent constructions.  In  United  States 
v.  Fisher,  2  Cranch  (6  U.  S.),  358, 
386,  2  L.  ed.  304,  Chief  Justice 
Marshall  said:  'neither  party  con- 
tends that  the  title  of  an  act  can 
control  plain  words  in  the  body  of 
the  statute;  and  neither  denies  that, 
taken  with  other  parts,  it  may  assist 
in  removing  ambiguities.  Where  the 
intent  is  plain,  nothing  is  left  to  con- 
struct inn.  When  the  miri'l  labors  to 
discover  the  design  of  the  legislature  it 
everything  from  which  aid  can 
be  derived;  and  in  such  case  the  ti- 
tle claims  a  degree  of  notice,  and  will 
have  its  due  share  of  consideration.' 
United  States  v.  Palmer,  3  Wheat. 
(16  r.  S.i  tiio.  631,  1  L.  ed.  471. 
This  rule  is  especially  applicable  in 
States  whose  constitutions,     *     *     * 


provide  that  'every  act  or  resolution, 
having  the  force  of  law,  shall  relate 
to  but  one  subject,  and  that  shall  be 
expressed  in  the  title.'  Meyer  v.  Car 
Co.,  102  U.  S.  1,  11,  12,  26  L.  ed.  59. 
So,  in  Beard  v.  Rowan,  9  Pet. (34  U. 
S.)  301,  317,  9  L.  ed.  135.  'The 
preamble  in  the  act  may  be  resorted 
to,  to  aid  in  the  construction  of  the 
enacting  clause,  when  any  ambiguity 
exists.'  The  ambiguity  here  referred 
to  is  not  simply  that  arising  from  the 
meaning  of  particular  words,  but 
such  as  may  arise,  in  respect  to  the 
general  scope  and  meaning  of  a  stat- 
ute, when  all  its  provisions  are  ex- 
amined." Coosaw  Mining  Co.  v. 
South  Carolina,  144  U.  S.  550,  563, 
36  L.  ed.  537,  12  Sup.  Ct.  689,  per 
Harlan,  J.  (a  case  of  construction  of 
a  grant  conferring  an  exclusive  min- 
ing right,  franchise  or  privilege  for 
a  period  of  years). 

"Title  of  an  act,  especially  in  con- 
gressional legislation,  furnishes  little 
aid  in  the  construction  of  it,  because 
the  body  of  the  act  in  so  many  cases, 
has  no  reference  to  the  matter  spec- 
ified in  the  title."  United  States  v. 
Union  Pacific  Rd.  Co.,  91  U.  S.  72, 
82,  23  L.  ed.  224,  per  Davis,  J.  (in 
considering  the  "act  to  aid  in  the 
construction  of  a  railroad  and  tel- 
egraph line  from  the  Missouri  River 
to  the  Pacific  Ocean,  and  to  secure  to 
the  government  the  use  of  the  same 
for  postal,  military  and  other  pur- 

")• 
"Act  to  incorporate" — Status  of 
foreign  railroad  corporation.  It  jh 
held  that  the  Louisville  and  Nash- 
ville Railroad  Company  is  a  corpo- 
ration  of    Kentucky,     and     not    of 

375 


§   245  CONSTITUTIONAL    LAW — INTERPRETATION 

pressed  in  its  title,  is  to  prevent  matters  which  sustain  no  re- 
lation to  each  other,  but  are  incongruous,  from  being  united ; 4 
and  the  form  in  which  the  title  of  an  act  shall  be  expressed  is 
a  matter  of  legislative  discretion,  as  such  constitutional  re- 
quirement is  a  matter  merely  of  substance.5  So  a  title  which 
fairly  expresses  the  scope  and  purpose  of  the  enactment  is 
sufficient  to  make  a  law  constitutional.6  The  language  of  the 
title  should  also  be  liberally  construed  under  the  above  con- 
stitutional provision;7  and  the  subject  to  be  considered  is 
that  expressed  in  the  title,  but  if  it  does  not  embrace  the  sub- 
ject of  the  provision  or  is  not  properly  connected  therewith 
such  provision  will  not  be  sustained,  although  every  reasonable 
doubt  should  be  resolved  in  favor  of  validity.8  A  title  to  an 
enactment  need  not  be  and  ought  not  to  be  a  complete  index 
to  or  an  abstract  of  its  contents ; 9  nor  is  it  necessary  that  the 

Tennessee,    having   from    the    latter  adopt  one  of  another  State,  in  such 

State    only  a  license  to  construct  a  form  as  to  establish  the  same  rela- 

railroad   within    its    limits,    between  tions  in  the  law,  between  the  latter 

certain   points,    and   to   exert   there  corporation  and  the  State  of  Tennes- 

some     of     its     corporate      powers,  see,  as  would  exist  in  the  case  of  one 

"Some  stress  is   laid   upon  the  title  created  by  that  State."    Goodlett  v, 

of  that    act,"  namely   "an    act   to  Louisville  Rd.,  122  U.  S.  391,  408, 

incorporate  the  Louisville  and  Nash-  409,  30  L.  ed.  1230,  7  Sup.  Ct.  1254, 

ville    Railroad    Company,"    "as    in-  per  Harlan,  J. 

dicating  a  purpose  to  create  a  cor-  4  Baltimore    &    Ohio    R.    Co.    v. 

poration,  and  not  simply  to  recognize  Jefferson    County    (C.    C),    29    Fed. 

an   existing  one   of    another    State,  305.      Examine   Knight,     Ex     parte 

and  invest  it  with  authority  to  exert  (Fla.  1906),  41  So.  786. 

functions  within  the  State  of  Tennes-  5  Union    Pac.   Co.   v.  Sprague,  69 

see.      While   the   title   of  a  statute  Neb.  48,  95  N.  W.  46. 

should   not   be   entirely   ignored   in  6  State,  Wheeler,  v.  Stuht,  52  Neb. 

determining    the    legislative    intent,  209,  71  N.  W.  941. 

it    cannot    be    used    'to    extend    or  7  State  v.  Coffin  (Idaho,  1903),  74 

restrain  any  positive  provisions  con-  Pac.  962. 

tained  in  the  body  of  the  act,'  and  8  Knight,  Ex  parte  (Fla.,  1906),  41 

is   of   little   weight   even   when    the  So.  736. 

meaning  of  such  provisions  is  doubt-  9  Commonwealth     v.     Broad     St. 

ful.      Hadden   v.   Collector,   5   Wall.  Rapid  Transit  Co.,  219  Pa.  11,  67  At  1. 

(72  U.  S.)  107,  110,  18  L.  ed.  518.  958.     See   also   Skinner  v.   Garnett 

Looking,   then,   at  the  body  of  the  Gold  Mining  Co.,  96  Fed.  735. 

Tennessee  act     *     *     *     we  find  no  Rule  applies  to  title  of  municipal 

language  clearly  evincing  a  purpose  ordinance.      Commonwealth    v.     La 

to  create  a  new  corporation,  or  to  Bar    (Pa.),   5  Lack.   L.   News,   229. 

376 


OR   CONSTRUCTION   OF   STATUTES  §   245 

title  set  forth  every  purpose  where  the  several  objects  of  the 
enactment  are  connected  with  the  chief  object  expressed,  or 
are  merely  subdivisions  of  and  referable  to  such  expressed 
purpose.10  Again,  the  above  constitutional  provision  is  satis- 
fied if  the  law  has  but  one  general  object,  and  that  is  expressed 
in  the  title  and  the  body  of  the  act  is  germane  to  the  title;  u 
and  when  the  title  of  a  statute  of  a  State  clearly  and  distinctly 
expresses  the  whole  object  of  the  legislature  in  the  enactment, 
and  there  is  nothing  in  the  body  of  the  act  which  is  not  germane 
to  what  is  there  expressed,  the  act  sufficiently  complies  with 
a  requirement  in  the  constitution  of  the  State  that  no  law 
"shall  relate  to  more  than  one  subject,  and  that  shall  be  ex- 
pressed in  the  title,"  although  some  details  in  the  execution 
of  the  purpose  of  the  legislature  may  not  be  expressed  in  the 
title.12  The  generality  of  the  title  of  a  state  statute  does  not 
invalidate  it  under  a  provision  of  the  constitution  of  the  State 
that  private  and  local  laws  shall  only  embrace  one  subject, 
which  shall  be  expressed  in  the  title,  so  long  as  the  title  is  com- 
prehensive enough  to  reasonably  include  within  the  general 
subject  or  the  subordinate  branches  thereof,  the  several  ob- 
jects which  the  statute  seeks  to  effect,  and  does  not  cover 
legislation  incongruous  in  itself  and  which  by  no  fair  intend- 
ment can  be  included  as  having  any  necessary  and  proper 
connection.13  If  a  statute  contain  two  objects,  only  one  of 
which  is  mentioned  in  the  title,  the  entire  act  is  not  unconsti- 
tutional, but  only  that  part  not  provided  for  in  the  title.14 

Examine  City  of  Topeka  v.  Raynor,  sufficient.      Dallas   v.   Redman,    10 

f'.l   Kan.  10,  58  Pac.  557.  Colo.  297,  15  Pac.  397. 

10  Baltimore  &  Ohio  Rd.  Co.  v.  Jef-  12  Carter  County  v.  Sinton,  120  U. 
ferson  County  (C.  C),  29  Fed.  305;  S.  517,  30  L.  ed.  701,  7  Sup.  Ct.  650. 
Excelsior  Planting  &  Mfg.  Co.  v.  "  Blair  v.  Chicago,  201  U.  S.  400, 
Green,  39  La.  Ann.  455,  1  So.  873.  26  Sup.  Ct.  427,  50  L.  ed.  801,  rev'g 

11  Mahomet  v.  Quackenbush,  117  132  Fed.  848,  citing  Montclair  v. 
U.  S.  508,  29  L.  ed.  982,  6  Sup.  Ct.  Ramsdell,  107  U.  S.  147,  27  L.  ed. 
858.     See  also   Skinner  v.   Garnett  431,  2  Sup.  Ct.  311. 

Gold  Mining  Co.,  90  Fed.  735.  "State,  Saunders,  v.  Kohnke,  109 

If  by  reasonable  construction  the    La.  838,  33  So.  793.     Sec  Hickman 

subject-matter  of    an   act    is    fairly    v.  State  (N.  J.,  1899),  44  Atl.  1099, 

germane  to  the  expressed  title  it    is    aff'g  62  N.  J.  L.    499,  41    Atl.  942; 

377 


§245 


CONSTITUTIONAL   LAW — INTERPRETATION 


It  is  held  that  courts  cannot  ignore  a  plain  mandatory  provision 
of  the  constitution  as  to  the  titles  of  acts,15  and  that  such 


Golden  Star  Fraternity  v.  Martin, 
59  N.  J.  L.  207,  35  Atl.  908;  St. 
Louis  Southwestern  Ry.  Co.  v. 
Gentry  (Tex.  Civ.  App.,  1906),  95  S. 
W.  74. 

As  to  sufficiency  of  title  and  con- 
stitutionality of  statute  thereunder, 
examine  the  following  decisions: 

United  States :  City  of  Detroit  v. 
Detroit  Citizens'  St.  Ry.  Co.,  184  U. 
S.  368,  46  L.  ed.  392,  22  Sup.  Ct. 
410  (entitled:  "  An  act  to  provide  for 
the  formation  of  street  railways;  em- 
braces provisions  of  act,  making  it 
applicable  to  like  corporations  or- 
ganized and  in  existence);  United 
States  v.  Trans-Missouri  Freight 
Assoc,  166  U.  S.  290,  327,  41  L.  ed. 
1007,  17  Sup.  Ct.  540  (resort  to  title 
in  this  case  declared  to  create  no 
doubt.  A  case  of  monopolies  "  pool- 
ing contracts,"  between  corpora- 
tions); Holy  Trinity  Church  v.  United 
States,  143  U.  S.  451,  36  L.  ed.  226,  12 
Sup.  Ct.  511,  45  Alb.  L.  J.  372;  San 
Antonio  v.  Mehaffey,  96  U.  S.  312,  24 
L.  ed.  816,  18  Sup.  Ct.  423  (an  act 
entitled;  "An  act  to  incorporate  the 
San  Antonio  Railway  Company, " 
which  authorizes  the  city  of  San 
Antonio  to  subscribe  for  the  stock  of 
said  company,  and  issue  bonds  to  pay 
for  the  same  is  not  repugnant  to  state 
constitutional  provision  requiring 
that  "  every  law  enacted  by  the  legis- 
lature shall  contain  but  one  object 
and  that  shall  be  expressed  in  the 
title");  Montgomery  Amusement  Co. 
v.  Montgomery  Traction  Co.  (C.  C), 
139  Fed.  353,  aff'd  Montgomery 
Traction  Co.  v.  Montgomery  Amuse- 
ment Co.,  140  Fed.  988,  72  C.  C.  A. 
682  (title  to  act  amending  code  not 


defective  as  violating  constitution, 
providing  what  the  style  of  law  of 
the  State  should  be;  such  provision 
of  the  constitution  is  mandatory); 
Crowther  v.  Fidelity  Ins.  T.  &  S.  D. 
Co.  (C.  C),  85  Fed.  41,  29  C.  C.  A.  1, 
42  U.  S.  App.  701,  3  Va.  Law  Reg. 
867  (liens  against  mining  and  manu- 
facturing companies  not  embraced 
in  title  and  held  unconstitutional); 
Brooks  v.  Roberts,  78  Fed.  411,  45  U. 
S.  App.  395,  24  C.  C.  A.  158  (an  act 
to  authorize  construction  of  dock  and 
wharf  embraces  provisions  granting 
right  to  individuals  to  erect  and  main- 
tain a  dock  and  collect  wharfage 
with  title  to  certain  benefits);  Tabor 
v.  Commercial  National  Bank,  62 
Fed.  383,  10  C.  C.  A.  429  (provisions 
as  to  liability  of  directors  for  debts  on 
failure  to  file  reports  embraced  in 
title  of  act  for  formation  of  corpora- 
tions; act  valid);  State,  Hunt,  v.  Il- 
linois Cent.  R.  Co.  (C.  C),  33  Fed.  721 
(title  "  relating  to  a  portion  of  "  cer- 
tain submerged  lands  and  statute  dis- 
posing of  fee  in  part  to  city  and  in 
part  to  a  railroad  company  with  right 
to  wharfs;  title  sufficiently  expresses 
subject). 

Alabama:  Rayford  v.  Faulk  (Ala., 
1908),  45  So.  714  (act  to  regu- 
late business  of  insurance,  embraces 
as  cognate,  provision  permitting 
person  to  insure  own  life  for  benefit 
of  estate  and  exempting  proceeds 
from  creditors;  and  act  is  valid); 
Mobile  Dry  Docks  Co.  v.  City  of 
Mobile,  146  Ala.  198,  40  So.  205  (act 
unconstitutional  as  embracing  more 
than  the  subject);  Mobile,  City  of,  v. 
Louisville  &  N.  R.  Co.,  124  Ala.  132, 
26  So.  902  (an  act  to  amend  certain 


15  Wade  v.  Atlantic  Lumber  Co.  (Fla.,  1906),  41  So.  72. 

378 


OR   CONSTRUCTION    OF   STATUTES 


§  245 


constitutional  provisions  as  those  which  are  considered   under 
this  section  are  mandatory.16    A  statute  which  embraces  more 


sections  of  an  act  to  incorporate  a 
certain  railroad  and  to  "add  addi- 
tional sections  thereto;"  constitu- 
tional provision  that  act  shall  em- 
brace but  one  subject  to  be  expressed 
in  title  violated  added  section  con- 
ferring rights  and  powers  on  a  city 
or  village  to  grant  railroads  certain 
rights);  Birmingham  N.  R.  Co.  v. 
Elyton  Land  Co.,  114  Ala.  70,  21  So. 
314  (constitution  providing  that  no 
law  shall  be  revived,  amended  or 
provisions  extended  by  reference  to 
title  only;  right  of  railroad  com- 
panies to  acquire  real  estate  by  gift, 
purchase  or  conmendation);  Mont- 
gomery v.  National  Bldg.  &  Loan 
Assoc,  108  Ala.  336,  18  So.  816  (an 
act  to  regulate  the  business  of  build- 
ing and  loan  associations  with  sub- 
title as  to  state  license  fee;  suffi- 
ciently expressed  in  title). 

California:  Francais  v.  Somps,  92 
Cal.  503,  28  Pac.  592  (requirement 
of  itemized  balance  sheet  from  di- 
rectors covered  by  title  of  act  to  pro- 
tect stockholders  in  corporations  for 
mining  business;  act  valid). 

Colorado:  Burton  v.  Snyder,  22 
Colo.  173,  43  Pac.  1004  (an  act  re- 
lating to  life  and  casualty  insurance 
on  the  assessment  plan;  sufficiently 
expressed  in  title). 

Florida:  Wade  v.  Atlantic  Lum- 
ber Co.  (Fla.  1906),  41  So.  72  (act 
containing  land  grant  held  not 
within  title  to  incorporate  a  railroad 
company). 

Georgia:  Central  of  Ga.  R.  Co. 
v.  State,    104  G.  831,31  S.  E.  518, 


42  L.  R.  A.  518  (constitutional 
provision  limiting  statute  to  one 
subject-matter  expressed  in  title;  not 
violated  by  statute  approving  an 
adopting  code). 

Illinois:  People  v.  People's  Gas- 
light &  Coke  Co.,  205  111.  482,  68  N. 
E.  950  (title  relating  to  gas  com- 
panies; act  not  invalid  which  author- 
izes consolidation  and  merger,  as 
such  authority  is  germane  to  general 
subject);  Hutchinson  v.  Self,  153  111. 
542,  39  N.  E.  27  (provisions  as  to 
municipal  subscriptions  to  stock, 
the  issue  of  bonds  and  modes  of 
exercising  such  power  embraced  in 
title  of  act  to  incorporate  railroad 
company;  act  valid). 

Indiana:  State  v.  Commercial 
Ins.  Co.,  158  Ind.  680,  64  N.  E. 
466  (entitled  an  act  to  require  in- 
surance companies  organized  by 
special  act  to  file  annual  reports; 
does  not  embrace  matters  not  prop- 
erly connected  therewith  as  re- 
quired by  the  constitution  where  the 
act  requires  the  state  auditor  to  ex- 
amine into  details,  etc.,  of  business); 
Maule  Coal  Co.  of  Princeton  v. 
Partenheimer  (Ind.,  1899),  55  N.  E. 
751  (held  not  unconstitutional,  as 
title  embraced  only  one  general  sub- 
ject sufficiently  expressed;  title  re- 
lated to  mines  and  regulation  thereof, 
protection  of  employees  and  right  of 
action  for  death.  Act  March  2,  1891, 
acts  1891 ,  p.  57,  Burns,  Rev.  St.  1894, 
§§  7461  et  seg.);  Pittsburg,  C.  C.  & 
St.  Louis  R.  Co.  v.  Montgomery,  152 
Ind.  1,49  N.  E.  582,  9  Am.  &  Eng.  It. 


"Weaver  v.  Lapsley,  43  Ala.  224; 
State  v.  Miller,  45  Mo.  495;  State  v. 
McCann,  4  Lea  (72  Term.),  1;  State 
v.    McCracken,    42   Tex.    383.      But 


compare  Boston  Min.  &  Milling  Co., 
In  re,  51  C.-d.  624;  Weil  v.  State,  46 
Ohio  St.  450,  21  N.  E.  643. 

379 


§  245 


CONSTITUTIONAL    LAW — INTERPRETATION 


than  one  subject  which  is  enacted  before  a  constitutional  pro- 
hibition as  to  such  acts  is  not  within  the  prohibition.17 


Cas.  (N.  S.)  792,  69  L.  R.  A.  875 
(title  as  to  regulating  liability  of  rail- 
roads and  other  corporations  to  em- 
ployees for  injury;  embraces  prohibi- 
tion of  contracts  releasing  corpora- 
tions from  liability,  also  provisions 
creating  new  liability);  Central  Union 
Teleph.  Co.  v.  Fehring,  146  Ind.  189, 
45  N.  E.  64  (act  regulating  and 
prescribing  duties  of  telegraph  and 
telephone  companies  and  providing 
for  penalties;  not  unconstitutional). 

Iowa:  Youngerman  v.  Murphy, 
107  Iowa,  686,  76  N.  W.  648  (con- 
stitutional requirement  that  tax  and 
object  be  stated;  not  violated  by  act 
authorizing  tax  to  be  imposed  for 
anticipated  purchase  or  construction 
of  waterworks). 

Kansas:  Manley  v.  Mayer,  68 
Kan.  377,  75  Pac.  550  (relating  to  dis- 
solution of  corporations;  act  not  un- 
constitutional as  not  within  title). 

Kentucky:  Conly  v.  Common- 
wealth, 98  Ky.  125,  17  Ky.  L.  Rep. 
678,  32  S.  W.  285  (title  was  cor- 
porations— Private — and  art.  en- 
titled railroads;  statute  constitu- 
tional; title  not  embracing  more  than 
one  subject). 

Louisiana:  Standard  Cotton  Seed 
Oil  Co.  v.  Matheson,  48  La.  Ann. 
1321,  20  So.  713  (authorizing  certain 
companies  to  become  surety  on  bonds 
required  to  be  furnished  by  law; 
title  sufficient). 

Maryland:  State  v.  Schultz  Gas 
Fixture  &  A.  M.  Co.,  83  Md.  58,  34 
Atl.  243  (title  relating  to  taxes  on 
newly  incorporated  corporation;  law 
unconstitutional). 

Michigan:  Bird  v.  Arnott    (Mich., 


1906),  108  N.  W.  646,  13  Det.  Leg. 
N.  531  (title  held  sufficiently  broad 
to  embrace  a  provision  imposing 
tax  on  capital  stock  of  corporations 
organized  under  act  authorizing 
formation  of  corporations  for  water 
power  purposes);  Blades  v.  Board 
of  Water  Commrs.  of  City  of  De- 
troit, 122  Mich.  366,  81  N.  W. 
271  (act,  including  provision  for 
changing  system  of  supporting  water 
works,  held  violative  of  constitu- 
tional provision  that  law  shall  not 
embrace  more  than  one  subject  to  be 
expressed  in  title);  Burrows  v.  Delta 
Transp.  Co.,  106  Mich.  582,  29  L.  R. 
A.  468,  2  Det.  L.  N.  503,  64  N.  W.  501 
(act  to  compel  steam  vessels  to  pro- 
vide fire  screens  and  to  provide  pen- 
alty for  violation;  subject  sufficiently 
expressed  in  title);  Ripley  v.  Evans, 
87  Mich.  217,  49  N.  W.  504,  10  Ry.  & 
Corp.  L.  J.  250,  36  Am.  &  Eng.  Corp. 
Cas.  188  (act  not  unconstitutional  as 
embracing  more  than  one  object  in 
title  where  it  provides  for  stock- 
holders' individual  liability  for  corpo- 
rate debts  for  materials,  and  title  is 
an  act  for  organization  of  telephone 
companies);  Fort  St.  Union  Depot 
Co.  v.  Morton,  83  Mich.  265,  47  N. 
W.  228,  47  Am.  &  Eng.  R.  Cas.  41 
(title  sufficient  to  justify  authority 
granted  to  acquire  land  by  condem- 
nation). 

Minnesota:  First  National  Bank 
v.  How,  65  Minn.  187,  47  N.  W.  994 
(exemption  from  execution  of  life  in- 
surance money  paid  by  co-operative 
or  assessment  companies). 

Missouri:  State  v.  Murlin,  137 
Mo.   297,   38  S.   W.   923   (regulating 


17  Choctaw,  O.  &  G.  R.  Co.   v.   Alexander,  7  Okla.  579,   52   Pac.   944, 
aff'd  7  Okla.  591,  54  Pac.  421. 


380 


OR    CONSTRUCTION    OF    STATUTES 


§246 


§246.  Title  of  Acts  Which  Amend,  Revive  or  Repeal. — 

The  title  to  an  amendatory  act  which  contains  provisions 


blasting  in  mines  and  keeping  of  ex- 
plosives; constitution  not  violated); 
Ward  v.  Gentry  County  Board  of 
Equalization,  135  Mo.  309,  36  S.  W. 
648  (act  entitled  the  assessment  and 
collection  of  revenue;  not  unconsti- 
tutional as  to  requirement  for  of- 
ficers of  banks  to  list  shares  for  tax- 
ation, etc.). 

Montana:  State  v.  Bernheim,  19 
Mont.  512,  49  Pac.  441  (title  of  act  to 
regulate  sales  and  redemption  of 
transportation  tickets  of  carriers; 
embraces  a  provision  for  penalties. 

Nebraska:  West  Point  Water 
Power  &  L.  I.  Co.  v.  State,  49  Neb. 
223,  68  N.  W.  507,  rev'g  49  Neb.  218, 
66  N.  W.  6  (subject  not  within  title); 
State,  Farmers'  Mut.  Ins.  Co.,  v. 
Moore,  48  Neb.  870,  67  N.  W.  876 
(one  subject  only  in  an  act  to  author- 
ize the  organization  of  mutual  in- 
surance companies;  valid);  Western 
Union  Teleg.  Co.  v.  Lowrey,  32  Neb. 
732,  49  N.  W.  707,  10  Ry.  Corp.  L.  J. 
377  (an  act  to  prohibit  extortion  and 
discrimination  in  transmission  of 
telegrams;  statute  not  unconstitu- 
tional as  not  expressing  in  title  sub- 
ject-matter providing  against  relief 
from  liability  by  reason  of  conditions 
in  printed  blanks). 

New  Jersey:  Hickman  v.  State 
(N.  J.  1899),  44  Atl.  1099,  aff'g  62 
N.  J.  L.  499,  41  Atl.  942  (act  to 
provide  for  incorporation  and  regu- 
lation of  insurance  companies;  sep- 
arable provision  as  to  insurance  by 
individuals  does  not  invalidate  as  to 
insurance  by  corporations;  and  reg- 
ulation of  foreign  companies  is  em- 
braced in  scope  of  title);  American 
Surety  Co.  v.  The  Great  White 
Spirit  Co.,  58  N.  J.  Eq.  526,  43  Atl. 


579  (act  supplemental  to  act  not  un- 
constitutional under  provision  re- 
quiring object  of  law  to  be  expressed 
in  title,  where  the  title  of  the  act 
supplemented  relating  to  the  taxation 
of  corporations  is  accurately  set 
forth  in  the  title,  even  though  the 
date  of  approval  is  erroneously 
stated);  Schenck  v.  State,  60  N.  J.  L. 
381,  37  Atl.  724  (the  business  of  indi- 
vidual insurers  is  not  expressed  as  ob- 
ject of  act  to  provide  for  a  regula- 
tion and  incorporation  of  insurance 
companies);  Golden  Star  Fraternity 
v.  Martin,  59  N.  J.  L.  207,  35  Atl. 
908  (an  act  to  incorporate  benevolent 
and  charitable  institutions;  held 
unconstitutional  in  certain  respects 
and  constitutional  in  other  respects); 
Newark  v.  Mount  Pleasant  Cemetery 
Co.,  58  N.  J.  L.  168,  33  Atl.  396  (au- 
thorizing incorporation  of  rural  cem- 
etery associations  and  to  regulate 
cemeteries;  constitution  satisfied). 

New  York:  Parfitt  v.  Furguson, 
159  N.  Y.  Ill,  53  N.  E.  707,  aff'g  38 
N.  Y.  Supp.  466,  3  App.  Div.  176, 
which  affirms  33  N.  Y.  Supp.  1111, 
12  Misc.  278  (act  ratifying  and  con- 
firming lighting  contracts  in  a  cer- 
tain town;  held  not  embraced  in 
scope  of  title). 

Pennsylvania:  Rodenbaugh  v. 
Philadelphia  Traction  Co.,  190  Pa. 
358,  42  Atl.  953,  44  W.  N.  C.  105,  30 
Pitts.  L.  J.  (N.  S.)  24  (does  not  em- 
brace two  subjects  in  violation  of 
constitution  where  provision  is  for 
survival  of  action  for  personal  in- 
juries and  limiting  time  for  bringing 
suit  where  injuries  do  not  result  in 
death). 

South  Carolina:  Bacot,  Ex  parte, 
36    S.    0.    125,    15    S.    E.    204,    50 

381 


§  247  CONSTITUTIONAL   LAW— INTERPRETATION 

germane  to  the  original  statute,  is  sufficient  if  it  designates 
itself  as  an  amending  act  and  refers  to  the  section  of  the  code 
to  be  amended  without  stating  the  substance  of  the  proposed 
amendment.18  A  constitutional  provision  that  all  acts  which 
repeal,  revive  or  amend  former  laws  shall  recite  in  their  cap- 
tion, or  otherwise,  the  title  or  substance  of  the  law  repealed, 
revived  or  amended,  does  not  apply  to  an  act  which  does  not 
expressly  purport  to  repeal,  revive  or  amend  but  only  repeals 
or  amends  by  necessary  implication,  and  is  a  new  and  sub- 
stantive act  conferring  additional  powers  on  railroad  companies 
incorporated  under  general  laws.19  The  title  of  an  enactment 
need  not  set  forth  the  intention  to  repeal  inconsistent  laws.20 

§247.  Title  to  Statutes— Instances— Incorporation— Ex- 
propriation—Railroads— Street  Railroads— Bonds  in  Aid 
of  Railroads— Lien  on  and  Sale  of  Railroad— Electrical 
Conductors— Fraudulent  Elections  in  Corporations— For- 
eign Corporations.21— The  title  to  an  act  of  incorporation  of  a 

Am.  &  Eng.  R.  Cas.  597,  16  L.  R.  A.  mode  by  which  unpaid  subscription 
586  (powers  given  to  corporations  are  to  joint-stock  companies  may  be  re- 
within  title  of  acts  to  promote  certain  covered  by  said  companies,  their  re- 
corporations  under  general  laws).         ceivers  or  assignees,  does  not  embrace 

Tennessee:  Samuelson  v.  State,  mode  for  recovery;  title  insufficient); 
116  Tenn.  470,  95  S.  W.  1012  Powell  v.  Brunswick  County  Super- 
tacts  to  prohibit  traffic  in  non-  visors,  88  Va.  707,  16  Va.  L.  J.  129, 
transferable  signature  tickets  issued  14  S.  E.  543,  36  Am.  &  Eng.  Corp. 
by  common  carriers,  and  to  require  Cas.  625  (provisions  for  subscriptions 
such  carriers  to  redeem  unused  or  and  mode  of  taking  same,  germane  to 
partly  used  tickets,  and  to  provide  object  expressed  in  title  generally  pro- 
punishment  for  violation;  is  not  un-  viding  for  incorporation  of  railroad 
constitutional  as  embracing  more  companies,  and  not  unconstitutional 
than  one  subject  in  title).  as  embracing  more  than  one  object. 

Texas :  St.  Louis  Southwestern  Ry.  1S  McGuire  v.  Chicago,  Burlington 
Co.  v.  Gentry  (Tex.  Civ.  App.,  1906)  &  Quincy  Rd.  Co.,  131  Iowa,  340,  108 
95  S.  W.  74  (constitutional  provision    N.  W.  902. 

that  only  so  much  of  statute  the  sub-  19  Memphis  &  State  Line  Rd.  Co.  v. 
ject  of  which  is  not  expressed  in  title  Union  Ry.  Co.,  116  Tenn.  500,  95 
shall  be  void).  S.  W.  1019. 

Virginia:   Martin  v.  South  Salem        20  Union  Pac.  Ry.  Co.  v.  Sprague, 
Land  Co.,  94  Va.  28,  2  Va.  Law  Reg.    69  Neb.  48,  95  N.  W.  46. 
743,  .26  S.  E.  941,  6  Am.  &  Eng.  Corp.        21  See  extended  note  under  §  245, 
Cas.  (N.  S.)    312    (act   to   prescribe   herein. 

382 


OR   CONSTRUCTION   OF   STATUTES  §  247 

private  corporation  need  not  enumerate  the  powers  and  privi- 
leges which  it  is  intended  by  the  charter  to  confer.22  And 
the  provisions  of  a  general  law  may  by  reference  in  the  title 
to  a  special  act  of  incorporation  of  a  railroad  company  be  made 
applicable  thereto  where  no  constitutional  provision  to  the 
contrary  exists.23  If  the  title  of  a  charter  expresses  a  purpose 
to  expropriate  property  it  will  embrace  the  method  of  such 
expropriation  set  forth  in  the  body  of  the  instrument;  and 
the  purpose  to  incorporate  a  main  line  will  include  a  right  to 
construct  a  short  branch  line  of  railroad.24  But  where  the 
title  to  an  act  of  incorporation  of  a  railroad  company  does  not 
show  that  it  includes  a  land  grant  it  is  void.25  The  title,  how- 
ever, embraces  but  one  object  and  sufficiently  indicates  it 
when  it  shows  that  it  was  intended  to  apply  to  certain  lands 
of  a  railroad  company.26  A  declaration  in  the  title  of  state 
statutes  that  they  concern  horse  railways,  wThere  it  is  apparent 
that  these  terms  were  intended  to  indicate  street  railways  as 
distinguished  from  steam  railways,  will  not,  because  of  a  con- 
stitutional provision  that  the  object  of  the  statute  must  be 
expressed  in  the  title,  prevent  the  city  from  exercising  its  powers 
under  the  statute  in  such  manner  as  to  authorize  the  use  of 
other  power,  such  as  cable  or  electricity.27  And  a  statute 
tegalizing  elections  held  by  the  voters  of  a  county  on  the  ques- 
tion of  issuing  negotiable  bonds  of  the  county,  in  aid  of  certain 
railroad  companies,  and  -authorizing,  on  conditions  named 
therein,  all  the  townships  in  counties  where  the  township 
organization  had  been  adopted,  lying  on  or  near  the  line  of  a 

22  Crease  v.  Babcock,  23  Pick.  (40  Sup.  Ct.  —  (title  was  "to  enable  the 
Mass.)  334,  34  Am.  Dec.  61.  united   companies   to   improve   lands 

23  Quinlan  v.  Houston  &.  T.  C.  R.  under  water  at  Kill  von  Kull  and 
Co.,  89  Tex.  356,  34  S.  W.  738  (dona-  other  places."  Supplemental  to  act 
tions  of  land  to  railroad  companies),  entitled    "to  ascertain   the  rights  of 

24  Morgan's  Louisiana  &  T.  R.  &  the  State  and  of  riparian  owners  in 
S.  R.  Co.  v.  Barton,  51  La.  Ann.  133S,  lands  lying  under  Maters  of  the  Bay 

271.  of  New  York,  and  elsewhere  in  this 

'•"Wade    v.    Atlantic   Lumber   Co.  State"). 
(Fla.).  11  So.  7_'.  -   Blair  v.  Chicago,  201  U.  S.  400, 

"Hoboken    v.    Pennsylvania    R.  26  Sup.  Ct.  427,  50  L.  ed.  801,  rev'g 

Co.,  124  U.  S.  656,  31   L.  ed.  543,  8  132  Fed.  848. 

383 


§    247  CONSTITUTIONAL   LAW — INTERPRETATION 

specified  railroad,  to  subscribe  to  the  stock  of  the  railroad  com- 
pany, and  issue  negotiable  bonds  therefor,  is  a  public  act,  and, 
as  such  act,  it  does  not  conflict  with  a  constitutional  provision 
that  no  private  or  local  law,  which  may  be  passed  by  the  Gen- 
eral Assembly,  shall  embrace  more  than  one  subject,  and  that 
shall  be  expressed  in  the  title.28  But  an  act  entitled  an  act  to 
"Incorporate"  a  named  railroad  company  cannot  be  held  to 
authorize  a  county  to  make  a  subscription  and  issue  bonds  in 
payment  thereof  to  the  company.29  A  statute  of  Illinois, 
however,  which  was  entitled:  "An  act  to  amend  the  articles 
of  the  association  of  the  Danville,  etc.,  Railroad  Company, 
and  to  extend  the  powers  of  and  confer  a  charter  upon  the 
same,"  and  which,  in  the  body  of  the  act,  authorized  incorpo- 
rated townships  along  the  route  to  subscribe  to  its  capital 
stock  on  an  assenting  vote  of  a  majority  of  the  legal  voters, 
and  further  legalized  assents  of  voters  of  certain  townships 
given  at  meetings  held  previous  to  the  passage  of  the  act, 
complied  with  the  requirement  of  the  constitution  of  that 
State  that,  "no  private  or  local  law  which  may  be  passed  by 
the  General  Assembly  shall  embrace  more  than  one  subject, 
and  that  shall  be  expressed  in  the  title."  30  Where  an  act  was 
entitled:  "An  act  for  the  sale  of  the  Pacific  railroad,  and  to 
foreclose  the  State's  lien  thereon,  and  to  amend  its  charter, u 
it  was  held  that  after  certain  sections  providing  for  the  sale, 
a  section  providing  that  in  certain  contingencies  no  sale  should 
be  made,  was  not  a  violation  of  a  constitutional  provision, 
"that  no  law  enacted  by  the  General  Assembly  shall  relate  to 
more  than  one  subject,  and  that  shall  be  expressed  in  its  title;" 
such  provision  is  not  violated  by  any  act  having  various  de- 
tails, provided  they  all  relate  to  one  general  subject.31  A 
statute  is  also  constitutionally  entitled  where  the  title  is: 
"An  act   providing  for  placing  electrical   conductors  under- 

28  Unity  v.  Burrage,  103  U.  S.  447,  U.  S.  508,  29  L.  ed.  982,  6  Sup.  Ct. 
26  L.  ed.  405.  858. 

29  People,    Standerfer,    v.    Hamill,  3l  Woodson  v.  Murdock,  22  Wall. 
125  111.  600,  17  N.  E.  799.  (89  U.  S.)  351,  22  L.  ed.  716. 

30  Mahomet  v.   Quackenbush,    117 

384 


OR    CONSTRUCTION    OF    STATUTES  §    248 

ground  in  cities,  and  for  commissioners  of  electrical  subways."  32 
The  title  of  a  statute  is,  where  the  constitution  so  provides, 
not  only  an  indication  of  the  legislative  intent,  but  is  also  a 
limitation  upon  the  enacting  part  of  the  law.  It  can  have  no 
effect  with  respect  to  any  object  that  is  not  expressed  in  the 
title.  This  applies  to  a  statutory  provision  enacted  under  the 
title  of  "an  act  to-  prevent  fraudulent  elections  in  incorpo- 
rated companies  and  to  facilitate  proceedings  against  them," 
notwithstanding  its  re-enactment  in  subsequent  revisions  of 
the  law  under  the  title  of  "an  act  concerning  corporations," 
and  so,  irrespective  of  the  generality  of  its  language,  does  not 
extend  to  the  right  of  a  stockholder  to  examine  corporate 
books  beyond  that  accorded  to  him  at  common  law,  or  entitle 
him  to  the  remedy  by  mandamus,  save  as  a  discretionary 
writ.33  If  the  title  is  of  an  act  to  regulate  the  business  of 
foreign  corporations  it  does  not  invalidate  the  enactment 
because  it  fails  to  set  forth  that  its  purpose  is  to  punish  those 
who  violate  the  law.34 

§  248.  Punctuation.  —It  is  well  settled  that  punctuation  of 
a  statute  is  not  decisive  of  its  meaning,35  and  so  little  is  it  a 
part  of  an  enactment  that  it  will  be  disregarded  by  the  courts 

32  People,  New  York  Elect.  Lines  originally  passed  will  continue  to  be 
Co.,  v.  Squire,  107  N.  Y.  593,  14  impressed  with  such  limitation,  not- 
N.  E.  820,  12  N.  Y.  St.  R.  832,  28  wit  list  am  ling  its  re-enactment  in  sub- 
Wkly.  Dig.  175,  rev'g  6  N.  Y.  St.  R.  sequent  revisions  of  the  law  under  a 
281.  See  Hanson  v.  Win.  A.  Hunter  title  which  imports  no  such  limita- 
Electric  Light  Co.  (Iowa),  48  N.  W.  tion."  Id.,  202. 
1005,  10  R.  &  Corp.  L.  J.  103,  34  "Hartford  Fire  Ins.  Co.  v.  Corn- 
Am.  &  Eng.  Corp.  Cas.  83.  Exam-  missioner  of  Insurance,  70  Mich.  485, 
ine  Morrow  Title  Illuminating  Co.  v.   38  N.  W.  474. 

Village  of  Mt,  Gilead,  10  Ohio  S.  &  35  Ford  v.  Delta  &  Pine  Land  Co., 
C.  P.  Dec.235  (ordinance held  tovio-  104  U.  S.  602,  17  Sup.  Ct.  230,  41 
late  statute  that  contained  only  one  L.  ed.  590  (a  case  of  exemption  of 
subject,  etc.).  railroad  company  from  taxation;  as- 

M  O'Hara  v.  National  Biscuil  Co.,   sessments    for   local   improvements; 
69  N.  J.  L.  198,54  Ail.  211.    Therule   tax  sales;  recitals  in  deedt  i. 
established  is  "that  a  legislative  en-       Punctuation  will  not  affect  or  con- 
actment  limited   in    its  operation    by    trol    legislative    intent.       Murray    v. 
force  of  the  title  under  which  it  wa-    State,  21   Tex.  App,  620. 

25  385 


§   249  CONSTITUTIONAL    LAW — INTERPRETATION 

or  changed  and  read  with  such  stops  as  to  give  effect  to  the 
whole.36 

§249.  Order  of  Arrangement— Transposition— Altera- 
tion—Omissions— Rejections.— Ordinarily  the  order  of  ar- 
rangement is  of  itself  entitled  to  no  consideration,37  and  words 
may  be  transposed  or  inserted;38  so  clerical  errors  and  omis- 
sions may  be  rectified  in  order  to  arrive  at  the  intent  or  to 
supply  the  obvious  sense.39  But  where  the  language,  read  in 
the  order  of  clauses  as  passed,  presents  no  ambiguity,  courts 
will  not  attempt,  by  transposition  of  clauses,  and  from  what 
it  can  be  ingeniously  argued  was  a  general  intent,  to  qualify 
by  construction  the  meaning.40  Nor  will  an  ambiguous  stat- 
ute be  rewritten  to  make  it  constitutional,  and  words  will  not 
be  written  into  a  statute  where  they  would  operate  to  destroy 
it  in  an  important  particular,  or  where  the  qualifying  words 
would  but  add  to  its  provisions  in  order  to  save  it  in  one  aspect 
and  thereby  destroy  it  in  another.41    But  words  may  be  re- 

38  United  States:  Crawford  v.  621,  64  N.  E.  574.  Examine  Orvil 
Burke,  195  U.  S.  176,  49  L.  ed.  147,  Township  v.  Woodcliff,  61  N.  J.  L. 
25  Sup.  Ct.  9;  Hammock  v.  Loan  &  107,  38  Atl.  685,  and  cases  cited  be- 
Trust  Co.,  105  U.  S.  77,  26  L.  ed.  low  in  this  section. 
1111;  Gwathmay  v.  Clisby  (CO.),  39  Western  Invest.  Bkg.  Co.  v. 
31  Fed.  220,  24  Blatchf.  398.  Murray    (Ariz.),    56    Pac.    728,     16 

Alabama:  Cook  v.  State,  110  Ala.  Bkg.  L.  J.  349.  See  Landrum  v. 
40,  20  So.  360.  Flannigan,  60  Kan.  436,  56  Pac.  753; 

Maryland:  Munger  v.  Board  of  McKee  Land  &  Improv.  Co.  v. 
State  Medical  Examiners,  90  Md.  Swikehard,  51  N.  Y.  Supp.  399,  23 
659,  45  Atl.  891.  Misc.  21,  aff'd  71  N.  Y.  Supp.  1141, 

Ohio:  Allbright  v.  Payne,  43  Ohio  63  App.  Div.  553;  Murray  v.  State, 
St.  8.  21  Tex.  App.  620. 

Oregon:  State  v.Banfield,  43  Oreg.        40  Doe   v.   Considine,   6  Wall.    (73 
287,  72  Pac.  1093;  State,  Baker,  v.    TJ.  S.)  458,  18  L.  ed.  869. 
Payne,  22  Oreg.  335,  29  Pac.  787.  41  Employers'       Liability       Cases 

South  Carolina:  Archer  v.  Ellison,  (Howard  v.  Illinois  Cent.  Rd.  Co.), 
28  S.  C.  238.  207  U.  S.  463,  501,  28  Sup.  Ct.  141, 

Texas:  Murray  v.  State,  21  Tex.  52  L.  ed.  —  (an  act  addressed  to 
App.  620.  common   carriers   engaged   in   inter- 

37  National  Bank  of  The  Republic  state  commerce  imposing  liability  as 
v.  St.  Joseph  (C.  C),  31  Fed.  216,  to  employees— regulation  by  Congress 
24  Blatchf.  436.  of   relation   of   master   and   servant 

38  Slinguff  v.  Weaver,  66  Ohio  St.    confined    to    interstate    commerce). 

386 


OR    CONSTRUCTION    OF    STATUTES  §   250 

jected  where  they  cannot  be  given  any  effect  consistent  with 
the  plain  intent.42 

§  250.  Construction  of  Proviso  or  Exception. —The  general 
purpose  or  office  of  a  proviso  in  a  statute  is  to  carve  exceptions 
out  of  the  body  of  the  act;  to  qualify  the  operation  of  the  act 
or  of  some  part  of  it;  to  except  something  from  the  enacting 
clause,  or  to  qualify  its  generality,  or  to  exclude  some  possible 
ground  of  misinterpretation  of  its  extending  to  cases  not  in- 
tended by  the  legislature  to  be  brought  within  its  purview.43 
In  the  absence  of  an  apparent  intention  to  the  contrary,  a 
proviso  or  an  exception  has  reference  only  to  the  immediately 
preceding  paragraph  or  clause,  or  the  section  to  which  it  is 
attached  and  is  to  be  strictly  construed.  But  these  rules  are 
not  absolute  and  the  proviso  is  often  used  in  other  senses  than 
those  above  stated;  it  will  not  be  used  to  defeat  the  grant  or 
the  obvious  intent  of  the  statute ;  the  entire  enactment  may  be 
considered,  and  if  from  the  context  and  the  subject-matter  it  is 
obvious  that  its  meaning  should  be  extended  beyond  what  it 
technically  imports  it  may  be  so  construed.44    So  a  proviso  in 

See  Hilburn  v.  St.  Paul,  M.  &  M.  Ry.  128  U.  S.  174,  32  L.  ed.  377,  9  Sup. 

Co.,  23  Mont,  229,  58  Pac.  811,  551  Ct.  47,  16  Wash.  L.  Rep.  749;  Ryan 

(citing    numerous    cases);    State    v.  v.  Carter,  93  U.  S.  78,  83,  84,  23  L. 

Reneau  (Neb.,  1905),  106  N.  W.  451.  ed.  807;  Minis  v.  United  States,  15 

Words  cannot  be  inserted  by  court  Pet.   (40  U.  S.)  423,  10  L.  ed.  791; 

when  not  used  by  legislature.    Steere  Deitch    v.    Staub,    115    Fed.    309; 

v.  Brownell,   124  111.   27,  15  N.   E.  Wartensblen  v.   Haithcock,  80  Ala. 

26.  565;  Chicago  v.  Phoenix  Ins.  Co.,  126 

Words  cannot  be  imported  into  a  111.  276,  18  N.  E.  668;  Traders'  Nat. 

statute.     Baker  v.  Payne,  22  Oreg.  Bank  v.  Lawrence  Mfg.  Co.,  96  N.  C. 

335,  29  Pac.  787.  298. 

Nothing  should  be  added  to  ex-  "  United   States:   Georgia  R.  & 

tend  the  words  beyond  their  plain  Bkg.  Co.  v.  Smith,  128  U.  S.  174,  32 

import.     McCarthy  v.  McCarthy,  20  L.  ed.  377,  9  Sup.  Ct.  47,  16  Wash.  L. 

App.  D.  C.  195.  Rep.  749;  Carter,  Webster  &  Co.  v. 

42  Leavitt  v.  Loverin,  64  N.  H.  607,  United  States,  137  Fed.  978,  aff'd  143 
1  L.  R.  A.  58,  15  Atl.  414.  See  Jack-  Fed.  256;  Detroit  Citizens'  St.  R. 
son,  Ex  parte,  140  Fed.  266,  rev'd  Co.  v.  Detroit,  64  Fed.  628,  12  C.  C. 
United  States  v.  Jackson,  143  Fed.  A.  365  26  L.  R.  A.  667,  1  Am.  & 
783.  See  also  cases  cited  under  third  Eng.  R.  Cas.  (N:  S.)  71. 
preceding  note  herein.  Alabama:   Wartensblen  v.  Haith- 

43  Georgia  R.  &  Bkg.  Co.  v.  Smith,  cock,  80  Ala.  565. 


§   251  CONSTITUTIONAL    LAW — INTERPRETATION 

an  act  incorporating  a  railroad  company  may  be  used  in  other 
senses  than  that  of  its  technical  meaning,  so  that  the  statute 
will  not  exempt  the  corporation  created  by  it,  or  its  successors, 
from  the  duty  of  submitting  to  reasonable  requirements  con- 
cerning transportation  rates  made  by  a  railroad  commission 
created  by  the  State.45  Nor  will  a  proviso  be  permitted 
technically  to  operate  so  as  to  defeat  the  grant  of  a  franchise, 
the  purpose  of  which  is  the  performance  of  a  public  duty.46 
Again,  although  not  in  accord  with  its  technical  meaning,  or 
its  office  when  properly  used,  a  frequent  use  of  the  proviso  in 
Federal  legislation  is  to  introduce  new  matter  extending, 
rather  than  limiting  or  explaining,  that  which  has  gone  before.47 
Those  who  set  up  any  such  exception  must  establish  it  as  being 
within  the  words  as  well  as  the  reason  thereof.  No  known 
rule  of  law,  however,  requires  its  interpretation  according  to 
its  literal  import,  when  its  evident  intent  is  different.48  Mere 
convenience  will  not  justify  the  introduction  of  exceptions  not 
suggested  by  the  language  used.49 

§251.  Liberal  Construction— Meaning  Extended— Impli- 
cation. — Although  a  liberal  construction  of  a  statute  may  be 
proper  and  desirable,  yet  the  fair  meaning  of  the  language 
used  must  not  be  unduly  stretched  for  the  purpose  of  reaching 
any  particular  case  which,  while  it  might  appeal  to  the  court, 
would  plainly  be  beyond  the  limitations  contained  in  the 
statute.50  An  act  to  regulate  commerce  should  receive  a  lib- 
Illinois:  Huddleston  v.  Francis,  sylvania  Joint  Lumber  &  Land  Co., 
124  111.  195,  16  N.  E.  243.  121    Pa.    143,   22   W.  N.   C.   303,  15 

North    Carolina:     Traders'    Nat.    Atl.  509,  6  Am.  St.  Rep.  766. 
Bank    v.    Lawrence    Mfg.    Co.,    96        47  Interstate    Commerce    Commis- 
N.  C.  298.  sion  v.  Baird,  194  U.  S.  25,  24  Sup. 

Oklahoma:     Leader   Printing  Co.    Ct.  563,  48  L.  ed.  860. 
v.  Nichols,  6  Okla.  302,  50  Pac.  1001.        48  Ryan  v.  Carter,  93  U.  S.  78,  83, 

See  Southern   Pacific  Rd.   Co.   v.    84,  23  L.  ed.  807,  per  Davis,  J. 
Orton,   32  Fed.   457,   472,   473,   per        49  Morris  Coal  Co.   v.   Donley,   73 
Sawyer,  J.  Ohio  St.  298,  76  N.  E.  945. 

45  Georgia  R.  &  Bkg.  Co.  v.  Smith,  "United  States  v.  St.  Anthony 
128  U.  S.  174,  32  L.  ed.  377,  9  Sup.  Rd.  Co.,  192  U.  S.  524,  24  Sup.  Ct 
Ct.  47,  16  Wash.  L.  Rep.  749.  333,  48  L.  ed.  548  (grants  in  aid  of 

46  West  Branch  Boom  Co.  v.  Penn-   railroads). 

388 


OR    CONSTRUCTION    OF   STATUTES  §    252 

eral  construction  in  favor  of  its  purpose,  although  where  a 
common  carrier  seeks  relief  it  must  be  clearly  apparent  that 
the  claimed  right  has  been  conferred  or  forbidden,  and  equity 
will  not  by  a  strained  construction  extend  the  meaning  in 
favor  of  a  complaining  carrier  whose  position  is  such  as  not 
to  demand  favorable  consideration.51  While  a  legislature  may 
prescribe  regulations  for  the  management  of  business  of  a 
public  nature,  even  though  carried  on  by  private  corporations, 
with  private  capital,  and  for  private  benefit,  the  language  of 
such  regulations  will  not  be  broadened  by  implication.52  But 
a  statute  restraining  any  person  from  doing  certain  acts,  ap- 
plies equally  to  corporations,  or  bodies  politic,  although  not 
mentioned.53  An  implication  created  by  construction  from 
subsequent  words  will  not,  unless  such  implication  is  very 
necessary  and  clear,  restrain  prior  explicit  provisions  embrac- 
ing in  terms  an  entire  class  of  cases.54  The  meaning  of  the 
legislature  may  be  extended  beyond  the  precise  words  used  in 
the  law,  from  the  reason  or  motive  upon  which  the  legisla- 
ture proceeded,  from  the  end  in  view,  or  the  purpose  which 
was  designed;  the  limitation  of  the  rule  being  that  to  extend 
the  meaning  to  any  case,  not  included  within  the  words,  the 
case  must  be  shown  to  come  within  the  same  reason  upon 
which  the  lawmaker  proceeded,  and  not  a  like  reason.55 

§  252.  Strict  Construction. — The  rule  of  strict  construction 
applies  to  statutes  creating  a  new  liability; 56  to  a  statute  au- 
thorizing the  levy  of  a  tax  by  a  municipality; 57  to  statutes  as 
to  eminent  domain  which  grant  power  to  private  corporations; 58 

51  Kentucky    &    I.    Bridge   Co.    v.  v.  St.  Joseph  (C.  C),  31  Fed.  216,  24 

Louisville  &  N.  R.  Co.   (C.  C),  37  Blatchf.   436. 

Fed.  567,  2  L.  R.  A.  289,  2  Inters.        "  United    States    v.    Freeman,    3 

Comm.  Rep.  351.  How.  (44  U.  S.)  556,  11  L.  ed.  724. 

" Chesapeake   &   P.   Tel.   Co.   v.       "Hunt  v.  Bums,  95 N.  W.  1110. 
Manning,   186  U.  S.  238,  46  L.  ed.       '■■  Drummer  v.  Cox,  165  111.  648, 

1 144,  22  Sup.  Ct.  881.  46  N.  E.  7  1 6. 

83  People    v.    Utica    Ins.    Co.,    15        iH  Poughkeepsie  Bridge  Co.,  In  re, 

Johns.  (N.  Y.)  357,  8  Am.  Dec.  243.  108  N.  Y.  483,  15  N.  E.  681.    Com- 

54  National   Hank  of  The  Republic  pare  Chesapeake   &   Ohio  ('anal  Co. 

389 


§   253  CONSTITUTIONAL   LAW — INTERPRETATION 

to  enactments  taking  away  or  changing  fundamental  rights; 59 
to  every  statute  derogatory  of  rights  of  property  or  which 
takes  away  the  rights  of  a  citizen ; 60  to  enactments  penal  in 
character  as  in  case  of  one  making  trustees  of  a  corporation 
personally  liable  in  certain  cases; 61  or  one  prohibiting  com- 
binations and  requiring  reasonable  transportation  facilities; 62 
or  one  allowing  recovery  for  wrongful  death  caused  by  officers, 
etc.,  of  a  corporation;63  or  one  relating  to  false  representa- 
tions as  to  capital  stock  and  accumulation,  made  by  insurance 
companies.64 

§  253.  Common  Law — Statutes  in  Derogation  of. — Strict 
construction  is  to  be  given  statutes;65  or  statutory  authority 
in  derogation  of  common  law.66  So  the  intent  to  change  a  rule 
of  common  law  should  be  clearly  shown  in  the  statute; 67  for 
common  law  rights  are  not  to  be  taken  away  by  doubtful 
implications  and  affirmative  words.6  Again,  where  a  well- 
established  rule  of  that  law  is  attempted  to  be  modified  or 
abrogated  by  statute  the  plain  import  of  the  words  used 
should  limit  the  interpretation  if  thereby  they  can  give  reason- 
able effect  to  the  statute.69  Statutes  in  derogation  of  the  com- 
mon law  and  penal  statutes  are  not  to  be  construed  so  strictly 
as  to  defeat  the  obvious  intention  of  Congress  as  found  in  the 
language  actually  used,  according  to  its  true  and  obvious  mean- 

v.  Key,  3  Cranch  (U.  S.  C.  C),  599,  Flouring  Mills  Co.,  77  Minn.  256,  79 

603-609,  Fed.  Cas.  No.  2,649.  N.  W.  974. 

69  Crowcler    v.    Fletcher,    80    Ala.  65  Butte  Hardware  Co.  v.  Sullivan, 

219.  7  Mont.  307,  16  Pac.  588. 

60  Vanhorne  v.  Dorrance,  2  Dall.  ee  Ramsey  v.  Hommel,  68  Wis. 
304.  12,  31  N.  W.  271. 

61  Park  Bank  v.  Remsen,  158  U.  S.  67  Rasin  v.  Lidgerwood  Mfg.  Co., 
337,  29  L.  ed.  1008,  15  Sup.  Ct.  891;  86  N.  Y.  Supp.  49,  89  App.  Div.  245. 
Chase  v.  Curtis,  113  U.  S.  452,  5  Sup.  68  Ryalls  v.  Mechanics  Mills,  150 
Ct.  —  28  L.  ed.  1038.  Mass.  190,  194,  5  L.  R.  A.  667,  22  N. 

62  Clark  v.  American  Express  Co.,  E.  766. 

130  Iowa,  254,  106  N.  W.  642.  w  Felix  v.   Griffiths,   56   Ohio   St. 

63  Casey  v.  St.  Louis  Transit  Co.,  39,  45  N.  E.  1092,  37  Ohio  L.  J.  139. 
116  Mo.  App.  235,  91  S.  W.  419.  See  McCarthy  v.  McCarthy,  20  App. 

"Langworthy  v.  C.  C.  Washburn    D.  C.  195. 

390 


OR  CONSTRUCTION  OF  STATUTES  §  254 

ing.70  Where  the  charter  of  a  state  bank  provides  for  addi- 
tiona  liability  of  the  shareholders  as  sureties  to  the  creditors 
of  the  bank  for  all  contracts  and  debts  to  the  extent  of  their 
stock  therein,  at  the  par  value  thereof,  at  the  time  the  debt 
was  created  a  shareholder  is  not  liable  for  a  debt  created 
after  he  has  actually  parted  with  his  stock  and  the  transfer 
has  been  regularly  entered  on  the  books  of  the  bank.  The 
additional  liability  of  shareholders  of  corporations  depends  on 
the  terms  of  the  statutes  creat'ng  it,  and  as  such  a  statute  is 
in  derogation  of  the  common  laws  it  cannot  be  extended  be- 
yond the  words  used.71  In  the  Charles  River  Bridge  case  the 
following  decision  was  rendered :  The  grant  to  the  bridge  com- 
pany is  of  certain  franchises,  by  the  public,  to  a  private  corpo- 
ration; in  a  matter  where  the  public  interest  is  concerned, 
there  is  nothing  in  the  local  situation  of  this  country,  or  in 
the  nature  of  our  political  institutions,  which  should  lead  this 
court  to  depart  from  the  rules  of  construction  of  statutes, 
adopted  under  the  system  of  jurisprudence  which  we  have  de- 
rived from  the  English  law;  no  good  reason  can  be  assigned, 
for  introducing  a  new  and  adverse  rule  of  construction  in 
favor  of  corporations,  while  we  adopt  and  adhere  to  the  rules 
of  construction  known  to  the  English  common  law  in  every 
other  case,  without  exception.72 

§  254.  Public  Grants  of  Franchises,  Privileges,  etc.  — 
Construction  Against  Grantee. — Public  grants  of  franchises, 
powers,  rights,  privileges  or  property  in  which  the  government 

Common  law  changed  by  statute  L.  Rep.  1220,  71  S.  W.  1,  69  S.  W. 

is   modified   only   to   extent   clearly  1095. 

warranted    by    the    language    used.  Statutes  in  derogation  of  common 

Johnson  v.  Southern  Pacif.  Co.,  117  law  to  be  liberally  construed  where 

Fed.  462,  54  C.  C.  A.  508.  statute   so  provides.     Gans'  Estate, 

70  Johnson  v.  Southern  Pacific  Co.,  In  re  (Utah,  1906),  86  Pac.  757. 

196  U.  S.  1,  49  L.  ed.  872,  25  Sup.  Ct.  "  Brunswick  Terminal  Co.  v.  Nat. 

158.  Bk.  of  Bait.,  192  U.  S.  386,  48  L.  ed. 

Rule  that  statutes  in  derogation  of  491,  24  Sup.  Ct.  — . 

common  law  are  to  1«'  strictly  con-  ''Charles  River  Bridge  v.  Warren 

etrued  is  held  not  to  apply  to  a  re-  Bridge,  11  Pet.  (36  U.  S.)  420,  9  L. 

vision   which    is   to  be   liberally  con-  ed.   77:5.      Sec   Kice  v.   Railroad  Co., 

strued.     Dillehay  v.  Hickey,  24  Ivy.  1  Black  (66  U.  S.),  358,  17  L.  ed.  147; 

391 


§    254  CONSTITUTIONAL    LAW — INTERPRETATION 

or  public  has  an  interest  must  be  construed  in  favor  of  the 
grantor  and  strictly  against  the  grantee;  whatever  is  not  clearly, 
plainly  and  unequivocally  granted  is  withheld;  nothing  passes 
by  implication  except  it  be  necessary  to  carry  into  effect  the 
obvious  intent  of  the  grant.  This  rule  applies  in  cases  of  doubt 
or  ambiguity  in  the  meaning  or  interpretation  of  language  used 
or  where  the  grant  is  susceptible  of  two  constructions,  for  if 
the  meaning  is  plain  and  clear  and  the  intention  obvious  there 
is  no  room  for  construction.  Private  corporations  and  indi- 
viduals are  within  the  above  rule,73  which  also  applies  to  arti- 

Peterson  v.  Gittings,  107  Iowa,  306,  Eng.  R.  Cas.  607,  9  Ry.  &  Corp.  L.  J. 
77  N.  W.  1056,  rev'g  72  N.  W.  662.  342,  43  Alb.  L.  J.  328  (corporate  con- 
73  United  States:  Cleveland  Elec-  tract;  alienation  of  franchise;  ultra 
trie  Ry.  Co.  v.  Cleveland,  204  U.  S.  vires  agreement;  breach  of  duty  to 
116,  130,  51  L.  ed.  — ,  27  Sup.  Ct.  public);  Slidell  v.  Grandjean,  111  U. 
—;' Cornell  v.  Coyne,  192  U.  S.  418,  S.  412,  4  Sup.  Ct.  475,  28  L.  ed.  321; 
24  Sup.  Ct.  383,  48  L.  ed.  504;  Long  Turnpike  Co.  v.  State,  3  Wall.  (70 
Island  Water  Supply  Co.  v.  Brook-  U.  S.)  210,  18  L.  ed.  180  (grant  of 
lyn,  166  U.  S.  685,  696,  41  L.  ed.  franchise;  exclusive  privilege;  un- 
1165,  17  Sup.  Ct.  718,  per  Brewer,  J.  lawful  charter  to  rival);  Jefferson 
(condemnation  of  water  supply;  Bank  v.  Skelly,  1  Black  (66  U.  S.), 
water  companies;  exclusive  privi-  436,  17  L.  ed.  173  (bank  charters; 
leges;  statutes  and  contracts;  legis-  exemption  from  taxation;  franchise 
lative  powers;  municipal  powers);  grant  construed;  waiver  of  sover- 
Pearsall  v.  Great  Northern  R.  Co.,  eignty);  Ohio  Life  Ins.  &  Trust  Co. 
161  U.  S.  646,  16  Sup.  Ct.  705,  40  L.  v.  Debolt,  16  How.  (57  U.  S.)  416,  14 
ed.  838,  rev'g  73  Fed.  933  (consoli-  L.  ed.  997  (statutes  as  to  insurance 
dation  of  railroads;  parallel  and  com-  company;  exemption  from  taxation; 
peting  lines;  statutes;  powers  not  di-  obligation  of  contract);  Charles  River 
rectly  contemplated;  subsequent  leg-  Bridge  v.  Warren  Bridge,  11  Pet.  (36 
islative  restriction);  Hamilton  Gas  U.  S.)  420,  9  L.  ed.  773;  United 
Light  &  Coke  Co.  v.  Hamilton  City,  States  v.  Arredondo,  6  Pet.  (31  U.  S.) 
146  U.  S.  258,  13  Sup.  Ct.  90,  36  L.  ed.  691,  736,  8  L.  ed.  547,  564;  Helena, 
963  (grant  to  corporation  of  special  City  of,  v.  Helena  Water  Works  Co., 
privileges;  obligation  of  contract;  122  Fed.  1;  Omaha  Horse  R.  Co.  v. 
municipal  powers;  contract  for  gas  Cable  Tramway  Co.  (C.  C),  30  Fed. 
supply;  exclusive  privilege);  Stein  v.    324. 

Bienville  Water  Supply  Co.,  141  U.        Georgia:  Macon  &  W.  R.  v.  Davis, 
S.  67,  35  L.  ed.  622,  11  Sup.  Ct.  892    13  Ga.  68. 

(grant  of  water  franchise;  exclusive       Illinois:    Mills    v.   County  of    St. 
right;  obligation   of  contract);   Cen-    Clair,  7  111.  197. 
tral  Transportation  Co.  v.  Pullman's       Louisiana:   State  of  Louisiana  v. 
Palace  Car  Co.,  139  U.  S.  24,  35  L.    Morgan,  28  La.  Ann.  482. 
ed.  55,  11  Sup.  Ct.  478,  45  Am.  &        Maine:    Rockland   Water    Co.  v. 

392 


OR   CONSTRUCTION    OF    STATUTES 


§  254 


cles   of  association   organizing  a   corporation   under   general 
laws  which  are  a  substitute  for  a  charter  from  the  legislative 


Camden  &  R.  Water  Co.,  80  Me.  544, 
15  Atl.  785,  1  L.  R.  A.  388. 

Minnesota:  State  v.  St.  Paul, 
Minneapolis  &  Manitoba  Ry.  Co.,  98 
Minn.  380. 

Nebraska:  Lincoln  St.  Ry.  Co.  v. 
City  of  Lincoln,  61  Neb.  109,  110,  84 
N.  W.  802. 

New  Jersey:  Millville  Gaslight  Co. 
v.  Vineland  Light  &  Power  Co.  (N. 
J.,  1906),  65  Atl.  504;  Jersey  City  v. 
North  Jersey  St.  Ry.  Co.,  72  N.  J.  L. 
383,  61  Atl.  95. 

Texas:  East  Line  &  R.  R.  Co.  v. 
Rushing,  69  Tex.  306,  6  S.  W.  834. 

Grants  of  franchises  should  be  in 
plain  language,  and  certain  and  defi- 
nite in  their  nature,  and  should  be 
free  from  ambiguity  in  their  terms. 
The  legislative  mind  should  be  dis- 
tinctly impressed  with  the  unequivo- 
cal form  of  expression  contained  in 
the  grant.  They  will  also  be  strictly 
construed  against  the  grantee.  Cleve- 
land Electric  Ry.  Co.  v.  Cleveland, 
204  U.  S.  116,  130,  51  L.  ed.  — ,  27 
Sup.  Ct.  — . 

One  asserting  private  rights  in 
public  property  under  grants  of  fran- 
chises must  show  that  they  have 
been  conferred  in  plain  terms,  for 
nothing  passes  by  the  grant  except 
it  be  clearly  stated  or  necessarily  im- 
plied. Legislative  grants  of  fran- 
chises which  an;  in  any  way  am- 
biguous :is  to  whether  granted  for  a 
longer  or  a  shorter  period  arc  to  be 

construed  si  rid  ly  against  t  he  grantee. 
Blair  v.  Chicago,  201  l\  S.  100,  50 
L.  ed.  SOI,  26  Sup.  Ct.  427  (street 
railroads). 

Only  thai  which  is  granted  in  clear 
and  explicit  terms  passes  by  a  grant 
of  property,  franchises  or  privileges 
in  which  the  government  or  the  pub- 


lic has  an  interest.  Statutory  grants 
of  that  character  are  to  be  construed 
strictly  in  favor  of  the  public;. what- 
ever is  not  unequivocally  granted  is 
withheld;  and  nothing  passes  by  im- 
plication. Knoxville  Water  Co.  v. 
Knoxville,  200  U.  S.  22,  50  L.  ed. 
353,  26  Sup.  Ct.  224  (contract  to  sup- 
ply water;  corporations;  due  process 
and  obligation  of  contracts). 

Statutes  granting  privileges  or  re- 
linquishing rights  of  the  public  are 
to  be  strictly  construed  against  the 
grantee.  Wisconsin  Cent.  R.  Co.  v. 
United  States,  164  U.  S.  190,  41  L. 
ed.  399,  17  Sup.  Ct  45  (public  lands; 
subsidized  railroad). 

Legislative  grants  must  be  inter- 
preted so  as  to  effect  the  intention 
of  the  grantor;  but  if  the  words  are 
ambiguous,  the  true  rule  is  to  con- 
strue them  most  strongly  against  the 
grantee.  Wherever  privileges  are 
granted  to  a  corporation  and  the 
grant  comes  under  revision  in  the 
courts,  it  is  to  be  construed  strictly 
against  the  corporation  and  in  favor 
of  the  public,  and  nothing  passes  ex- 
cept what  is  given  in  clear  and  ex- 
plicit terms.  Rice  v.  Railroad  Co., 
1  Black  (66  U.  S.),  358,  17  L.  ed.  147 
(railroad  aid;  land  grants;  vested 
rights;  conditions  as  to  construction 
of  railroad). 

When  there  is  any  doubt  as  to  the 
proper  construction  of  a  statute 
granting  a  privilege,  that  construc- 
tion should  be  adopted  which  is 
most  advantageous  to  the  interests  of 
the  government,  the  grantor.  Hanni- 
bal &  St.  Joseph  R.  Co.  v.  Missouri 
River  Packet  Co.,  125  U.  S.  260,  31 
L.  ed.  731.  8  Sup.  Ct.  874  (interstate 
bridge;  unlawful  structure;  act  of 
Congress). 

393 


§   254  CONSTITUTIONAL    LAW — INTERPRETATION 

body.74    Such  rule  also  differs  from  that  as  to  ordinary  grants,75 
and  one  of  the  reasons  for  strict  construction  against  the 

When  a  statute  makes  a  grant  of  122,  127,  56  N.  E.  538,  per  Vann,  J., 
property,  powers  or  franchises  to  a  case  reverses  10  App.  Div.  456. 
private  corporation  or  to  a  private  Grants  of  franchises  by  the  same 
individual,  the  construction  of  the  State  are  to  be  so  strictly  construed 
grant  in  doubtful  points  should  al-  as  to  operate  as  a  surrender  of  the 
ways  be  against  the  grantee,  and  in  sovereignty  no  further  than  is  ex- 
favor  of  the  government.  Oregon  pressly  declared  by  the  terms  of  the 
Railway  &  Navigation  Co.  v.  Orego-  grant.  The  grantee  takes  nothing 
nian  Ry.  Co.,  130  U.  S.  1,  32  L.  ed.  in  that  respect  by  inference.  Syra- 
837,  9  Sup.  Ct.  409,  5  R.  R.  &  Corp.  cuse  Water  Co.  v.  City  of  Syracuse, 
L.  J.  364  (railroads;  grants  to;  cor-  116  N.  Y.  167,  26  N.  Y.  St.  R.  364, 
porate  charters  and  powers).  22  N.  E.  381. 

Every  statute  which  takes  away  The  rule  that  public  grants  are  to 
from  a  legislature  its  power  will  al-  be  construed  strictly  against  the 
ways  be  construed  most  strongly  in  grantee  means  that  nothing  shall 
favor  of  the  State.  This  is  an  ele-  pass  by  implication  except  it  be 
mentary  principle.  Wright  v.  Nagle,  necessary  to  carry  into  effect  the 
101  U.  S.  791,  796,  25  L.  ed.  921,  per  obvious  intent  of  the  grant.  People 
Waite,  C.  J.  (toll-bridge  franchise;  ex  rel.  Woodhaven  Gas  Co.  v.  Dee- 
obligation  of  contract;  legislative  han,  153  N.  Y.  528,  47  N.  E.  787, 
power).  rev'g  11  App.  Div.  175. 

In  construing  a  franchise  the  "  If  there  be  anything  well  settled 
principle  should  be  applied  that  a  in  the  law  relating  to  corporations, 
grant  from  the  public,  so  far  as  it  is  it  is,  that  their  charters,  being  grants 
ambiguous,  is  to  be  construed  in  the  of  power  or  authority,  in  derogation 
interest  of  the  public,  that  is,  in  favor  of  the  natural  rights  and  equality  of 
of  the  grantor,  and  not,  as  in  the  or-  men,  must  be  construed  favorable 
dinary  sense,  in  favor  of  the  grantee,  to  the  public,  and  strictly  as  against 
This  principle,  however,  is  to  be  ap-  the  corporation,  in  whose  favor 
plied  only  when  doubt  arises,  since  nothing  can  be  claimed  by  implica- 
if  the  meaning  is  clear  there  is  no  tion."  Bank  of  Toledo  v.  City  of 
room  for  construction.  Trustees  of  Toledo  (Toledo  Bank  v.  Bond),  1 
Southampton  v.  Jessup,   162  N.  Y.    Ohio  St.  622,  636,  per  Bartley,  C.  J. 

74  Oregon  Railway  &  Navigation  words  be  doubtful,  is,  that  they 
Co.  v.  Oregonian  Ry.  Co.,  130  U.  S.  shall  be  taken  most  strongly  against 
1,  32  L.  ed.  837,  9  Sup.  Ct.  409,  5  Rd.  the  grantor.  An  opposite  rule  pre- 
&  Corp.  L.  J.  364.  See  also  Central  vails  in  cases  of  grants  made  by  a 
Transp.  Co.  v.  Pullman's  Palace  Car  sovereign  power.  Mills  v.  County  of 
Co.,  139  U.  S.  24,  35  L.  ed.  55,  11  St.  Clair,  7  111.  197. 
Sup.  Ct.  478,  9  Rd.  &  Corp.  L.  J.  342,  Generally,  dubious  words  ought  to 
43  Alb.  L.  J.  328,  45  Am.  &  Eng.  R.  be  taken  most  strongly  against  the 
Cas.  607.  lawmaker.     United  States  v.  Heth, 

76  The  rule  of  construction  of  pri-   3  Cranch  (7  U.  S.),  399,  413,  2  L.  ed. 
vate  grants,  if  the  meaning  of  the   479. 
394 


OR    CONSTRUCTION    OF   STATUTES  §   255 

grantee  is  that  such  grants  are  usually  prepared  by  those 
interested  in  them  and  submitted  to  the  legislatures  with  a 
view  to  obtain  from  such  bodies  the  most  liberal  grant  of  privi- 
leges which  they  are  willing  to  give.76  The  rule  or  principle 
must,  however,  be  applied  with  reference  to  the  subject-matter 
as  a  whole,  and  not  in  such  a  manner  as  to  defeat  the  general 
intent  of  the  legislature,77  as  the  obvious  intention  of  the  par- 
ties, when  expressed  in  plain  and  unequivocal  language,  can- 
not be  ignored  in  a  public  any  more  than  in  a  private  grant.78 

§255.  Same  Subject  Continued — Instances — Railroads — 
Street    Railroads — Submarine    Railway — Gas,    Telephone, 

Where  there  is  a  doubt  as  to  the  said;  and  words  of  equivocal  import 
meaning  of  the  terms  of  a  grant  of  are  so  easily  inserted  by  mistake  or 
public  interests  or  uncertainty  as  to  fraud,  that  every  consideration  of 
its  general  purpose,  that  construction  justice  and  policy  requires  that  they 
must  be  adopted  which  will  support  should  be  treated  as  nugatory,  when 
the  claim  of  the  State  rather  than  they  do  find  their  way  into  the  enact- 
that  of  the  individual  or  corporation,  ments  of  the  legislature.  In  the  con- 
Slidell  v.  Grandjean,  111  U.  S.  412.  struction  of  a  charter,  to  be  in  doubt 
Grants  which  confer  exclusive  privi-  is  to  be  resolved;  and  every  resolu- 
leges  affecting  great  public  interests  tion  which  springs  from  doubt  is 
must  be  construed  strictly  against  against  the  corporation.  This  is  the 
the  grantee.  Emerson  v.  Common-  rule  sustained  by  all  the  courts  in 
wealth,  108  Pa.  111.  this   country  and   in   England.      No 

"Corporate  powers  can  never  be  other  has  ever  received  the  sanction 
created  by  implication  nor  extended  of  any  authority  to  which  we  owe 
by  construction.  No  privilege  is  much  deference.  This  court  has  as- 
granted  unless  it  be  expressed  in  serted  it  times  without  number." 
plain  and  unequivocal  words,  testi-  Pennsylvania  Ry.  Co.  v.  Canal  Com- 
fying  the  intention  of  the  legislature  missioners,  21  Pa.  9,  22,  per  Black, 
in  a  manner  too  plain  to  be  misun-  C.  J. 

derstood.      When    the    State    means  Acts   of   incorporation   and   other 

to  clothe  a  corporate  body  with  a  statutes   granting   special    privileges 

portion  of  her  own  sovereignty,  and  are    to    be    construed    strictly,    and 

to  disarm   herself  to  that    extent   of  whatever  is  not  given  in  unequivocal 

the  powers  which  belong  to  her,  it  is  terms  is  withheld.     Moran  v.  Miami 

SO  easy  to  say  so  that  we  will  never  County,  2  Black  (67  U.  S.),  722,  17 

believe  it  to  be  meant  when  it  is  not  L.  ed.  342. 

"Cleveland    Electric    Ry.    Co.    v.  "People,  Woodhaven  Gas  Co.,  v. 

Cleveland,  204  U.  S.  116,  130,  51  L.  Deehan,  153  N.  Y.  528,  47  N.  E.  187, 

ed.  — ,  27  Sup.  Ct.  — .  rev'g  42  N.  Y.  Supp.  1071,  17  App. 

"  Moran  v.  Miami  County.  2  Black  DiV.  175,  76  N.  Y.  St.  R.  1071. 
(67  U.  S.),  722,  17  L.  ed.  342. 

305 


§   255  CONSTITUTIONAL    LAW — INTERPRETATION 

Canal,  Water  and  Turnpike  Companies — Ferry — Eminent 
Domain. — The  rule  of  liberal  construction  in  favor  of  the 
public  and  strict  construction  against  the  grantee  has 
been  applied  to  legislative  grants  of  franchises  to  railroads,79 
including  the  right  of  such  companies  to  exercise  the  power 
of  eminent  domain,80  and  the  privilege  of  occupying  the  public 
streets  with  its  tracks; 81  to  the  charter  and  the  right  or  privilege 
of  a  street  railway  to  construct,  maintain  and  operate  its  road 
in  the  public  streets  of  a  city;82  to  the  grantee  of  land  under 
water  for  a  submarine  railway;83  and  to  the  right  to  use  the 
streets  of  a  city  for  pipes  to  supply  it  and  the  inhabitants 
with  gas.84  So  in  case  exceptional  privileges  and  powers, 
which  interfere. to  an  important  extent  with  a  municipality's 
control  over  its  streets,  are  conferred  by  ordinance  upon  a 
telephone  company  to  its  benefit  and  advantage,  such  contract 
should  be  strictly  construed,  and  if  it  contains  words  suscep- 
tible of  various  meanings  that  interpretation  should  be  given 
by  which  the  public  interests  will  be  conserved.85  But  a  char- 
ter of  a  corporation  should  be  so  construed  as  to  carry  into 
effect  the  will  of  the  legislature,  and  a  power  given  to  a  canal 
company  to  take  private  property  for  public  use  upon  just 
compensation  is  not  a  power  in  derogation  of  common  right, 
necessitating,  as  against  the  company,  the  strictest  construc- 
tion of  particular  words  at  variance  with  a  reasonable  construc- 
tion drawn  from  the  whole  context  of  the  instrument  which  will 


79  State  v.  St.  Paul,  M.  &  M.  Ry.  v.  Africa,  100  Tenn.  26,  53,  42  S.  W. 
Co.  (Minn.,  1906),  108  N.  W.  261;  485,  878;  Hamilton  &  L.  E.  T.  Co.  v. 
Norfolk  &  W.  Ry.  Co.  v.  Lynchburg  Hamilton,  1  Ohio  N.  P.  366. 
Cotton  Mill  Co.,  106  Va.  376,  56  M  De  Lancey  v.  Hawkins,  49  N.  Y. 
S.  E.  146;  Norfolk  &  W.  Ry.  Co.  v.  Supp.  469,  23  App.  Div.  8,  aff'd  163 
Schein,  106  Va.  382,  56  S.  E.  148.  N.  Y.  587,  53  N.  E.  1108. 

80  Norfolk  &  W.  Ry.  Co.  v.  Lynch-  84  Pensacola  Gas  Co.  v.  Pensacola, 
burg  Cotton  Mill  Co.,  106  Va.  376,  33  Fla.  322,  14  So.  826.  See  also 
56  S.  E.  146;  Norfolk  &  W.  Ry.  Co.  v.  Hamilton  Gas  Light  Co.  v.  Hamilton 
Schein,  106  Va.  382,  56  S.  E.  148.  City,  146  U.  S.  258,  36  L.  ed.  963,  13 

81  Chicago,   D.   &  V.    Ry.    Co.    v.  Sup.  Ct.  90. 

Chicago,  121  111.  176,  11  N.  E.  907.  85  Baltimore  City  v.  Chesapeake  & 

82  Blocki  v.  People,  220  111.  444,  Potomac  Teleph.  Co.,  92  Md.  692,  48 
77  N.  E.  172:  Citizens'  Street  R.  Co.  Atl.  465. 

396 


OR    CONSTRUCTION    OF   STATUTES  §   255 

best  carry  out  the  legislative  intent.86  In  a  case  where  a  con- 
tract was  made  with  a  municipality  granting  the  right  to 
supply  a  city  with  water  for  a  certain  number  of  years  it  was 
held  that  such  contract  being  susceptible  of  two  meanings, 
the  one  restricting  and  the  other  extending  the  powers  of  the 
municipal  corporation,  that  construction  was  to  be  adopted 
which  worked  the  least  harm  to  the  State.87  This  last  rule  has 
also  been  applied  in  the  case  of  a  contract  by  a  turnpike  com- 
pany with  a  State  concerning  the  exercise  of  franchises.88  But 
in  another  case  it  appeared  that  in  1819,  the  legislature 
of  Illinois  authorized  an  individual,  his  heirs  and  assigns,  to 
establish  a  ferry  on  the  east  bank  of  the  River  Mississippi, 
near  the  town  of  Illinois,  and  to  run  the  same  from  lands 
"that  they  may  belong  to  him,"  provided  that  the  ferry  should 
be  put  into  actual  operation  within  eighteen  months.  At  this 
time  he  had  no  land,  but  within  the  eighteen  months  acquired 
an  interest  in  a  tract  of  one  hundred  acres.  In  1821,  another 
act  was  passed,  authorizing  him  to  remove  the  ferry  "on  any 
land  may  belong  to  him"  on  the  said  Mississippi  River,  under 
the  same  privileges  as  were  prescribed  by  the  former  act.  It 
was  held  that  the  words  of  this  act,  "on  any  land  that  may 
belong  to  him,"  must  be  construed  to  apply  to  the  lands  which 
then  belonged  to  him,  and  not  to  such  as  he  obtained  after  the 
passage  of  the  act,  viz.,  in  1822.  The  following  rules  for  con- 
struing statutes  were  applied  to  the  case,  viz.,  First.  That  in 
a  grant,  designed  by  the  sovereign  power  making  it  to  be  a 
general  benefit  and  accommodation  to  the  public,  if  the  mean- 
ing of  the  words  be  doubtful,  they  shall  be  taken  most  strongly 
against  the  grantee  and  for  the  government;  and,  therefore, 
should  not  be  extended  by  implication  in  favor  of  the  grantee 
beyond  the  natural  and  obvious  meaning  of  the  words  em- 
ployed; and  Jf  these  do  not  support  the  right  claimed,  it  must 

"Chesapeake  &  Ohio  Canal  Co.  v.    Co.,  141  U.  S.  67,  35  L.  ed.  G22,  11 
Key,  3  Cranch   (U.  S.  C.  C),  599,    Sup.  Ct.  892. 
603  609,  Fed.  Cas.  No.  2,649.  ""Covington  &  Lex.  Tump.  Co.  v. 

"Stein  v.  Bienville  Water  Supply    Sandford,  L64  U.  S.  578,  17  Sup.  Ct. 

198,41  L.  ed.  560. 

307 


§   255  CONSTITUTIONAL    LAW — INTERPRETATION 

fall.  Secondly.  If  the  grant  admits  of  two  interpretations, 
one  of  which  is  more  extended,  and  the  other  more  restricted, 
so  that  a  choice  is  fairly  open,  and  either  may  be  adopted 
without  any  apparent  violation  of  the  apparent  objects  of  the 
grant,  if  in  such  case  one  interpretation  could  render  the  grant 
inoperative  and  the  other  would  give  it  force  and  effect,  the 
latter,  if  within  a  reasonable  construction  of  the  terms  em- 
ployed, should  be  adopted.89  Under  still  another  decision  it 
appeared  that  a  water  company  was  a  corporation  organized 
under  the  general  statute  of  Illinois,  as  was  also  a  municipality. 
In  June  1882,  the  government  of  the  city  gave  the  water  com- 
pany an  exclusive  right  to  supply  the  city  with  water  for  thirty 
years,  reserving  the  right  of  purchasing  the  works  erected  for 
that  purpose,  and  if  this  right  were  not  exercised,  the  rights 
of  the  company  were  to  be  extended  for  a  further  term.  Pro- 
vision was  made  for  the  erection  of  hydrants  by  the  company 
for  which  fixed  rentals  were  to  be  charged,  and  the  city  was 
given  rights  in  a  part  of  them.  Further  provisions  were  made 
for  the  payment  of  water  rates  by  consumers.  In  1896  an 
ordinance  was  passed  by  the  city  reducing  the  rentals  of  the 
hydrants  and  rates  to  consumers,  to  take  effect  from  the  date 
of  its  passage.  At  the  time  when  the  grant  of  1882  was  made, 
a  statute  passed  in  1872  was  in  force  in  Illinois,  authorizing 
cities  and  villages  to  contract  with  incorporated  companies 
for  a  supply  of  water  for  a  public  use,  for  a  period  not  exceed- 
ing thirty  years.  It  was  held  that  the  power  so  conferred  by 
the  statute  of  1872  in  force  in  1882  could,  without  straining, 
be  construed  as  distributive ;  that  the  city  council  was  author- 
ized to  contract  with  any  person  or  corporation  to  construct 
and  maintain  waterworks  at  such  rates  as  might  be  fixed  by 
ordinance  and  for  a  period  not  exceeding  thirty  years;  that  the 
words  "fixed  by  ordinance"  might  be  construed  to  mean  by 
ordinance  once  for  all  to  endure  during  the  whole  period  of 
thirty  years,  or  by  ordinance  from  time  to  time  as  might  be 

86  Mills  v.   St.   Clair  Co.,   8  How.    (49  U.  S.)  569,  12  L.  ed.  1201,  7  111. 

197. 

398 


OR    CONSTRUCTION   OF   STATUTES  §   256 

deemed  necessary;  and  that  of  the  two  constructions,  that  must 
be  adopted  which  was  most  favorable  to  the  public,  not  that 
one  which  would  so  tie  the  hands  of  the  council  that  the  rates 
could  not  be  adjusted  as  justice  to  both  parties  might  require 
at  a  particular  time.90 

§  256.  Same  Subject — Instances  Continued — Public  Land 
Grants — Railroad  Aid. — Land  grant  statutes  should  receive 
a  strict  construction,  and  one  which  supports  the  construction 
of  the  government  rather  than  that  of  the  individual,  the 
sovereign  rather  than  the  grantee;  nothing  passes  by  impli- 
cation.91 But  while  it  is  well  settled  that  public  grants  are  to  be 
construed  strictly  against  the  grantees,  they  are  not  to  be  so 
construed  as  to  defeat  the  intent  of  the  legislature,  or  to 
withhold  what  is  given.  General  legislation,  offering  advan- 
tages in  the  public  lands  to  individuals  or  corporations  as  the 
inducement  to  the  accomplishment  of  enterprises  of  a  quasi- 
public  character  through  undeveloped  public  domain  should 
receive  a  more  liberal  construction  than  is  given  to  an  ordi- 
nary private  grant.92  Every  act  of  Congress  making  a  grant 
of  public  land  is  to  be  treated  both  as  a  law  and  a  grant,  and 
the  intent  of  Congress  when  ascertained  is  to  control  in  the 
interpretation  of  the  law;  and  when  Congress  makes  a  grant 
of  a  specific  quantity  of  public  land  in  aid  of  any  internal 
improvement,  it  must  be  assumed  that  it  intends  the  benefi- 
ciary to  receive  such  amount  of  land,  and  when  it  designates 
what  land  shall  be  received  it  is  equally  clear  that  the  intent 
is,  if  possible,  that  the  exact  land  thus  particularly  designated 
shall  be  received.93  Property  rights  of  owners  will,  however, 
be  favored  by  a  construction  of  railroad  aid  laws.94    Where  the 

80  Frecport  Water  Co.  v.  Frceport  62  United  States  v.  Denver  &  Rio 

City,  180  U.  S.  587,  45  L.  ed.  679,  21  Grande  Ry.  Co.,  150  U.  S.  1,  14  Sup. 

Sup.  Ct.  493.  Ct.  11,  37  L.  ed.  975. 

91  Northern     Pacific     Ry.     Co.     v.  "Wisconsin      Cent.      R.     Co.     V. 

Soderberg,    L88   U.   8.  520,   23  Sup.  Forsytlie,  159  !'.  S.  40,  15  Sup.  Ct. 

Ct.  365,  47  L.  ed.  575  (public  lands;  1020,  40  L.  ed.  71. 

grants  in  aid  of  railroads;  reservations  B4  Demaree  v.   Johnson,   150  Ind. 

and  exceptions;  mineral  lands).  419,  49  N.  E.  1062,  50  N.  E.  376. 

300 


§   256  CONSTITUTIONAL    LAW — INTERPRETATION 

charter  of  a  railroad  company  authorizes  the  counties  "  through 
which  it  may  pass"  to  subscribe  to  its  stock,  a  county  lying 
between  the  two  termini  of  the  road  may  subscribe  without 
waiting  until  the  route  is  actually  located.  "It  is  true,  when 
a  charter  is  given  for  franchises  or  property  to  a  corporation, 
which  is  to  be  brought  into  existence  by  some  future  acts  of 
the  corporators,  that  such  franchises  or  property  are  in  abey- 
ance until  such  acts  shall  have  been  done,  and  then  they  in- 
stantly attach.  But  not  to  distinguish  the  acts  enjoined  or 
permitted,  to  give  to  the  corporation  its  intended  purpose 
and  object,  is  to  confound  the  franchises  with  such  acts,  and 
would  nullify  the  means  by  which  the  franchises  are  to  be 
produced;"  and  if  the  evident  intent,  to  be  ascertained  from 
the  charter  conditions,  there  being  no  express  limitation  as  to 
the  time  of  making  such  subscription,  is  that  it  is  optional 
with  those  who  could  do  so  to  make  it  when  most  convenient  or 
advantageous  to  themselves,  it  may  be  made  before  actual 
location  of  the  road.95 

05  Woods  v.   Lawrence  County,    1    Black  (66  U.  S.)  386,  409,  17  L.  ed. 

122. 


400 


OR   CONSTRUCTION    OF    STATUTES    CONTINUED 


CHAPTER  XVII. 

CONSTITUTIONAL  LAW — INTERPRETATION   OR  CONSTRUCTION   OF 
STATUTES    CONTINUED. 


257.  Grant  of  Exclusive  Fran- 
chises, Rights  or  Privileges 
— Strict   Construction. 

Separate  Grants  of  Fran- 
chises— Rule  of  Construc- 
tion. 

Settled  Judicial  Construction. 

Practical  Construction  by- 
Parties. 

Effect  of  Interpretation — 
Beneficial  Reasons — Natu- 
ral Justice  and  Equity — 
Inconvenience — Injury  or 
Hardship. 

Contemporaneous  Construc- 
tion— Extraneous  Matters 
— History — Debates,  etc. 

Policy  of  Government,  of 
Legislative  Body  or  of  haw 
— Public  Policy — General 
Principles  of  Law. 

Remedial  Statutes. 

Statutes  in  Pari  Materia. 

266.  Statutes     in     Pari     Materia 

Continued. 

267.  Statutes  in  Pari  Materia  Con- 

tinued Exception  to  or 
Qualification  of  Rule. 

Words  or  Provisions  of  Prior 
Statutes  Adopted  in  Later 
Act. 

Derivative  Statutes  —  Con- 
struction of  Statutes 
Adopted  from  Foreign 
State  or  Country. 

He-enactment— Consul idat  ion 

26 


§  271. 


258. 


259. 
260. 

261. 


262. 


263. 


264. 
265. 


268. 


269. 


270. 


273. 
274. 


275. 


276. 


277. 


278. 


279. 


280. 


— Revised        Statutes    — 
Codes. 

Construction  by  State  of  Its 
Statutes — How  Far  Re- 
spected in  Courts  of  Other 
States. 

Construction  of  State  Con- 
stitutions and  Statutes  by 
State  Courts — How  Far 
Respected  by  Federal 
Courts. 

Same  Subject  Continued. 

Same  Subject  Continued  — 
Exceptions  to  or  Qualifica- 
tions of  Rule. 

Same  Subject  Continued — 
Instances  —  Incorporation 
Acts — Eminent  Domain — 
Corporate  Powers. 

Same  Subject  —  Instances 
Continued — Common  Car- 
riers— Railroads. 

Same  Subject  —  Instances 
Continued  —  Revenue  — 
Taxation. 

Same  Subject  —  Instances 
Continued  —  Exemptions 
from  Taxation  —  Impair- 
ment of  Obligation  of  Con- 
tract as  to  Taxation. 

Same    Subject    —    Instances 
Continued      -   Impairment 
of  Obligation  of  <  lontracl 
Fourteenth  Amendment. 

Same   Subjecl  Instances 

Continued     Statutes  Penal 

101 


§   257  CONSTITUTIONAL    LAW — INTERPRETATION 

in    Nature  —  Trustees    of    §   285.  Same    Subject    —    Instances 

Corporations  —  Anti-Trust  Continued — Taxation     and 

Laws.  Assessment. 

§  281.  Same    Subject    —    Instances  286.  Construction      of      Statutes, 

Continued — Foreign  Corpo-  Charters  and  Ordinances — 

rations.  Miscellaneous  Cases. 

282.  Repeal    or    Amendment     of  287.  Prospective    and    Retrospec- 

Statutes.  tive  Operation. 

283.  Same  Subject  Continued.  288.  Validating   Statutes — Waiver 

284.  Same     Subject     Continued —  or  Correction  of  Defect  or 

Instances.  Irregularity. 

§  257.  Grant  of  Exclusive  Franchises,  Rights  or  Privi- 
leges— Street  Construction. — Grants  of  exclusive  franchises, 
rights  or  privileges  to  corporations  or  individuals  do  not  pass 
except  by  plain  and  express  words  or  necessary  implication, 
and  are  to  be  strictly  construed.  If  the  terms  of  such  contract 
between  the  corporation  or  individual  and  the  State  are  am- 
biguous such  ambiguity  must  operate  in  favor  of  the  public  or 
State ;  exclusive  rights  or  privileges  under  public  franchises  are 
not  favored.1    A  special  franchise  to  be  exclusive  ought  to  be 

1  United  States:  Long  Island  Ct.  427,  rev'g  132  Fed.  848;  Vincennes 
Water  Supply  Co.  v.  Brooklyn,  166  v.  Citizens'  Gaslight  Co.,  132  Ind. 
U.  S.  685,  696,  17  Sup.  Ct.  718,  41  114,  16  L.  R.  A.  485,  31  N.  E.  573; 
L.  ed.  1165;  Wright  v.  Nagle,  101  Hamilton  &  L.  E.  T.  Co.  v.  Hamilton, 
U.  S.  791,  796,  25  L.  ed.  921,  per  1  Ohio  N.  P.  366.  See  §§  22-24, 
Waite,  C.  J.;  Citizens'  Street  R.  Co.  v.  herein,  also  chapter  herein  as  to  ex- 
Jones  (C.  O),  34  Fed.  579.  elusive   franchises. 

District     of     Columbia:    United  Charles  River   bridge;   powers   ex- 
States  Elec.  L.  Co.  v.  Ross,  9  App.  pressly   granted ;    exclusive   privileges 
D.  C.   558,  24  Wash.   L.   Rep.   775,  not  regarded ;  implications  as  to.    The 
appeal  denied,  24  Wash.  L.  Rep.  838.  act    of    incorporation    of    the    pro- 
Georgia:  McLeod  v.  Burroughs,  9  prietors  of  the  Charles  River  bridge, 
Ga.  213.  is  in  the  usual  form,  and  the  privi- 
Maryland:  North  Baltimore  Pass,  leges  such  as  are  commonly  given  to 
Ry.  Co.  v.  North  Ave.  Ry.  Co.,  75  corporations  of  that  kind;  it  confers 
Md.  233,  4  Am.  Elec.  Cas.   1,  9,  29  on  them  the  ordinary  faculties  of  a 
Atl.  466,  per  Alvey,  C.  J.  corporation,  for  the  purpose  of  build- 
Pennsylvania:     West    Manayunk  ing  the  bridge,  and  establishes  cer- 
Gas  Light  Co.  v.  New  Gas  Light  Co.,  tain  rates  of  toll  which  the  company 
21  Pa.  Co.  Ct.  Rep.  379.  are  authorized  to  take.     This  is  the 
Texas:  Victoria  County  v.  Victoria  whole   grant;   there   is  no   exclusive 
Bridge,  68  Tex.  62,  4  S.  W.  140.  privilege    given    to    them    over    the 
Examine  Blair  v.  City  of  Chicago,  waters   of   Charles   River,    above   or 
201  U.  S.  400,  50  L.  ed.  801,  26  Sup.  below  their  bridge;  no  right  to  erect 

402 


OR    CONSTRUCTION    OF    STATUTES    CONTINUED  §   258 

free  from  ambiguity,  and  the  precise  territorial  limitations  of 
a  charter  should  not  be  uncertain  and  incapable  of  accurate 
determination  so  that  the  grantee  may  elect  to  exercise  its 
rights  in  one  district  one  year  and  abandon  that  locality  the 
next.2  So  where  an  exclusive  right  is  granted  to  a  corporation 
for  a  period  of  years  that  interpretation  will  govern  which  is 
most  favorable  to  the  State,  and  the  right  will  be  held  to  ex- 
pire at  the  termination  of  the  period  specified,  even  though 
under  another  statute  such  grant  might  be  construed  as  for 
an  unlimited  period.3  But  it  is  held  that  the  rule  requiring 
all  gratuitous  grants  by  the  sovereign  of  exclusive  privileges 
and  franchises  to  be  construed  strictly,  and  that  any  ambiguity 
therein  must  operate  against  the  grantee,  is  not  in  its  strict- 
ness fully  applicable  to  the  grant  of  a  ferry  franchise.  Such 
a  grant  being  never  without  a  consideration,  as  it  imposes  upon 
the  grantee  the  obligation  of  maintaining  a  ferry  with  suitable 
accommodations  for  the  convenience  of  the  public.4 

§258.  Separate  Grants  of  Franchises— Rule  of  Construc- 
tion.— If  the  franchise  of  a  ferry  and  that  of  a  bridge  are 
different  in  their  nature  and  are  each  established  by  separate 
grants  which  have  no  words  to  connect  the  privileges  of  the 
one  with  the  privileges  of  the  other,  there  is  no  rule  of  legal 
interpretation,  which  will  authorize  a  court  to  associate  such 

another  bridge  themselves,  nor  to  must  be  implied  simply  from  the 
prevent  other  persons  from  erecting  nature  of  the  grant,  and  cannot  be  in- 
one;  no  engagement  from  the  State,  ferred  from  the  words  by  which  the 
that  another  shall  not  be  erected;  grant  is  made.  Charles  River  Bridge 
and  no  undertaking  not  to  sanction  v.  Warren  Bridge,  11  Pet.  (36  U.  S.) 
competition,  nor  to  make  improve-  420,  9  L.  ed.  773. 
ments  that  may  diminish  the  amount  2  West  Manayunk  Gas  Light  Co.  v. 
of  its  income.  Upon  all  these  sub-  New  Gas  Light  Co.,  21  Pa.  Co.  Ct. 
jects,  the  charter  is  silent,  and  uoth-  Rep.  379. 

ing  is  said  in  it  about  a  line  of  travel,  3  Coosaw    Mining    Co.    v.    South 

BO  much  insisted  on  in  the  argument,  Carolina,  144  U.  S.  550,  36  L.  ed.  537, 

in  which  they  are  to  have  exclusive  12  Sup.  Ct.  089. 

privileges;  no  words  are   used,   from  '  Mayor,    etc.,    of    New    York    v. 

which   an    intention    to  granl    any  of  Starin,   106  N.  Y.   1,  8  N.  Y.  St.  R. 

these  rights  can  be  inferred;  if  the  655,  27  Wkly.  Dig.  124,  12  N.  B. 
plaintiffs    are    entitled    to    them,    it    631. 

403 


§§    259,    260      CONSTITUTIONAL    LAW — INTERPRETATION 

grants  together,  and  to  infer  that  any  privilege  was  intended 
to  be  given  to  the  bridge  company  merely  because  it  had  been 
conferred  upon  the  other;  the  charter  being  a  written  instru- 
ment it  must  speak  for  itself  and  be  interpreted  by  its  own 
terms.5 

§  259.  Settled  Judicial  Construction.  — It  is  a  well-settled 
principle  of  construction  that  language  used  in  a  statute  which 
has  a  settled  and  well-known  meaning,  sanctioned  by  judicial 
decision,  is  presumed  to  be  used  in  that  sense  by  the  legisla- 
tive body.6  And  if  the  courts  of  a  State  have,  when  an  agree- 
ment is  made,  construed  their  constitution  and  laws  so  as  to 
give  the  agreement  force  and  vitality,  the  same  courts  cannot, 
by  a  subsequent  and  contrary  construction,  render  it  invalid,7 
for  the  settled  judicial  construction  of  a  statute,  so  far  as  con- 
tract rights  are  acquired  thereunder,  is  as  much  a  part  of  the 
statute  as  the  text  itself,  and  a  change  of  decision  is  the  same 
in  effect  on  pre-existing  contracts  as  a  repeal  or  amendment 
by  legislative  enactment.8  But  the  construction  placed  by  a 
state  court  upon  one  statute  implies  no  obligation  on  its  part 
to  put  the  same  construction  upon  a  different  statute  though 
the  language  of  the  two  may  be  similar.9 

§  260.  Practical  Construction  by  Parties.  — The  practical 
interpretation  or  construction  of  ambiguous  language  of  a 
charter  of  a  corporation  or  of  a  grant  of  a  franchise  or  privi- 
lege, by  the  subsequent  acts  of  the  parties,  and  continued 
uniformly  for  a  number  of  years  and  acquiesced  in  by  the  pub- 
lic or  officials  charged  with  the  duty  to  object  in  the  premises, 
is,  in  case  where  such  construction  is  permissible,  entitled  to 

5  Charles  River  Bridge  v.  Warren  County,  128  U.  S.  526,  9  Sup.  Ct.  159, 
Bridge,  11  Pet.  (36  U.  S.)  420,  9  32  L.  ed.  519  (a  case  of  county  bonds; 
L.  ed.  773.  railroad    aid;    conditions    precedent; 

6  Kepner  v.  United  States,  195  U.  S.  invalidity;  innocent  holders);  Doug- 
100,  49  L.  ed.  114,  24  Sup.  Ct.  797.  lass  v.  County  of  Pike,  101  U.  S.  677, 

7  Thomson  v.  Lee  County,  3  Wall.  25  L.  ed.  968. 

(70  U.  S.)  327,  18  L.  ed.  177.  9  Wood  v.  Brady,  150  U.  S.  18,  37 

8  German   Sav.   Bank  v.  Franklin    L.  ed.  981,  14  Sup.  Ct.  — . 

404 


OR   CONSTRUCTION   OF   STATUTES   CONTINUED         §   261 

great  weight  as  evidencing  the  right  interpretation,  but  if 
such  acts,  conduct  or  acquiescence  have  not  been  uniform,  and 
indicate  conflicting  views,  they  furnish  no  aid  in  arriving  at 
the  meaning.10  The  omission,  however,  of  a  city  to  assert  its 
rights,  or  its  passive  submission  to  the  invasion  thereof  is  held 
to  have  but  little  bearing  in  the  construction  of  a  grant,  al- 
though the  acts  of  a  city  in  asserting  and  exercising  its  rights 
from  time  to  time,  claiming  an  exclusive  franchise,  conclu- 
sively shows  its  understanding  under  the  charter.11  Practical 
construction  by  a  common  carrier  and  officials  to  whom  passes 
have  been  given  cannot  operate  to  modify  a  law  clearly  pro- 
hibiting transportation  of  favored  passengers.12 

§261.  Effect  of  Interpretation— Beneficial  Reasons  — 
Natural  Justice  and  Equity — Inconvenience  —Injury  or 
Hardship. — Effect  of  interpretation  may  be  considered  to 
ascertain  intent.13  If  two  laws  interfere  in  their  application 
to  particular  facts  that  interpretation  should  be  followed 
which  is  recommended  by  the  most  beneficial  reasons.14  In 
case  of  ambiguity  a  statute  should  be  so  construed  as  to  be 
consistent  with  natural  justice  if  not  contrary  to  settled  legal 
principles,15  and,  keeping  in  view  the  object  or  purpose  of  the 
act,  it  may  be  construed  according  to  its  equity.16  But  if 
Congress,  or  a  state  legislature,  pass  a  law  within  the  general 

10  Port  of  Mobile  v.  Louisville  &  n  State  v.  Southern  R.  Co.,  122 
Nashville  R.  Co.,  84  Ala.  115,  4  So.  N.  C.  1052,  30  S.  E.  133,  41  L.  R.  A. 
106,  5  Am.  St.  Rep.  342;  Clark's  Run  246,  11  Am.  &  Eng.  R.  Cas.  (N.  S.) 
&  S.  R.  Turnpike  Road  Co.  v.  Com-  228. 

monwealth,  16  Ky.  L.  Rep.  681,  29        13  Bowers  v.  Smith,  111  Mo.  45,  16 

S.  W.  360;  Mayor,  etc.,  of  New  York  L.  R.  A.  754,  35  Cent.  L.  J.  305,  46 

v.  Starin,  106  N.  Y.  1,  8  N.  Y.  St.  R.  Alb.  L.  J.  204. 

655,  27  Wkly.  Dig.  124,  12  N.  E.  631;        14  Kane  v.  Kansas  City,  Ft.  Smith 

Jones  v.  Erie  &  W.  V.  R.  Co.,  169  Pa.  &  Memphis  Ry.  Co.,  112  Mo.  34,  39, 

333,  32  Atl.  535,  36  W.  N.  C.  441  citing  Rutherforth's  Inst.    (2d  Am. 

(construction  of  railroad  and  occupa-  ed.),  p.  432. 

tion  of  city  streets  as  interpretation        "Plum  v.  Kansas  City,  101  Mo. 

of  grant).  525,    14    S.    W.    657,    10    L.    11.    A. 

11  Mayor,    etc.,    of    New    York    v.  371. 

Starin,  106  X.  Y.  I,  8  X.  V.  St.  H.  '"Harrison  v.  Commonwealth,  83 
655,  27  Wkly.  Dig.  124,  I-'  X.  E.  631.    Ky.  162. 

405 


§   261  CONSTITUTIONAL   LAW — INTERPRETATION 

scope  of  their  constitutional  power,  the  courts  cannot  pronounce 
it  void,  merely  because,  in  their  judgment,  it  is  contrary  to 
the  principles  of  natural  justice; 17  and  natural  equity  will 
not  control  in  case  of  uncertainty,  although  where  there  is 
ambiguity  the  presumption  exists  that  the  legislature  intended 
to  do  equity.18  So  constitutional  restrictions  and  not  natural 
justice  and  equity  are  the  test  of  the  validity  of  statutes.19 
And  where  a  particular  construction  of  a  statute  will  occasion 
great  inconvenience,  or  produce  inequality  and  injustice,  that 
view  is  not  to  be  favored  if  another  and  more  reasonable  in- 
terpretation is  present  in  the  statute.20  So  in  case  the  legis- 
lature has  the  constitutional  power  to  enact  a  given  law,  and 
it  properly  frames  an  act  clearly  expressing  its  legal  intent, 
it  is  the  duty  of  the  court  to  construe  that  act  so  as  to  effectuate 
its  terms.  The  argument  based  on  the  inconvenience  which 
may  result  is  out  of  place  under  such  circumstances.21  Again, 
that  different  sections  of  the  statute  may  subject  different 
classes  of  corporations  to  control  and  result  in  some  incon- 
venience is  not  a  sufficient  reason  for  departure  from  the  plain 
intent  evidenced  by  the  language  used ; 22  but  there  is  a  pre- 
sumption against  a  construction  which  would  render  a  statute 
ineffective  or  inefficient,  or  which  would  cause  grave  public 
injury  or  even  inconvenience.23  An  act  of  Congress  otherwise 
valid  is  not  unconstitutional  because  the  motive  in  enacting 
it  was  to  secure  certain  advantages  for  conditions  of  labor  not 

17  Calder  v.  Bull,  3  Dall.  (3  U.  S.)  Where  the  argument  of  impossibil- 
386,  1  L.  ed.  648,  per  Irdell,  J.  ity  of  applying  a  law  to  a  particular 

18  Lake  Shore  &  M.  S.  R.  Co.  v.  matter  amounts  to  no  more  than  that 
Cincinnati,  W.  &  M.  R.  Co.,  116  Ind.  it  would  result  in  an  inconvenience 
578,  19  N.  E.  440.  which  may  readily  be  avoided,  and 

19  Viemeister  v.  White,  84  N.  Y.  the  intention  of  the  legislature  is 
Supp.  712,  88  App.  Div.  44.  reasonably  clear  under  the  statute, 

20  Knowlton  v.  Moore,  178  U.  S.  such  argument  is  rather  a  matter  for 
41,  20  Sup.  Ct.  747,  44  L.  ed.  969.  the    legislative    body    than    for    the 

21  State  v.  Rat  Portage  Lumber  court.  Ellis  v.  United  States,  206 
Co.  (Minn.,  1908),  115  N.  W.  162.  U.  S.  246,  266,  267,  per  Moody,  J., 

22  Home  Building  &  Loan   Assoc,  dissenting. 

v.  Nolan,  21  Mont.  205,  53  Pac.  23  Bird  v.  United  States,  187  U.  S. 
738.  118,  47  L.  ed.  100,  23  Sup.  Ct.  42. 

406 


OR    CONSTRUCTION    OF   STATUTES    CONTINUED         §   262 

subject  to  the  general  control  of  Congress.24  And  in  testing 
the  constitutionality  of  an  act  of  Congress  the  court  will 
confine  itself  to  the  power  of  Congress  to  pass  the  act  and  may 
not  consider  any  real  or  imaginary  evils  arising  from  its  execu- 
tion; 25  nor  will  additions  be  made  by  construction  to  prevent 
apparent  hardships;26  and  although  the  state  of  the  statute 
law  may  operate  injuriously  at  times  the  situation  cannot  be 
changed  by  the  courts,  but  only  by  legislation.27  Again,  the 
court  will  not  limit  the  power  of  the  State  by  declaring  that 
because  the  judgment  exercised  by  the  legislature  is  unwise 
it  amounts  to  a  denial  of  the  equal  protection  of  the  laws  or 
deprivation  of  property  or  liberty  without  due  process  of  law.28 

§  262.  Contemporaneous  Construction — Extraneous  Mat- 
ters— History — Debates,  etc. — The  general  rule  is  perfectly 
well  settled  that,  where  a  statute  is  of  doubtful  meaning  and 
susceptible  upon  its  face  of  two  constructions,  the  court  may 
look  into  prior  and  contemporaneous  acts,  the  reasons  which 
induced  the  act  in  question,  the  mischiefs  intended  to  be  reme- 
died, the  extraneous  circumstances,  and  the  purpose  intended 
to  be  accomplished  by  it,  to  determine  the  proper  construction. 
But  where  the  act  is  clear  upon  its  face,  and  when  standing 
alone  it  is  fairly  susceptible  of  but  one  construction,  that 
construction  must  be  given  to  it.29  Not  only  will  the  lawmaking 
body  be  presumed  to  know  that  which  is  commonly  known 

u  Ellis  v.  United  States,  206  U.  S.  County,     15     Colo.     320,     25     Pac. 

246,  51  L.  ed.  — ,  27  Sup.  Ct.  — .  508. 

25  Employers'  Liability  Cases,  207  *  Caledonia  Coal  Co.  v.  Baker,  196 

U.  S.  463.  U.  S.  432,  49  L.  ed.  540,  25  Sup.  Ct. 

Consequences  should  not  be  con-  375. 

sidered.     State,  Harris,  v.  Scarboro,  "Heath   &  Milligan   Mfg.   Co.   v. 

110  N.  C.  232.  14  S.  E.  737.  Worst,  207  U.  S.  338. 

That  a   failure  of  corporations  to  w  Hamilton  v.  Rathbonc.  175  U.  S. 

make    annual    reports    is    made    by  414,  419,  421,  44  L.  ed.  219,  20  Sup. 

statute  is  made  evidence  of  non-user  Ct.  155;  Ruggles  v.  Illinois,  108  U.  S. 

when  otherwise  it  would  have  been  526,  27  L.  ed.  812,  2  Sup.  Ct.  832; 

inadmissible  evidence,  does  not  in-  Piatt  v.  Union  Pac.  R.  Co.,  99  U.  S. 

validate   the  enactment.      People  v.  48,  25  L.  ed.  424.     See  Siemens  v. 

Rose,  207  III.  352,  69  N.  E.  762.  Sellers,  123  U.  S.  276,  8  Sup.  Ct.  117, 

"Cheyenne      County      v.      Bent  31 L.  ed.  153. 

407 


§  262 


CONSTITUTIONAL    LAW — INTERPRETATION 


among  men,  but  it  will  be  presumed  to  have  investigated  and 
advised  itself  respecting  the  conditions  made  by  it  the  sub- 
ject of  legislative  enactment.30  It  is  also  a  familiar  rule  of 
interpretation  that  in  the  case  of  a  doubtful  or  ambiguous 
law  the  contemporaneous  construction  of  those  charged  with 
its  execution,  especially  when  it  has  long  prevailed,  is  entitled 
to  great  weight  and  should  not  be  disregarded  or  overturned 
except  for  cogent  reasons,  or  unless  it  is  clear  that  such  con- 
struction is  erroneous.31  The  doctrine  of  contemporaneous 
legislative  construction  will  also  be  considered  in  cases  of 
doubt.32  And  acquiescence  by  the  people  or  governmental 
departments  for  a  long  period  of  time  ought  to  settle  the  con- 


30  Eckerson  v.  City  of  Des  Moines 
(Iowa,  1908),  115  N.  W.  177,  187,  per 
Bishop,  J. 

31  United  States:  United  States 
V.  Finnell,  185  U.  S.  236,  46  L.  ed. 
890,  22  Sup.  Ct.  633;  Pennoyer  v. 
McConnaughy,  140  U.  S.  1,  35  L.  ed. 
363,  11  Sup.  Ct.  699,  aff'g  14  Sawy. 
584,  595,  43  Fed.  196,  339;  Heath  v. 
Wallace,  138  U.  S.  573,  11  Sup.  Ct. 
380,  34  L.  ed.  1083;  Meritt  v.  Cam- 
eron, 137  U.  S.  42,  11  Sup.  Ct.  174, 
34  L.  ed.  772;  United  States  v. 
Johnston,  124  U  S.  236,  31  L.  ed. 
389,  8  Sup.  Ct.  446;  Brown  v.  United 
States,  113  U.  S.  568,  28  L.  ed.  1079, 
5  Sup.  Ct.  648;  United  States  v. 
Pugh,  99  U.  S.  265,  25  L.  ed.  322; 
Smythe  v.  Fiske,  23  Wall.  (90  U.  S.) 
374,  23  L.  ed.  47;  Northern  Pac.  R. 
Co.  v.  Sanders,  47  Fed.  604,  aff' d  49 
Fed.  129,  7  U.  S.  App.  47,  1  C.  C.  A. 
192. 

Arizona:  See  Copper  Queen  Con- 
sol.  Min.  Co.  v.  Board  of  Equalization 
(Ariz.,  1906),  84  Pac.  511. 

District  of  Columbia:  United 
States  v.  Bliss,  12  App.  D.  C.  485, 
26  Wash.  L.  Rep.  293. 

Illinois:  People,  Neil,  v.  Knopf, 
171  111.  191,  49  N.  E.  424. 

408 


Kentucky:  Harrison  v.  Common- 
wealth, 83  Ky.  162. 

Minnesota:  O'Connor  v.  Gertgens, 
85  Minn.  481,  89  N.  W.  866. 

New  York:  People  v.  City  of 
Buffalo,  84  N.  Y.  Supp.  434. 

Washington :  Mississippi  Valley 
Trust  Co.  v.  Hofins,  20  Wash.  272,  55 
Pac.  54. 

West  Virginia:  State  v.  Davis 
(W.  Va.,  1908),  60  S.  E.  584. 

Contemporaneous  construction  is 
a  rule  of  interpretation,  but  it  is  not 
an  absolute  one  and  does  not  pre- 
clude an  inquiry  by  the  courts  as  to 
the  original  correctness  of  such  con- 
struction. A  custom  of  the  govern- 
ment, however  long  continued  by 
successive  officers,  must  yield  to  the 
positive  language  of  the  statute. 
Houghton  v.  Payne,  194  U.  S.  88,  48 
L.  ed.  888,  24  Sup.  Ct.  590. 

32  California:  Burgoyne  v.  Super- 
visors, 5  Cal.  23. 

Kentucky:  Collins  v.  Henderson, 
11  Bush  (74  Ky.),  74. 

Nevada:  State  v.  Parkinson,  5 
Nev.  17. 

Pennsylvania:  Commonwealth  v. 
Paine,  207  Pa.  45,  56  Atl.  317. 

Wisconsin:  Travelers'  Ins.  Co.  v. 


OR   CONSTRUCTION   OF   STATUTES   CONTINUED  §   262 

stitutionality  of  an  act.33  But  a  construction  by  the  legis- 
lative or  executive  departments  will  not  be  followed  where  it 
would  override  the  obviously  plain  meaning  of  the  enactment.34 
The  history  of  the  statute  or  of  the  times  may  be  consid- 
ered, if  necessary,35  but  debates  in  Congress  are  not  appropriate 
sources  of  information  from  which  to  discover  the  meaning 
of  a  congressional  enactment,36  although  resort  has  been  had 
to  journals  37  and  reports  of  committees  in  charge.38  A  legis- 
lative exposition  of  a  doubtful  law,  is  the  exercise  of  a  judicial 
power,  and  if  it  interferes  with  no  vested  rights,  impairs  the 
obligation  of  no  contract,  and  is  not  in  conflict  with  the  pri- 
mary principles  of  our  social  compact,  it  is  in  itself  harmless, 
and  may  be  admitted  to  retroactive  efficiency;  but  if  rights 
have  grown  up  under  a  law  of  somewhat  ambiguous  meaning, 
then  it  cannot  interfere  with  them.  The  construction  of  the 
law  belongs  to  the  courts.39  When  the  executive  department 
charged  with  the  execution  of  a  statute  gives  a  construction 

Fricke,    94    Wis.    258,    68    N.    W.  v.  Reynolds,  94  Mo.  App.  578,  68  S. 

958.  W.  588 

33  People,  Neil,  v.  Knopf,  171  111.  Ohio:     Slinguff     v.     Weaver,     66 

191,  49  N.  E.  424;  Wallace  v.  Board  Ohio  St.  621,  64  N.  E.  574. 

of  Equalization  (Oreg.,  1906),  86  Pac.  Washington:    Scouten  v.  City  of 

365.    See  Warren  v.  Board  of  Regis-  Whatcom,    33    Wash.   273,   74    Pac. 

tration,  72  Mich.  398,  2  L.  R.  A.  203,  389. 

40  N.  W.  553.  Wisconsin:  Brown  v.  Phillips,  71 

3*  State,    Pearson,    v.    Cornell,    54  Wis.  239,  36  N.  W.  242. 

Neb.  647,  75  N.  W.  25.    See  Downes  3B  United  States  v.  Trans-Missouri 

v.  Bidwe'll,  182  U.  S.  244,  45  L.  ed.  Freight  Assoc,  166  U.  S.  290,  41  L. 

1088,  21  Sup.  Ct.  770.  ed.  1007,  17  Sup.  Ct.  540  (a  case  of 

35  United  States:   District  of  Co-  railroads  and  contracts  in  restraint  of 

lumbia  v.   Washington   Market   Co.,  trade).     See  Aldridge  v.  Williams.  3 

108  U.  S.  243,  27  L.  ed.  714,  2  Sup.  How.  (44    U.  S.)  9,  11    L.  ed.  469; 

Ct.  — ;  United  States  v.  Union  Pac.  United  States  v.  Oregon  &  C.  R.  Co., 

Rd.  Co.,  91  U.  S.  72,  23  L.  ed.  224;  57  Fed.  426. 

A  Id  ridge  v.  Williams,  3  How.  (44  U.  "Blake    v.    National    Banks,    23 

S.)  9,  1 1  L.  ed.  469;  United  States  v.  Wall.  (90  U.  S.)  307,  32  I,  ed.  L19. 

Colorado  &  N.  W.  R.  Co.,  157  Fed.  "  United  States  v.  Colorado  &  N. 

32i.  W.  I!.  Co.,  157  Fed.  321. 

Georgia:   Western  &  A.  R.  Co.  v.  M  McLeod  v.  Burroughs,  9Ga.  213. 

State  (Ga.),  It  L.  R.    V  438.  See  also  Spokane   Fall   &   Northern 

Missouri:    Helton,  Ex   parte,  117  Ry.  Co.  v.  Stevens  (Wash.,  1908),  93 

Mb.  App.  609, 93  S.W.  913;  Grimes  Pac.    927;    Northern    Ry.    Co.    v. 

109 


§    263  CONSTITUTIONAL    LAW — INTERPRETATION 

to  it,  and  acts  upon  that  construction  for  a  series  of  years,  the 
court  looks  with  disfavor  upon  a  change  whereby  parties  who 
have  contracted  with  the  government  on  the  faith  of  the  old 
construction  may  be  injured;  especially  when  it  is  attempted 
to  make  the  change  retroactive,  and  to  require  from  the  con- 
tractor repayment  of  moneys  paid  to  him  under  the  former 
construction.40  A  construction  placed  by  the  Attorney  Gen- 
eral upon  a  prohibitory  statute  as  to  trusts  and  combinations, 
giving  it  an  extraterritorial  effect,  will  not  be  adopted  merely 
because  thereafter  the  legislature  rejected  a  proposed  amend- 
ment limiting  the  operation  to  combinations  within  the  State.41 

§  263.  Policy  of  Government,  of  Legislative  Body  or  of 
Law— Public  Policy— General  Principles  of  Law.— What 
is  termed  the  policy  of  the  government  with  reference  to  any 
particular  legislation  is  too  unstable  a  ground  upon  which  to 
rest  the  judgment  of  the  court  in  the  interpretation  of  statutes.42 
And  where  legislative  grants  of  land  for  railroad  aid  are  made 
and  the  statute  is  free  from  all  ambiguity,  the  letter  of  it  is  not 
to  be  disregarded  in  favor  of  a  presumption  as  to  the  policy 
of  the  government.43  Nor  will  the  policy  of  legislation  be  con- 
sidered, as  the  question  is  one  of  the  legislative  power  to  enact.44 
But  it  is  held  that  some  weight  may  be  given  to  general  con- 
siderations of  public  policy  supposed  to  have  influenced  the 
legislature  where  the  meaning  is  uncertain  from  the  language 
used.45  And  when  the  language  of  a  statute  is  plain  and  unam- 
biguous, a  refusal  to  recognize  its  natural  and  obvious  mean- 
ing may  be  justly  regarded  as  indicating  a  purpose  to  change 
the  law  by  judicial  action,  based  upon  some  supposed  policy 

Snohomish  County  (Wash.,  1908),  93  "  Hadden    v.    Collector,    5    Wall. 

Pac.  924.  (72  U.  S.)  107,  18  L.  ed.  518. 

40  United  States  v.  Alabama  Great  43  St.  Paul,  M.  &  M.  Ry.  Co.  v. 
Southern  R.  Co.,  142  U.  S.  615,  35  L.  Phelps,  137  U.  S.  528,  11  Sup.  Ct. 
ed.  1134,  12  Sup.  Ct.  306.  168,  34  L.  ed.  767. 

41  State  v.  Lancashire  F.  Ins.  Co.,  44  Eckerson  v.  City  of  Des  Moines 
66  Ark.  466,  51  S.  W.  633,  45  L.  R.  A.  (Iowa,  1908),  115  N.  W.  177. 

348,  28  Ins.  L.  J.  605  45  Glass  v.  Cedar  Rapids,  68  Iowa, 


207. 


410 


OR    CONSTRUCTION    OF    STATUTES    CONTINUED  §   264 

of  Congress.46  Again,  an  intention  to  surrender  the  right  to 
demand  the  carriage  of  mails  over  subsidized  railroads  at  rea- 
sonable rates,  assumed  in  construing  a  statute  of  the  United 
States,  is  opposed  to  the  established  policy  of  Congress.47  Courts 
will  not  impute  to  the  legislature  an  intention  to  obstruct  or 
impede  the  operation  of  constitutional  provisions  or  to  inno- 
vate upon  the  settled  policy  of  the  law.48  And  a  construction 
should  be  given  so  as  to  be  in  harmony  rather  than  in  conflict 
with  the  general  principles  of  law  where  the  meaning  of  the 
statute  is  doubtful.49 

§264.  Remedial  Statutes. — Remedial  statutes  should  be 
liberally  construed  so  as  to  effectuate  the  purpose  intended, 
advance  the  remedy  and  prevent  the  mischief  or  evil,50  and 
the  precise  words  of  a  remedial  statute  will  be  extended  to 
effect  the  purpose  clearly  manifested.51  So  a  statute  is  a  reme- 
dial one  which  provided  for  a  state  board  of  transportation  with 
certain  powers  as  to  inspection  and  superintending  railroads, 
and  it  should  not  be  strictly  construed.52 

48  Rate  Refrigerating  Co.  v.  Sulz-  New   Jersey:    Camden  &   A.    R. 

berger,  157  U.  S.  1,  39  L.  ed.  601,  15  Transp.  Co.  v.  Briggs,  22  N.  J.  L. 

Sup.  Ct.  508.  623. 

47  Wisconsin  Cent.  R.  Co.  v.  United  North  Carolina:  Morris  v.  Staton, 
States,  164  U.  S.  190,  17  Sup.  Ct.  45,  44  N.  C.  464. 

41  L.  ed.  399.  Oregon:   Tucker   v.  Constable,  16 

48  Webb  v.  Hitter,  60  W.  Va.  193,    Oreg.  407,  19  Pac.  13. 

54  S.  E.  484.  West    Virginia:     Janesville    Hay 

49  Building     &     Loan     Assoc,     v.    Tool  Co.  v.  Boyd,  35  W.  Va.  240,  13 
Sohn,  54  W.  Va.  101,  46  S.  E.  222.        S.  E.  381. 

50 Illinois:    Harrison    v.    National  Wisconsin:      Kendall     v.     Ilynes 

Bank,  108  111.  App.    193,  case   aff'd  Lumber  Co.,  90  Wis.  659,  71  N.  W. 

207  EU.630,  69  N.  E.  871.  1039. 

Indiana:    Connecticut    Mut.    Life  See   Rawson    v.    State,    19   Conn. 

Ins.  Co.  v.  Talbot,  113   Did.  373,  14  292;  Trandt  v.    Bagerman,  27   In.l. 

N.  E.  586.  App.    150,  60  N.   E.    1011;  Carey  v. 

Missouri:  Easley  v.  Bone,  39  Mo.  Giles,  9  Ga.  253. 

App  .'.ss.  r''  Gray    v.    Cumberland    County 

Nebraska:    Williams   v.   Miles,  62  Commrs.,  83  Me.  429,  22  Atl.  376. 

Neb    566,87  N.   W.  315;   Mcintosh  "State,  Transportation   Board,  v. 

v.  Johnson,  51   Neb.   33,  70  N.  W.  Fremonl  E.  &  M.  V.  R.  Co.,  22  Neb. 

522.  313,  35  N.  W.  118. 

411 


§   205  CONSTITUTIONAL    LAW — INTERPRETATION 

§  2G5.  Statutes  in  Pari  Materia. — Statutes  are  in  pari  ma- 
teria which  relate  to  the  same  thing  or  general  subject-matter 
whether  passed  by  the  same  legislature,  or  about  the  same 
time,  or  whenever  passed,  and  even  though  they  do  not  refer 
to  each  other,  are  to  be  construed  together  as  one  system  in 
order  to  determine  the  legislative  purpose  and  arrive  at  the 
true  intent.53    If  a  thing  contained  in  a  subsequent  statute  be 

"United    States:    Cooper    Man-  County  24  Fla.  390,  5  So.  1;  O'Don- 

ufacturing   Co.  v.  Ferguson,   113   U.  o van,  Ex  parte,  24  Fla.  281,  4  So.  789. 

S.   727,  28  L.  ed.    1137    (a    case    of  Illinois:     Chudnovski    v.    Eckels, 

state    right  to    control   foreign    cor-  232  111.  312,  83  N.  E.  846;  Hunt  v. 

porations;    what   is   and   is   not   do-  Chicago    Horse  &  Dummy  Co.,   121 

ing    business    in    State;     interstate  111.  638,  644,  13  N.  E.  176  (right  of 

commerce);    Ryan  v.  Carter,  93  U.  street  railway  company  to  use  city 

S.  78,    84,    23  L.  ed.   807;    Harring-  streets);     Meyer  v.  Hazelwood,    116 

ton  v.   United  States,   11    Wall.  (78  111.  319,  323,  6  N.  E.  480. 

U.  S.)  356,  365,  20  L.ed.  167;  United  Indiana:    Noerr   v.  Schmidt,    151 

States  v.  Babbit,  1  Black  (66  U.  S.),  Ind.  579,  583,  51  N.  E.  332;  Conn  v. 

55,  60,  17  L.  ed.  94;  United  States  Cass  County  Commrs.,  151  Ind.  517, 

v.  Walker,  22  How.  (63  U.  S.)  299,  51   N.  E.  1062;  State,  Michener,  v. 

312,  16  L.  ed.  — ;   Converse  v.  Uni-  Harrison,  116  Ind.  300,  19  N.  E.  146. 

ted  States,  21  How.  (62  U.  S.)  463,  Iowa:    Eckerson   v.  City   of   Des 

467,  16  L.  ed.  — ;   United  States  v.  Moines  (Iowa,  1908),  115  N.  W.  177. 

Freeman,  3  How.  (44  U.  S.)  556,  11  Kansas:  Hall,  In  re,  38  Kan.  670, 

L.  ed.   724;   Patterson  v.   Winn,   11  17  Pac.  649. 

Wheat.  (24  U.  S.)  380,  385,  386,  6  L.  Louisiana:  Richardson  v.  Richard- 

ed.  500;  United  States  v.  Trans-Mis-  son,  38  La.  Ann.  641. 

souri  Freight  Assoc,  58  Fed.  58,  67,  Maine:  French  v.  Cowan,  79  Me. 

19  U.   S.   App.   36,   24   L.   R.   A.  73  426,  10  Atl.  335;  Merrill  v.  Crossman, 

(interstate    commerce;     monopolies;  68  Me.  412. 

"pooling   contracts"    between    com-  Michigan:   Simpkins  v.  Ward,  45 

peting  corporations,   see   same   case,  Mich.  559,  8  N.  W.  507. 

166  U.  S.  290;  United  States  v.  Ben-  Missouri:  State,  Brown,  v.  Klein, 

son,  31  Fed.  896.  116  Mo.  259,  22  S.  W.  693;  Stump 

Alabama:  State  v.  Sloss,  83  Ala.  v.  Hornback,  94  Mo.  26,  6  S.  W.  326; 

93,  3  So.  745  (a  case  of  taxation  of-  Gibbins.v.   Brittenum,   56  Mo.  251; 

gross  receipts  of  business  of  corpora-  Grimes  v.  Reynolds,  94  Mo.  App.  578, 

tion).  68  S.  W.  588. 

Colorado:  People  v.  Raymond,  18  Nebraska:  State  v.  Royse,  71  Neb. 

Colo.  242,  248,  19   L.   R.   A.  649,  32  1,  3,  97  N.  W.  473,  98  N.  W.  459; 

Pac.  429.  State,  Berry,  v.  Babcock,  21  Neb.  599. 

District     of     Columbia:    United  Nevada:   State,  Hallock,  v.  Don- 
States,  Koechlin,  v.  Marble,  2  Mackey  nelly,  20  Nev.  214,  19  Pac.  680. 
(D.  C),  12.  New  Jersey:   Gartner  v.    Cohen, 

Florida:      Ferrari     v.     Escambia  51  N.  J.  L.  125,  16  Atl.  684. 

412 


OR    CONSTRUCTION    OF    STATUTES    CONTINUED 


§  265 


within  the  reason  of  a  former  statute,  it  shall  be  taken  to  be 
within  the  meaning  of  that  statute.  And  if  it  can  be  gathered 
from  a  subsequent  statute  in  pari  materia  what  meaning  the 
legislature  attached  to  the  words  of  a  former  statute,  this  will 
amount  to  a  legislative  declaration  of  its  meaning,  and  will 
govern  the  construction  of  the  first  statute.54  So  a  chapter  of 
a  certain  enactment  extending  the  power,  jurisdiction  and 
control  of  a  court  of  visitation  over  telegraph  companies  and 
telegraphic  service  within  a  State  will  be  held  in  'pari  materia 
with  another  chapter  of  the  statutes  passed  the  same  year 
creating  a  court  of  visitation  and  attempting  to  extend  its 
power,  jurisdiction  and  control  over  the  railways  of  the  State, 
and  it  must  be  construed  in  connection  with  that  statute 
the  same  as  though  both  chapters  constituted  one  enactment.55 


New  York:  Syracuse  Water  Co.  v. 
City  of  Syracuse,  116  N.  Y.  167, 
179,  22  N.  E.  381,  26  N.  Y.  St.  R. 
364,  5  L.  R.  A.  546;  Kilbourne  v. 
Supervisor  of  Sullivan  F.  St.  R.,  62 
Hun  (N.  Y),  210,  217,  41  N.  E.  838, 
aff'g  137  N.  Y.  170,  50  N.  Y.  St.  R. 
376,  33  N.  E.  159. 

North  Carolina:  Wort  ham  v.  Bas- 
ket. 99  N.  C.  70,  5  S.  E.  401. 

Ohio:  State,  Attorney  General,  v. 
Cincinnati  Central  R.  Co.,  37  Ohio 
St.  157,  170. 

Pennsylvania:  White  v.  Mead- 
ville,  177  Pa.  643,  34  L.  R.  A.  567, 
27  Pitts.  L.  J.  (N.  S.)  97,  39  N.  F. 
102,  35  Atl.  695. 

Tennessee:  Graham  v.  Dunn,  3 
Pick.  (87   Tenn.)  458,  462. 

Texas:  Garrison  v.  Richards  (Tex. 
Civ.App.,  1908),  107  S.  W.  861. 

Statutes  are  in  pari  materia  which, 
whenever  passed,  relate  to  the  same 
thing  <>r  general  subject-matter,  and 
are  to  be  construed  together.  Stale 
v.Gerhardt,  145  Ind.  439,  44  N.  E. 
469,  33  L.  R.  A.  313. 

Laws  enacted  by  the  same  legisla- 
ture about  the  same  time  and  con- 


cerning the  same  subject-matter,  be- 
ing in  pari  materia,  are  to  be  taken 
and  considered  together  to  determine 
the  legislative  purpose  and  arrive  at 
the  true  intent.  Western  Union 
Teleg.  Co.  v.  Austin,  67  Kan.  208, 
212,  72  Pac  850. 

Laws  passed  at  the  same  session 
of  the  legislature  and  relating  to  the 
same  subject  are  in  pari  materia  and 
are  to  be  construed  together  as  one. 
Blackwell  v.  First  National  Bank,  10 
N.  M.  555,  63  Pac.  43.  See  also  Gar- 
rison v.  Richardson  (Tex.  Civ.  App., 
1908),  107  S.  W.  861. 

Other  statutes  are  to  be  considered 
even  though  not  in  force  where  mean- 
ing doubtful.  State,  Michener,  v. 
Harrison,  L16  Ind.  300,  19  N.  E.  146; 
Stedmau  v.  Merchants'  A:  I'.  Bank, 
69 Tex.  50,  OS.  \Y.  075. 

Antecedent  ami  subsequent  legis- 
lation    to    1"'    considered.       Cray    V. 

Cumberland  County  Commissioners, 
x:;  Me.  rj'.i,  22  Atl.  370. 

64  United  States  v.  Freeman,  :< 
How.  Ml  U.  S.)556,  II  U  ed.  724. 

'  We  tern  CJnion  Teleg.  Co.  v. 
,\u:  tin,  67  Kan.  208,  212,  72  Pac.  850. 

413 


§§   266,   267      CONSTITUTIONAL   LAW— INTERPRETATION 

§266.  Statutes  in  Pari  Materia  Continued. —The  whole 
system  of  which  a  statute  forms  a  part  should  be  considered 
and  construed  as  one  system  and  be  read  in  pari  materia.56 
So  a  clause  in  controversy  may  be  construed  in  connection 
with  previous  acts  upon  the  same  subject,  with  other  provi- 
sions of  the  same  act  and  with  a  provisions  of  a  statute  upon 
which  the  subject-matter  is  dependent  for  its  enforcement  and 
with  which  as  a  system  the  statute  in  question  forms  a  part.57 
And  where  by  the  constitution  of  a  State  the  subjects  of  land 
titles  and  taxation  are,  to  some  extent,  united  in  one  scheme 
or  plan,  all  statutes  relating  to  either  and  affecting  the  sub- 
ject-matter of  the  provisions  of  the  article  of  the  constitution 
in  which  they  are  set  forth  must  be  construed  and  interpreted 
in  the  light  thereof  and  made  to  harmonize  with  and  conform 
to  said  constitutional  plan.58  The  same  principle  has  been 
applied  in  a  Federal  case  where  a  statute  and  a  clause  of  the 
constitution  of  a  State  imposing  certain  conditions  upon  for- 
eign corporations  as  prerequisites  to  their  transacting  business 
there  were  construed  together  as  relating  to  the  same  subject- 
matter.59 

§  267.  Statutes  in  Pari  Materia  Continued— Exception  to 
or  Qualification  of  Rule.  —The  rule  in  pari  materia,  that  the 
similar  terms  of  like  statutes  should  receive  like  interpretations, 
does  not  apply  where  the  provisions  of  the  statute  relative  to 
the  question  in  controversy  are  plain  and  explicit,  as  the  rule 
is  applicable  only  in  case  of  ambiguity  or  doubt  and  because 
the  objects  intended  to  be  accomplished,  the  evils  to  be  reme- 
died, and  the  provisions  necessary  to  attain  them,  are  radi- 
cally different.  It  is  decided,  therefore,  that  the  rule  in  pari 
materia  is  inapplicable  to  the  Interstate  Commerce  Act  and  the 
Safety  Appliance  Act  where  the  provisions  of  the  latter  are 
plain  and  explicit  in  relation  to  the  question  before  the  court.60 

56  Brace  v.  Solner,  1  Alaska,  361.  59  Cooper    Manufacturing    Co.     v. 

57  Wabash,  St.  Louis  &  Pacific  Ry.  Ferguson,  113  U.  S.  727,  28  L.  ed. 
Co.  v.  Binhert,  106  111.  298,  306.  1137,  5  Sup.  Ct.  739. 

58  Webb  v.  Ritter,  60  W.  Va.  193,  60  United  States  v.  Colorado  & 
54  S.  E.  484.  Northwestern  Rd.  Co.  (C.  C.  A.),  157 

414 


OR    CONSTRUCTION    OF    STATUTES    CONTINUED  §   268 

In  the  case  in  which  this  decision  was  rendered  the  court,  per 
Sanborn,  Cir.  J.,  said:  "It  is  true  that  each  act  was  a  regula- 
tion of  interstate  commerce,  but  so  are  the  Sherman  Anti-Trust 
Act,  the  Employers'  Liability  Act,  the  various  acts  relating  to 
the  inspection  of  steamboats,  and  the  navigation  of  the  in- 
land rivers,  lakes  and  bays,  and  many  other  acts,  too  numerous 
to  mention  or  review.  It  does  not  follow  from  the  facts  that 
the  Interstate  Commerce  Act  was  first  passed,  and  that  it  regu- 
lates commerce  among  the  States,  and  declares  that  its  provi- 
sions shall  apply  to  the  members  of  a  certain  class  of  carriers 
engaged  therein,  that  the  Sherman  Anti-Trust  Act,  the  Safety 
Appliance  Acts,  and  other  subsequent  acts  regulating  commerce 
apply  to  the  members  of  that  class  only,  in  the  face  of  the 
positive  declarations  of  the  later  acts  that  they  shall  govern 
other  parties  and  other  branches  of  commerce.  The  subject 
of  the  first  act  was  the  contracts,  the  rates  of  transportation 
of  articles  of  interstate  commerce;  the  subject  of  the  Safety 
Appliance  Acts  was  the  construction  of  the  vehicles,  the  cars 
and  engines  which  carry  that  commerce.  The  evils  the  for- 
mer was  passed  to  remedy  were  discrimination  and  favoritism 
in  contracts  and  rates  of  carriage;  the  evils  the  latter  was  en- 
acted to  diminish  were  injuries  to  employees  of  carriers  by  the 
use  of  dangerous  cars  and  engines.  The  remedy  for  the  mis- 
chiefs which  induced  the  passage  of  the  former  act  was  equality 
of  contracts  and  rates  of  transportation;  the  remedy  for  the 
evils  at  which  the  latter  act  was  leveled  was  the  equipment 
of  cars  and  engines  with  automatic  couplers.  Neither  in  their 
subjects,  in  the  mischiefs  they  were  enacted  to  remove,  in  the 
remedies  required,  nor  in  the  remedies  provided,  do  these  acts 
relate  to  similar  matters,  and  the  rule  that  the  words  or  terms 
of  acts  in  pari  materia  should  have  similar  interpretations 
ought  not  to  govern  their  construction."  61 

§  208.  Words  or  Provisions  of   Prior  Statute  Adopted  in 

Fed.    321,    330,    citing   Endlich   on   Northwestern  Rd.  Co.  (C.  C.  A.),  157 

Intcrp.  of  Stat.  §  53,  p.  67.  Fed.  321,  330. 

91  United    States    v.    Colorado    & 

415 


§   269  CONSTITUTIONAL    LAW — INTERPRETATION 

Later  Act. — Words  in  a  subsequent  act  are  presumed  to 
be  used  in  the  same  sense  as  in  a  prior  act  under  which 
they  have  acquired,  through  judicial  interpretation,  a  definite 
meaning,  unless  a  contrary  intent  appears.62  So  the  construc- 
tion of  a  subsequent  statute  will  follow  that  of  a  previous 
one  from  which  it  is  derived  where  the  same  words  are  em- 
ployed in  the  same  connection.63  And  where  the  Federal 
Supreme  Court  has  given  a  construction  to  relative  provisions 
in  different  parts  of  a  statute,  and  Congress  then  makes  a  new 
enactment  respecting  the  same  subject-matter,  with  provi- 
sions in  different  sections  bearing  like  relations  to  each  other, 
and  without  indicating  a  purpose  to  vary  from  that  construction, 
the  court  is  bound  to  construe  the  two  provisions  in  the  differ- 
ent sections  of  the  new  statute  in  the  same  sense  which,  in 
previous  statutes,  had  uniformly  been  given  to  them,  and  not 
invent  a  new  application  and  relation  of  the  two  classes.64 

§269.  Derivative  Statutes — Construction  of  Statutes 
Adopted  from  Foreign  State  or  Country.  — The  known  ad- 
judged construction  of  a  statute  by  the  highest  court  of  a 
foreign  State  or  country  where  it  was  enacted  is  generally  to 
be  given  to  it  when  such  enactment  is  thereafter  adopted  by 
another  State  or  country,  unless  such  interpretation  is  contrary 
to  the  spirit  and  policy  of  the  adopting  State,  or  country,  or 
unless  circumstances  are  so  different  as  to  necessitate  a  dif- 
ferent rule.65    So  if  Congress  adopts  a  state  statute  it  adopts 

62  The  Abbotsford,  98  U.  S.  440,  25    v.  Rathbone,  175  U.  S.  414,  20  Sup. 
L.  ed.  168.  Ct.  155,  44  L.  ed.  219,  case  reverses 

63  Guggenheim  Smelting  Co.,  In  re,    9  App.  D.  C.  48. 

121  Fed.  153;  Cooper  v.  Yoakum,  91  6*  Claflin    v.    Commonwealth    Ins. 

Tex.  391,  43  S.  W.  871  (words  of  later  Co.,  110  U.  S.  81,  28  L.  ed.  76,  3  Sup. 

statute    adopted    from    earlier    one,  Ct.  507. 

adopts     construction);     Sanders     v.  65  United  States:  James  v.  Appel, 

Bridges,  67  Tex.  93,  2  S.  W.  663  (stat-  192  IT.  S.  129,  24  Sup.  Ct.  224,  48 

ute  adopting  language  of  prior  enact-  L.  ed.  328  (a  statute  copied  from  a 

ment  adopts  its  construction  by  high-  similar  statute  of  a  foreign  State  or 

est  tribunal.  country  is  generally  presumed  to  be 

Prior  acts  may  be  cited  to  solve  but  adopted  with  the  construction  which 

not  to  create  an  ambiguity.    Hamilton  it  already  has  received);   Henrietta 

416 


OR    CONSTRUCTION    OF    STATUTES    CONTINUED 


§  269 


its  construction.66    But  the  rule  that  the  known  and  settled 
construction  of  the  statute  of  one  State  will  be  regarded  as 


Mining  &  Milling  Co.  v.  Gardner,  173 
U.  S.  123,  43  L.  ed.  637,  19  Sup.  Ct. 
327;  Boise  City  Artesian  Hot  &  Cold 
Water  Co.  v.  Boise  City,  123  Fed. 
232;  Coulter  v.  Stafford  (C.  C),  48 
Fed.  266. 

Arizona:  Costello  v.  Muheim 
(Ariz.,  1906),  84  Pac.  906.  Compare 
Copper  Queen  Consol.  Mining  Co.  v. 
Territorial  Board  of  Equalization 
(Ariz.,  1906),  84  Pac.  511. 

Arkansas:  McNutt  v.  McNutt 
(Ark.,  1906),  95  S.  W.  778. 

Florida:  Atlantic  Coast  Line  Rd. 
Co.  v.  Beazley  (Fla.,  1908),  45  So. 
761  (unless  contrary  to  the  spirit  and 
policy  of  the  laws  of  the  adopting 
State;  a  case  of  liability  of  railroad 
company;  fellow  servant). 

Colorado:  Chilcott  v.  Hartm,  23 
Colo.  40,  45  Pac.  391,  35  L.  R.  A.  41; 
Omaha  &  G.  Smelting  &  Refining  Co. 
v.  Tabor,  13  Colo.  41,  5  L.  R.  A.  226, 
21  Pac.  925,  2  Denver  Leg.  N.  281. 

Connecticut:  See  West  Hartford 
v.  Hartford  Water  Commrs.,  68  Conn. 
323,  36  Atl.  786. 

Dakota:  White  v.  Chicago,  M.  & 
St.  Paul  R.  Co.,  5  Dak.  508,  41  N. 
W.  730. 

District  of  Columbia:  Strasburger 
v.  Dodge,  12  App.  D.  C.  37,  26 
Wash.  L.  Rep.  8  (adopted  without 
material  change,  carries  construc- 
tion). 

Idaho:  Stein  v.  Morrison,  9  Idaho, 
426,  75  Pac.  246. 

Indiana:  Laporte,  City  of,  v. 
Gamewell  Fire  Alarm  Teleg.  Co., 
146  Ind.  466,  469,  45  N.  E.  588,  35 
L.  R.  A.  686,  58  Am.  St.  Rep.  359 
(contract  for  fire  alarm  system  made 


with  the  company  by  a  city;  limita- 
tion of  indebtedness  of  municipality). 

Kansas:  Missouri  Pac.  Ry.  Co. 
v.  Haley,  25  Kan.  35,  53  (Comp. 
Laws,  1879,  chap.  84,  §  29,  adopted 
from  another  State,  making  railroad 
companies  liable  for  damages  to 
employee  by  negligence  of  its  agents, 
etc.).  Compare  State  v.  Campbell 
(Kansas,  1906),  85  Pac.  784. 

Massachusetts:  Ryalls  v.  Me- 
chanics Mills,  150  Mass.  190,  191- 
193,  5  L.  R.  A.  667,  22  N.  E.  766 
(Employers'  Liability  Act,  Stat. 
1887,  c.  270,  copied  verbatim  with 
same  variations  of  detail  from  the 
English  Stat.,  43  &  44  Vict.,  c.  42); 
Pratt  v.  American  Bell  Teleph.  Co., 
141  Mass.  225,  227,  5  N.  E.  307,  55 
Am.  St.  Rep.  465  (Stock  Jobbing 
Act,  Pub.  Stat.,  c.  78,  §  6). 

Minnesota:  Nicolet  National  Bank 
v.  City  Bank,  38  Minn.  85,  8  Am. 
St.  Rep.  643,  35  N.  W.  577. 

Missouri:  Bowers  v.  Smith,  111 
Mo.  45,  20  S.  W.  101,  16  L.  R.  A. 
754,  35  Cent.  L.  J.  305,  46  Alb.  L. 
Jour.  204,  aff'g  17  S.  W.  76  (statutes 
from  other  States  construed  in  sub- 
ordination to  their  constitution  and 
laws). 

Montana:  Oleson  v.  Wilson,  20 
Mont.  544,  52  Pac.  372,  63  Am.  St. 
Rep.  639;  First  National  Bank  v. 
Bell  Silver  &  Copper  Mining  Co.,  8 
Mont.  32,  19  Pac.  403.  Compare 
Ancient  Order  of  Hibernians  v. 
Sparrow,  29  Mont,  132,  74  Pac.  197, 
fil  L.  H.  A.  128. 

Nebraska:  Forester  v.  Kearney 
National  Bank,  49  Neb.  655,  68  N.  W. 
1059. 


"Willis     v.      Eastern     Trust    & 
Banking  Co.,  169  U.  S.  295,  18  Sup. 

27 


Ct,  347,  42  L.  ed.  752,  26  Wash.  L. 
Rep.  166. 

417 


§    269  CONSTITUTIONAL    LAW — INTERPRETATION 

accompanying  its  adoption  by  another  is  not  applicable  where 
that  construction  had  not  been  announced  when  the  statute 
was  adopted;  nor  when  the  statute  is  changed  in  the  adop- 
tion.67 Nor  is  such  construction  absolutely  binding  where  it  is 
subsequently  overruled  in  the  State  of  original  enactment.68 
And  where  a  statute  of  one  State  has  been  substantially  adopted 
in  another  and  as  enacted  in  the  latter  is  adopted  in  still 
another  State  and  the  second  adopting  State  had  declined  to 
follow  the  construction  of  the  State  of  its  original  enactment, 
and  a  case  arose  in  the  third  adopting  State,  the  court  was  held 
at  liberty  to  follow  its  own  judgment  in  the  interpretation  of 
the  statute  and  was  not  obliged  to  follow  the  construction 
given  such  enactment  by  the  second  adopting  State.69  Again, 
subsequent  additions  and  modifications  of  adopted  statutes 
are  not  adopted  where  there  is  not  an  expressed  or  strongly 
implied  intent  so  to  do.70    Where  English  statutes  have  been 

New  Jersey:  State,  Anderson,  v.  Utah:     State     v.    Mortensen,    26 

Camden,  58  N.  J.  L.  515,  33  Atl.  846.  Utah,   312,  73  Pac.  562,  633;  Dixon 

North  Carolina:   Bridgers  v.  Tay-  v.   Ricketts,  26   Utah,  215,  72  Pac. 

lor,    102  N.   C.   86,   8  S.  E.   893,  3  947;  People  v.  Ritchie,  12  Utah,  180, 

L.  R.  A.  376.  42  Pac.  209. 

Oklahoma:     National  Live  Stock  Wisconsin:      State,      Rogers,     v. 

Commission  Co.  v.  Taliaferro  (Okla.,  Wheeler,  97  Wis.  96,  72  N.  W.  225; 

1908),  93  Pac.  983.  Milwaukee  County  v.  Sheboygan,  94 

South     Dakota:     Yankton    Sav.  Wis.  58,  68  N.  W.  387;  Pomeroy  v. 

Bank  v.  Gutterson,  15  S.  Dak.  486,  Pomeroy,  93  Wis.  262,  67  N.  W.  430. 

90    N.    W.    144;    Adams    v.    Grand  Such  construction  must  have  been  by 

Island  &  W.  C.  R.  Co.,  10  S.  Dak.  highest  court  and  so  long  established  as 

239,  72  N.  W.  577.  to  raise  presumption  that  legislature 

Tennessee:     Compare    Smith    v.  adopting  it  knew  of  such  construc- 

Dayton  Coal  &  Iron  Co.,  115  Tenn.  tion.     Smith  v.  Baker,  5  Okla.  326, 

543.  49  Pac.  61. 

67  Stutsman    County    v.    Wallace,  &  Rio  Grande  R.  Co.,  25  Colo.  177, 

142  U.  S.  293,  35  L.  ed.   1018,   12  53  Pac.  454,  30  Chic.  Leg.  N.  427, 

Sup.    Ct.    227    (taxation;    sales    for  10  Am.  &  Eng.  R.  Cas.  (N.  S.)   708. 

taxes;  railroads;  lands).  68  Oleson  v.  Wilson,  20  Mont.  544, 

Statute     adopted     from     another  52  Pac.  372,  63  Am.  St.  Rep.  639. 
State;  rule   as  to   adoption   of   con-  69  Coulam  v.  Doull,  133  U.  S.  216, 
struction  and  presumption  that  legis-  33  L.  ed.  596,  10  Sup.  Ct.  253. 
lature  had  such  construction  in  mind  70  Postal  Teleg.  Cable  Co.  v.  South- 
does  not  apply  to  decisions  rendered  ern   R.   Co.    (C.   C),    89   Fed.    190; 
after  such  adoption.    Olin  v.  Denver  Andrews  v.  People,  173  111.  123,  50 

418 


OR   CONSTRUCTION    OF   STATUTES    CONTINUED         §  270 

adopted  into  our  own  legislation,  the  known  and  settled  con- 
struction of  those  statutes  by  courts  of  law,  has  been  con- 
sidered as  silently  incorporated  into  the  acts,  or  has  been  re- 
ceived with  all  the  weight  of  authority.71  When  a  British  stat- 
ute is  adopted  by  Congress  by  reference,  such  adoption  always 
refers  to  the  law  existing  at  the  time  of  adoption  only  and  no 
subsequent  British  legislation  affects  it.72 

§  270.  Re-enactment  —  Consolidation  —  Revised  Statutes 
— Codes. — Where  the  language  of  a  statute  which  has  re- 
ceived a  construction  by  the  highest  court  is  adopted  by  re- 
enactment,  or  by  a  revision  or  consolidation  of  statutes  or 
codes,  it  carries  with  it  the  construction  given  it  before  such 
adoption,  unless  it  is  clearly  manifest  that  the  legislature 
intended  that  it  should,  as  adopted,  receive  a  different  interpre- 
tation.73   The  presumption  is,  in  such  case,  that  the  legisla- 

N.  E.  335;  Court  of  Insolvency  v.  The    construction    which    British 

Meldon,  69  Vt.  110,  38  Atl.  167.  statutes  had  received  in  England,  at 

71  McDonald  v.  Hovey,   110  U.  S.  the   time   of  their  adoption   in   this 
619,  28  L.  ed.  269,  4  Sup.  Ct.  142.  country,  indeed,  to  the  time  of  the 

The  rule  uniformly  observed  by  separation  of  this  country  from  the 
the  Federal  Supreme  Court,  in  con-  British  empire,  may  very  properly 
st  ruing  statutes  is  to  adopt  the  con-  be  considered  as  accompanying  the 
struction  made  by  the  courts  of  the  statutes  themselves,  and  forming  an 
country,  by  whose  legislature  the  integral  part  of  them;  but  however 
statute  was  enacted.  This  rule  may  subsequent  decisions  may  be  re- 
be  susceptible  of  some  modification  spected,  and  they  are  entitled  to 
when  applied  to  British  statutes  great  respect,  their  absolute  authority 
which  are  adopted  in  any  of  the  is  not  admitted;  if  the  English  courts 
States;  by  adopting  them  they  be-  vary  their  construction  of  a  statute 
come  our  own,  as  entirely  as  if  they  which  is  common  to  both  countries, 
bad  been  enacted  by  the  legislature  the  Federal  Supreme  Court  asserts 
of  the  State.  Cathcart  v.  Robinson,  that  it  does  not  hold  itself  bound  to 
."  Pet.  (30  U.  S.)  264,  8  L.  ed.  120.  fluctuate  with  them.  Cathcart  v. 
See  Urown  v.  Walker,  161  U.  S.  591,  Kol.inson,  5  Pet.  (30  U.  S.)  264,  8 
600,  40  L.  ed.  819,  16  Sup.  Ct.  644,  L.  ed.  120. 
per  Brown,  J.  n  United  States:  Sessions  v.  Ro- 

Statutes   adopted    from    England;  madka,  145  U.  S.  29,  36  L.  ed.  609, 

con  traction  there  will  be  of  force.  12  Sup.  Ct.  799  (where  the  Revised 

Jarvis  v.   Hitch,   161    Ind.   217,  <17  Statutes  adopt  language  of  a  previous 

\.  E.  1057,  citing  numerous  cases.  statute,  Congress  must  be  considered 

72  Kendall  v.  United  States,  12  Pet.  as  adopting  thai  construction). 

(37  XI.  S.)  524,  9  L.  ed.  11 81.  Alabama:     Potter     v.    State,    92 

419 


§   270  CONSTITUTIONAL    LAW — INTERPRETATION 

ture  had  in  mind  a  known  judicial  construction.74  And  where 
the  language  of  the  revision  is  fairly  consistent  with  that  of 
a  prior  statute  it  will  be  presumed  that  the  revisers  have  not 
changed  the  law.75  If  the  United  States  Supreme  Court  has 
construed  relative  provisions  in  different  parts  of  a  statute  and 
Congress  then  makes  a  new  enactment  on  the  same  subject- 
matter,  with  provisions  bearing  like  relations,  they  must  be 
construed  in  the  same  way.76  But  an  act  included  in  a  code 
by  the  codifier  is  not  a  part  of  such  code  when  the  latter  was 
adopted  before  the  passage  of  the  act,  and  the  enactment 
should  be  construed  in  the  form  in  which  it  was  enacted,  in- 
dependently of  the  code;77  and  a  statute  is  not  given  greater 
efficacy  by  embodying  it  in  a  statutory  revision.78  If  the 
meaning  is  plain  the  courts  cannot  look  to  the  statutes  codi- 
fied in  the  Revised  Statutes,  and  repealed  with  their  enactment, 
to  see  if  Congress  erred  in  that  revision,  but  may  do  so  when 
necessary  to  interpret  obscure  and  ambiguous  phrases  in  the 
revision  or  to  construe  doubtful  language  used  in  expressing 
the  meaning  of  Congress.79    Again,  upon  a  revision  of  statutes 

Ala.  37,  9  So.  402;  Snider  v.  Barks,    Co.,  110  U.  S.  81,  28  L.  ed.  76,  3  Sup. 

84  Ala.  53,  4  So.  225;  Woolsey  v.    Ct.  507. 

Cade,  54  Ala.  378,  25  Am.  Rep.  711.         "  Rayford  v.   Faulk   (Ala.,   1908), 

Indiana:    Hilliker  v.  Citizens'  St.    45  So.  714  (an  act  to  regulate  insur- 
Ry.    Co.,    152    Ind.    86,   52    N.    E.    ance  business). 
607.  78  Knight    v.    Ocean    County,    49 

Nebraska:  State,  Pearson,  v.  Cor-   N.  J.  L.  485,  12  Atl.  625. 
nell,  54  Neb.  647,  75  N.  W.  25.  79  Bate  Refrigerating  Co.  v.  Sulz- 

Texas:  Hussey  v.  Moser,  70  Tex.  berger,  157  U.  S.  1,  15  Sup.  Ct.  508, 
42,  7  S.  W.  606.  39  L.  ed.  601 ;  Dwight  v.  Merritt,  140 

Wisconsin:    State,   Rochester,   v.    U.  S.  213,  11  Sup.  Ct.  568,  35  L.  ed. 
Racine    County,    70    Wis.    543,    36    450. 
N.  W.  399.  The     Revised     Statutes     of     the 

74  Woolsey  v.  Cade,  54  Ala.  378,  United  States  must  be  accepted  as 
25  Am.  Rep.  711.  See  White  v.  law  on  the  subjects  they  embrace,  as 
State,  134  Ala.  197,  32  So.  320;  it  existed  December  1,  1873.  When 
Camp  v.  Wabash  R.  Co.,  94  Mo.  App.  their  meaning  is  plain  the  court  can- 
272,  68  S.  W.  96.  not  recur  to  the  original  statutes  to 

75  Duffield  v.  Pike,  71  Conn.  521,  42  see  if  errors  were  committed  in  revis- 
Atl.  641;  Bartram  v.  Hopkins,  71  ing  them,  but  may  do  so  when  neces- 
Conn.  505,  42  Atl.  645.  sary  to  interpret  or  construe  doubtful 

78  Claflin    v.    Commonwealth    Ins.    language.     United  States  v.  Bowen, 

420 


OR    CONSTRUCTION    OF    STATUTES    CONTINUED  §    270 

a  different  meaning  is  not  to  be  given  to  them  without  some 
substantial  change  of  phraseology  other  than  what  may  have 
been  necessary  to  abbreviate  the  form  of  law.80  But  a  change 
in  the  phraseology  creates  a  presumption  of  change  of  intent 
of  the  legislative  body  from  that  expressed  in  the  former 
statute.81  And  when  the  purpose  of  a  prior  law  is  continued, 
its  words  usually  are  so  that  an  omission  of  the  words  implies 
an  omission  of  the  purpose;82  that  is,  if  the  same  subject- 
matter  is  covered  by  the  Revised  Statutes  of  a  State,  the  failure 
to  include  the  provisions  of  an  earlier  statute  on  the  subject 
operates  as  a  repeal  thereof.8  So  a  code  revision,  repealing 
all  acts  relating  to  the  subject  codified,  repeals  provisions 
omitted  therefrom  under  corresponding  sections.84  A  statute 
revising  the  whole  subject-matter  of  a  prior  one  impliedly 
repeals  it.85  So  a  statutory  revision  of  the  entire  law  as  to  the 
fire  insurance  business,  including  the  right  of  foreign  insurance 
corporations  to  transact  business  in  the  State,  repeals  prior 
statutes  relating  to  foreign  insurance  companies  doing  business 

100  U.  S.  508,  25  L.  ed.  631,  followed  Where  statutes  are  consolidated 
in  Bate  Refrigerating  Co.  v.  Sulz-  reference  may  be  had  to  the  inter- 
berger,  157  TJ.  S.  1,  39  L.  ed.  601,  pretation  of  original  acts  so  con- 
15  Sup.  Ct.  508  (which  is  cited  in  solidated.  Hooper  v.  Creager,  84 
Hamilton  v.  Rathbone,  175  U.  S.  Md.  358,  36  Atl.  359,  35  L.  R.  A.  210, 
414,  421,  44  L.  ed.  219,  20  Sup.  Ct.  denying  rehearing  of  84  Md.  195,  35 
155,  which  cites  United  States  v.  Atl.  967,  1103,  35  L.  R.  A.  202. 
Lacher,  134  U.  S.  624,  10  Sup.  Ct.  Compare  Gaines  v.  Marye,  94  Va. 
625,  33  L.  ed.  1080;  United  States  v.  225,  26  S.  E.  511. 

Averill,  130  U.  S.  335,  32  L.  ed.  977,  80  McDonald  v.  Hovey,  110  U.  S. 

9  Sup.  Ct.  — ;  Cambria    Iron   Co.  v.  619,  28  L.  ed.  269,  4  Sup.  Ct.  142. 

Ashburn,  118  U.  S.  54,  6  Sup.  Ct.  929,  81  Crawford   v.   Burke,    195  U.   S. 

30  L.  ed.  60;Deffebackv.  Hawke,  115  176,    25    Sup.    Ct.    9,    49    L.    ed. 

U.  S.  392,  6  Sup.  Ct.  95,  29  L.  ed.  147. 

423),  approved  in  Arthur  v.  Dodge,  "  Price  v.  Chicago  Title  &  Trust 

101  U.  S.  34,  29  L.  ed.  948.  Co.,  182  U.  S.  438,  45  L.  ed.  1171,  21 
Original  statutes  examined  in  con-  Sup.  Ct.  906. 

struing  code,  to  give  effect  originally  83  National   Bank  v.   Williams,  38 

intended.     Gunter  v.  State,  83  Ala.  Fla.  305,  20  So.  931. 

96,  3  So.  600.  84  Packett    v.    Ducktown    Sulphur 

In   case  of  compiled   codes  resort  C.  &  I.  Co.,  97  Tenn.  690,  37  S.  W. 

may  be  had  to  original  for  construe-  698. 

tion.      Runnels   v.   State    (Tex.  Civ.  8S  Keese  v.  Denver,  10  Colo.    112, 

App.,  1903),  77  S.  W.  458.  15  Pac.  825. 

421 


§  271 


CONSTITUTIONAL    LAW — INTERPRETATION 


in  the  State.86  Substantial  provisions  of  an  old  statute  enacted 
into  a  new  one  with  slight  modifications  make  the  new  statute 
to  operate  as  a  continuation  of  the  old  one  with  the  added 
modifications.87  But  the  re-enactment  continues  the  statute 
in  force  and  does  not  repeal  and  re-enact.88 


§  271.  Construction  by  a  State  of  Its  Statutes— How  Far 
Respected  in  Courts  of  Other  States.— The  interpretation  of 
the  statutes  of  a  State  by  its  highest  judicial  tribunal  will 
ordinarily  be  followed  by  the  courts  of  other  States  as  an  au- 
thoritative exposition  of  the  construction  of  the  statute,  even 
though  a  different  construction  might  have  been  given  to  the 
same  language  by  the  court  which  follows  such  interpretation. 
But  it  is  held  that  the  rule  does  not  apply  to  questions  under 
general  or  common  law.89 


86  Continental  Ins.  Co.  v.  Riggen, 
31  Oreg.  336,  48  Pac.  476,  26  Ins. 
L.  J.  590. 

87  Bear  Lake  &  River  Waterworks 
&  Irrig.  Co.  v.  Garland,  164  U.  S.  1, 
17  Sup.  Ct.  7,  41  L.  ed.  327.  See 
Matter  of  Prime,  136  N.  Y.  347,  49 
N.  Y.  St.  R.  658,  32  N.  E.  1091, 
aff'g  64  Hun,  50,  IS  N.  Y.  Supp. 
603,  45  N.  Y.  St.  R.  832;  McAvoy  v. 
City  of  New  York,  52  N.  Y.  App. 
Div.  485,  488;  Marsh  v.  Kaye,  44 
N.  Y.  App.  Div.  68,  74;  Roddy  v. 
Brooklyn  Heights  R.  Co.,  23  'Misc. 
373;  Taylor  v.  Empire  State  Sav. 
Bank,  66  Hun,  540;  N.  Y.  Stat. 
Const,  Law  (L.  1892,  chap.  677),  §  32. 

88  State  v.  Kibling,  63  Vt.  636,  22 
Atl.  613. 

89  United  States:  Bate  Refrigerat- 
ing Co.  v.  Gillett  (C.  C),  20  Fed.  192. 

Alabama:  Bloodgood  v.  Grasey,  31 
Ala.  575.  Compare  Nelson  v.  Goree, 
34  Ala.  565. 

Georgia:  Clark  v.  Turner,  73  Ga.  1 
(judgment  court  of  State  where  cor- 
poration chartered,  construing  char- 
ter will  be  followed). 

422 


Illinois:  Van  Matre  v.  Sankey,  148 
111.  536,  39  Am.  St.  Rep.  196,  36 
N.  E.  628,  23  L.  R.  A.  665  (will 
ordinarily  be  accepted  although  dif- 
ferent construction  might  have  been 
given  to  same  language  by  court 
construing  same). 

Iowa:  Franklin  v.  Twogood,  25 
Iowa,  520,  96  Am.  Dec.  73  (will  be 
followed,  but  rule  does  not  apply  to 
questions  under  general  or  common 
law). 

Kansas:  Hamilton  v.  Hannibal  & 
St.  Joseph  Rd.  Co.,  39  Kan.  56,  18 
Pac.  57  (action  for  damages  for  per- 
son killed  brought  in  Kansas  under 
Missouri  statute). 

New  Jersey:  Watson  v.  Lane,  52 
N.  J.  L.  550,  10  L.  R.  A.  784,  20  Atl. 
894  (will  be  accepted  as  conclusive). 

New  York:  Leonard  v.  Columbia 
Steam  Navigation  Co.,  84  N.  Y.  48, 
38  Am.  Rep.  491  (will  be  controlling; 
action  by  personal  representative  for 
death  from  injury  received  in  an- 
other State). 

North  Carolina:  Watson  v.  Orr, 
14  N.  C.  161. 


OR   CONSTRUCTION    OF  STATUTES    CONTINUED         §   272 

§  272.  Construction  of  State  Constitutions  and   Statutes 
by  State  Courts— How  Far  Respected  by  Federal  Courts.— 

It  is  a  well-recognized  general  rule  that  the  construction  or 
interpretation  by  the  highest  court  of  a  State  of  its  own  con- 
stitution and  statutes  are  binding  upon  and  will  be  followed 
by  the  Federal  courts,90  however   much  they  may  doubt  the 

Pennsylvania:     Grant    v.    Henry  Covington  v.   Kentucky,   173  U.  S. 

Clay  Coal  Co.,  80  Pa.  208;  Merrimac  231,  19  Sup.  Ct.  383,  43  L.  ed.  679; 

Mining  Co.  v.  Levy,  54  Pa.  227,  93  Backus  v.  Fort  St.  Union  Depot  Co., 

Am.   Dec.   697    (charter  of  another  169  U.  S.  557,  42  L.  ed.  853,  18  Sup. 

State;   rights   and   duties   of   stock-  Ct,  445;  Stutsman  County  v.  Wal- 

holders  thereunder).  lace,  142  U.  S.  293,  35  L.  ed.  1018,  12 

Texas:  Powell  v.  De  Blane,  23 Tex.  Sup.    Ct.    227;    Norton    v.    Shelby 

66  (binding  as  to  rights  of  property  County,   118  U.  S.  425,  6  Sup.  Ct. 

and  of   action    depending  on  these  1121,  30  L.  ed.  178;  State  Railroad 

laws).  Tax  Cases,  92  U.  S.  575,  23  L.  ed. 

Vermont:  Blaine  v.  Curtis,  59  Vt.  663;   Nesmith  v.   Sheldon,   7   How. 

120,  59  Am.  Rep.  702,  7  Atl.  708.  (48  U.  S.)  812,  12  L.  ed.  925. 

Washington:  Whitman  v.  Mast,  If  the  state  statute  as  construed  by 
Buford  &  Burwell  Co.,  11  Wash.  318,  its  highest  court  is  valid  under  the 
39  Pac.  649,  48  Am.  St.  Rep.  874  Federal  Constitution,  the  Federal  Su- 
(assignment,  and  effect  on  property  preme  Court  is  bound  by  that  con- 
elsewhere),  struction.      New    York    Central    & 

West  Virginia:    Mimick  v.  Ming  Hudson  River  Rd.  Co.  v.  Miller,  202 

Iron  Works  Co.,  25  W.  Va.  184  (lia-  U.  S.  584,  50  L.  ed.  — ,  26  Sup.  Ct. 

bility  of  stockholders).  — ;  Minnesota  Iron  Co.  v.  Kline,  199 

so  Strickley  v.  Highland  Boy  Gold  U.  S.  593,  26  Sup.  Ct.  159,  50  L.  ed. 

Min.  Co.,  200  U.  S.  527,  50  L.  ed.  581,  322. 

26  Sup.  Ct.  301  (following  Clark  v.  In    a   matter   of    local    and    non- 

Nash,  198  U.  S.  361,  25  Sup.  Ct.  676,  Federal   concern   where   no    Federal 

49  L.  ed.  1081);  West  v.  Louisiana,  question  is  involved  the  Federal  Su- 

194  U.  S.  258,  48  L.  ed.  965,  24  Sup.  preme  Court  adopts  and  follows  the 

Ct.   650;  Carstairs  v.  Cochran,    193  construction  uniformly  given  to  the 

U.  S.  10,  24  Sup.  Ct.  318,  48  L.  ed.  constitution  and  laws  of  a  State  by 

596;  American  Steel  &  Wire  Co.  v.  its  highest  court.    Board  of  Liquida- 

Speed,   192  U.  S.  500,  24  Sup.  Ct.  tion  of  New  Orleans  v.  Louisiana,  179 

365,  48  L.  ed.  538;  People's  National  U.  S.  622,  45  L.  ed.  347,  21  Sup.  Ct. 

Bk.'v.  Marye,  191  U.  S.  272,  48  L.  ed.  — ;    Fairfield  v.  County  of  Gallatin, 

180,    24    Sup.    Ct.    68;    Schaefer   v.  100  U.  S.  47,  25  L.  ed.  544. 

Werling,   188  U.  S.  516,  47  L.  ed.  State  court  construction  conclusive 

570,  23  Sup.  Ct.  449;  Iowa  Life  Ins.  in  a  case  not  involving  any  question 

Co.  v.  Lewis,  187  U.  S.  335,  23  Sup.  re-examinable    in    the   Federal    Su- 

Ct.  126,  47  L.  ed.  204;  Louisville  &  preme  Court  under  the  twenty-fifth 

N.  R.  Co.   v.   Kentucky,    183  U.  S.  section  of  the  Judiciary  Act.      Provi- 

503,  46  L.  ed.  298,  22  Sup.  Ct.  95;  dent  Institution  v.  Massachusetts,  6 

423 


§   272  CONSTITUTIONAL    LAW— INTERPRETATION 

soundness  of  the  interpretation,91  and  even  though  the  state 
Supreme  Court  may  have  determined  the  meaning  and  scope 
of  the  statute  by  pursuing  a  rule  of  construction  different  from 
that  recognized  by  the  Federal  court.92  The  words  of  Chief 
Justice  Marshall  are  pertinent,  they  are  as  follows:  "This  court 
has  uniformly  professed  its  disposition,  in  cases  depending 
upon  the  laws  of  a  particular  State,  to  adopt  the  construction 
which  the  courts  of  the  State  have  given  to  those  laws.  This 
course  is  founded  on  the  principle,  supposed  to  be  universally 
recognized,  that  the  judicial  department  of  every  government, 
where  such  department  exists,  is  the  appropriate  organ  for 
construing  the  legislative  acts  of  that  government.  Thus  no 
court  in  the  universe,  which  professed  to  be  governed  by  prin- 
ciple, would,  we  presume,  undertake  to  say,  that  the  courts  of 
Great  Britain,  or  of  France,  or  of  any  other  nation,  had  mis- 
understood their  own  statutes,  and  therefore  erect  itself  into 
a  tribunal  which  should  correct  such  misundertanding.  We 
receive  the  construction  given  by  the  courts  of  the  nation  as 
the  true  sense  of  the  law,  and  feel  ourselves  no  more  at  liberty 
to  depart  from  that  construction,  than  to  depart  from  the 
words  of  the  statute.    On  this  principle,  the  construction  given 

Wall.    (73    U.    S.)    611,    18   L.    ed.  Black  (67  U.  S.)  599,  17  L.  ed.  261, 

907.  and   numerous  other  judgments  so 

Federal  Supreme  Court  bound  by  decided   all  concede  this."      Talcott 

decision  of  highest  state  court  that  a  v.  Township  of  Pine  Grove,  1  Flipp. 

state   statute   does   not   violate   any  (U.    S.   C.   C.)    120,    123,    Fed.   Cas. 

provision   of   the   state   constitution  No.  13,735,  per  Emmons,  Cir.  J.,  case 

and  is  valid  so  far  as  that  instrument  aff 'd    Township    of    Pine    Grove    v. 

is  concerned.     Jack  v.  Kansas,   199  Talcott,  19  Wall.  (86  U.  S.)  666,  22 

U.  S.  372,  50  L.  ed.  234,  26  Sup.  Ct.  L.  ed.  227.    The  decision  in  the  Cir- 

73;  People's  National  Bank  v.  Marye,  cuit  Court  in  this  case  specifies  when 

191   U.   S.   272,   24  Sup.   Ct.   68,   48  the  decisions  of  the  state  court  will 

L.  ed.  180;  Carstairs  v.  Cochran,  193  not  be  followed  and  in  the  opinion 

U.  S.  10,  24  Sup.  Ct.  318,  48  L.  ed.  cites    a    series    of    cases    decided    in 

596.  twenty-six  States. 

"  As  a  general  rule,  to  which  there        91  Covington     v.     Kentucky,     173 

are  rare  exceptions,  the  United  States  U.  S.  231,  43  L.  ed.  679,  19  Sup.  Ct, 

courts   will,    in   the   construction   of  383. 

state  statutes  or  constitutions,  follow       92  Smiley  v.  Kansas,  196  U.  S.  447, 

the  decisions  of  the  highest  courts  of  49  L.  ed.  546,  25  Sup.  Ct.  276. 
the  State,  Lefhngwell  v.  Warren,  2 

424 


OR   CONSTRUCTION    OF    STATUTES    CONTINUED         §   273 

by  this  court  to  the  Constitution  and  laws  of  the  United  States 
is  received  by  all  as  the  true  construction;  and  on  the  same 
principle,  the  construction  given  by  the  courts  of  the  several 
States  to  the  legislative  acts  of  those  States,  is  received  as 
true,  unless  they  come  into  conflict  with  the  Constitution, 
laws  or  treaties  of  the  United  States."  93 

§273.  Same  Subject   Continued. — A  suggested  construc- 


93  Elmendorf  v.  Taylor,  10  Wheat. 
(23  U.  S.)  152,  159,  6  L.  ed.  289,  per 
Marshall,  C.  J.,  cited  in  Hartford 
Fire  Ins.  Co.  v.  Chicago,  Milwaukee 
&  St.  Paul  Ry.  Co.,  175  U.  S.  91, 
100,  44  L.  ed.  84,  20  Sup.  Ct.  33  (to 
point  questions  of  public  policy,  as 
affecting  the  liability  for  acts  done, 
or  upon  contracts  made  and  to  be 
performed,  within  one  of  the  States  of 
the  Union — when  not  controlled  by 
the  Constitution,  laws  or  treaties  of 
the  United  States,  or  by  the  princi- 
ples of  the  commercial  or  mercantile 
law  or  of  general  jurisprudence,  of 
national  or  universal  application — are 
governed  by  the  law  of  the  State,  as 
expressed  in  its  own  constitutions 
and  statutes,  or  declared  by  its  high- 
est courts);  quoted  in  Hilton  v. 
Guyot,  159  U.  S.  113,  194,  40  L.  ed. 
95,  16  Sup.  Ct.  139;  cited  to  same 
point  in  McArthur  v.  Scott,  113  U.  S. 
340,  391,  28  L.  ed.  1015,  5  Sup.  Ct. 
652;  cited  and  principle  considered  in 
Burgess  v.  Seligman,  107  U.  S.  20, 
32-34,  2  Sup.  Ct.  10,  27  L.  ed.  359 
(but  court  said  it  did  not  consider 
itself  bound  to  follow  the  decision  of 
the  state  court  in  that  case);  cited  in 
Fairfield  v.  County  of  Gallatin,  100 
l.  S.  47,  52,  25  L.  ed.  544  (rule 
recognized  but  subject  to  "some  ex- 
ceptions"); cited  in  Gelpcke  v.  City 
of  Dubuque,  1  Wall.  (08  U.  S.)  175, 
210,    17   L.   ed.    520,    in    dissenting 


opinion,  per  Miller,  J.  (principle  well 
settled  but  applicability  to  that  case 
considered);  cited  and  explained  in 
Luther  v.  Borden,  7  How.  (48  U.  S.) 
1,  58,  12  L.  ed.  581;  cited  in  Foxcroft 
v.  Mallett,  4  How.  (45  U.  S.)  353,  11 
L.  ed.  1008  (but  held  not  applicable); 
cited  in  Beals  v.  Hale,  4  How.  (45 
U.  S.)  37,  54,  11  L.  ed.  865  (principle 
controlling,  but  judgment  in  this  case 
not  by  highest  state  court);  quoted  in 
part  and  followed  in  Zeiger  v.  Penn- 
sylvania R.  Co.,  158  Fed.  809,  811; 
quoted  in  part  in  Kessler  v.  Arm- 
strong Cork  Co.,  158  Fed.  744,  753, 
per  Noyes,  Cir.  J.,  in  dissenting  opin- 
ion; explained  and  followed,  with 
qualifications,  in  same  case,  Id.,  750; 
quoted  in  part  and  followed  in  York 
v.  Washburn,  129  Fed.  564,  567 
("it  is  a  cardinal  rule");  cited  in 
Parker  v.  Moore,  115  Fed.  799,  802 
(to  point  that  contracts  valid  in 
State  or  country  where  made  will  be 
enforced  in  another  State  except 
where  contrary  to  good  morals,  etc.); 
cited  and  followed  in  Thompson  v. 
M'Connell,  107  Fed.  33,  36  (such 
decisions  are  binding);  cited  and  fol- 
lowed in  Louisville  &  Nashville  Rd. 
Co.  v.  Lansford,  102  Fed.  62,  66 
(binding  on  courts  of  United  States, 
as  a  rule  of  decision);  cited  and  fol- 
lowed in  Williams  v.  Gold  Hill  Min. 
Co.,  96  Fed.  454,  465. 

425 


§  273  CONSTITUTIONAL   LAW — INTERPRETATION 

tion  of  a  state  statute  which  would  lead  to  a  manifest  absurdity 
and  which  has  not,  and  is  not  likely  to  receive  judicial  sanc- 
tion, will  not  be  accepted  by  the  United  States  Supreme  Court 
as  the  basis  of  declaring  the  statute  unconstitutional  when 
the  courts  of  the  State  have  given  it  a  construction  which  is 
the  only  one  consistent  with  its  purposes  and  under  which  it  is 
constitutional.94  And  in  the  case  of  an  appeal  from  the  judg- 
ment of  the  Supreme  Court  of  a  Territory,  which  was  admitted 
as  a  State  after  the  appeal  was  taken,  a  subsequent  judgment 
of  the  highest  court  of  the  State  upon  the  construction  of  a 
territorial  law  involved  in  the  appeal  is  entitled  to  be  followed 
by  the  Federal  Supreme  Court,  in  preference  to  its  construction 
by  the  Supreme  Court  of  the  Territory.95  While  the  Supreme 
Court  of  the  United  States  does  not  take  judicial  notice  of  the 
decisions  of  the  courts  of  one  State  in  a  case  coming  from  the 
courts  of  another  State,  it  may  properly  refer  to  the  opinion 
of  the  highest  court  of  a  State  as  to  the  construction  of  a  stat- 
ute of  that  State,  when  such  statute  is  involved  in  the  case 
before  the  Federal  court;  and  this  applies  to  a  decision  ren- 
dered after  the  judgment  appealed  from  was  rendered.96  If 
the  courts  of  one  State  fully  consider  the  statute  of  another 
State  and  the  decisions  of  the  courts  of  that  State  construing 
it,  and  the  case  turns  upon  the  construction  of  the  statute 
and  not  upon  its  validity,  due  faith  and  credit  is  not  denied  by 
one  State  to  the  statute  of  another  State,  and  the  manner  in 
which  the  statute  is  construed  is  not  necessarily  a  Federal 
question.97  Again,  although  the  state  court  may  refer  to  and 
uphold  a  statute,  the  constitutionality  of  which  is  attacked, 
if  it  does  so  after  stating  the  rule  at  common  law  and  that  the 
statute  is  merely  declaratory  thereof  the  judgment  is  based  on 
the  common-law  rule  and  no  Federal  question  exists  that  the 

94  Adams  v.  New  York,  192  U.  S.  the  highest  courts  of  two  States  of  a 
585,  48  L.  ed.  575,  24  Sup.  Ct.  372.  statute  of  one  of  the  States  held  to 

95  Stutsman  County  v.  Wallace,  commend  itself  to  the  Federal  court 
142  U.  S.  293.  as  a  correct  construction). 

96  Eastern  Bldg.  &  Loan  Assn.  v.  97  Johnson  v.  New  York  Life  Ins. 
Williamson,  189  U.  S.  122,  47  L.  ed.  Co.,  187  U.  S.  491,  47  L.  ed.  273,  23 
735,  23  Sup.  Ct.  527  (construction  by  Sup.  Ct.  194. 

426 


OR   CONSTRUCTION    OF    STATUTES    CONTINUED         §   274 

Federal  court  can  review.98  So  the  limit  of  interference  by  the 
Federal  Supreme  Court  with  the  judgments  of  state  courts 
is  reached  when  it  appears  that  no  fundamental  rights  have 
been  disregarded  by  the  state  tribunals."  And  whether  the 
proceedings  in  the  enactment  of  a  state  statute  conform  with 
the  state  constitution  is  to  be  determined  by  the  state  court, 
and  its  judgment  is  final.1 

§  274.  Same  Subject  Continued — Exceptions  to  or  Quali- 
fications of  Rule. — The  general  rule  that  the  construction  or 
interpretation  given  by  the  highest  state  courts  to  state  laws 
and  constitutions  is  binding  and  conclusive  on  the  Federal 
courts  is  not  applicable  where  they  conflict  with  or  impair 
some  principle  of  the  Federal  Constitution,  or  of  a  Federal 
statute,  or  a  rule  of  commercial  or  general  law,  or  the  treaties 
of  the  United  States.2  Nor  does  the  rule  extend  to  cases  in 
which  the  Federal  Supreme  Court  is  called  on  to  interpret 
the  contracts  of  States,  though  they  have  been  made  in  the 
form  of  laws  or  by  functionaries  of  the  State  in  pursuance  of 
state  laws.  Fidelity  to  the  Constitution  of  the  United  States 
makes  it  necessary,  that  in  such  a  matter  that  court  should 
not  follow  the  construction  of  a  state  court  with  whose  opinion 
it  cannot  concur,  and  it  makes  no  difference  in  the  obligation 
whether  the  contract  is  in  the  shape  of  a  law  or  a  covenant  by 
the  State's  agents.3  So  where  the  decisions  of  the  highest  court 
of  a  State  show  that  it  regarded  the  construction  and  appli- 
cation of  a  statute  as  open  for  review  if  another  case  arose, 
its  prior  determination  of  the  questions  does  not  necessarily 

"Arkansas   Southern    Ry.    Co.    v.  2  Norton    v.    Shelby   County,    118 

German    National  Bank,   207   U.   S.  U.  S.  425,  30  L.  ed.  178,  6  Sup.  Ct. 

270,271.  1121;      Elemendorf     v.    Taylor,     10 

"Backus  v.  Fort  St.  Union  Depot  Wheat.  (23  U.  S.)  152,  159,  6  L.  ed. 

Co.,  109  U.  S.  557,  42  L.  ed.  853,  18  289. 

Sup.  Ct.    11"».  3  Jefferson  Bank  v.  Skelly,  1  Black 

'  Smith  v.  Jennings,  206  U.  S.  270,  (66  U.  S.),  43(5,  17  L.  ed.  173  (fran- 

29    Sup.  Ct.  — ,  51    L.  ed.  — .      See  chise    grants;    construction;    waiver 

also    Wilkes    County    v.    Coler,     180  of    sovereignty;    bank    charters;    tax 

U.  S.  506,  21  Sup.  Ct.  458,  45  L.  ed.  exempt  ion     irrevocable;    subsequent 

642.  I  it  nt  ional  provision). 

427 


§   275  CONSTITUTIONAL    LAW — INTERPRETATION 

have  to  be  adopted  and  applied  by  the  Federal  courts  in  cases 
where  the  cause  of  action  arose  prior  to  any  of  the  adjudica- 
tions by  the  state  court.4  And  where  the  law  has  not  been 
definitely  settled,  it  is  the  right  and  duty  of  the  Federal  courts 
to  exercise  their  own  judgments.5 

§275.  Same    Subject    Continued — Instances— Incorpora- 
tion Acts— Eminent   Domain— Corporate   Powers.— Where 

the  constitution  of  a  State  prohibits  the  legislature  from 
"passing  any  act  of  incorporation  unless  with  the  assent  of 
at  least  two-thirds  of  each  house,"  the  judgment  of  the  legis- 
lature is  required  to  be  exercised  upon  the  propriety  of  creat- 
ing each  particular  corporation,  and  two-thirds  of  each  house 
must  sanction  and  approve  each  individual  charter;  and  the 
Supreme  Court  of  the  State  having  so  construed  its  constitu- 
tion such  construction  will  be  adopted  by  the  Federal  Supreme 
Court.6  And  whether  the  statutes  of  a  State  authorize  the 
incorporation  of  a  bridge  company  to  construct  a  bridge  over 
a  navigable  river  separating  it  from  another  State;  whether 
such  statutes  confer  the  right  of  eminent  domain  on  a  corpo- 
ration of  another  State,  and  whether  such  corporation  can 
exercise  therein  powers  other  than  those  conferred  by  the 
State  of  its  creation,  are  all  questions  of  state  law,  involving 
no  Federal  questions,  and  the  rulings  of  the  highest  court  of 
the  State  are  final  and  conclusive  upon  the  Supreme  Court  of 
the  United  States.7  So  the  Federal  courts  will  follow  the  con- 
struction of  the  highest  court  of  a  State  that  its  statute  is 
constitutional;  and  there  is  nothing  in  the  Fourteenth  Amend- 
ment which  prevents  a  State  in  carrying  out  its  declared  pub- 

4  Brunswick  Terminal  Co.  v.  Na-  6  Nesrnith  v.  Sheldon,  7  How.  (48 
tional  Bank  of  Baltimore,  192  U.  S.  U.  S.)  812,  12  L.  ed.  925.  See  Wilkes 
386,  48  L.  ed.  491,  24  Sup.  Ct.  —  (lia-  County  v.  Coler,  180  U.  S.  506,  45  L. 
bility  of   stockholders;   construction  ed.  642,  21  Sup.  Ct.  458. 

of  statute;  banks;  transfer  of  stock).  7  Stone     v.     Southern     Illinois     & 

5  Stanley  County  v.  Coler,  190  Missouri  Bridge  Co.,  206  U.  S.  267, 
U.  S.  437,  23  Sup.  Ct.  811,  47  L.  ed.  27  Sup.  Ct.  —  51  L.  ed.  — ,  aff'g 
1126  (counties;  bonds  in  aid  of  rail-  194  Mo.  175. 

roads;  validity). 

428 


OR    CONSTRUCTION    OF    STATUTES    CONTINUED  §   276 

lie  policy  from  requiring  individuals  to  make  to  each  other, 
on  due  compensation,  such  concessions  as  the  public  welfare 
demands;  and  a  state  statute  providing  that  eminent  domain 
may  be  exercised  for  railways  and  other  means  to  facilitate 
the  working  of  mines  is  not  unconstitutional.8  And,  gen- 
erally, the  settled  rule  of  the  Federal  Supreme  Court  in  cases 
for  the  determination  of  the  amount  of  damages  to  be  paid 
for  private  property  condemned  and  taken  for  public  use,  is 
that  it  accepts  the  construction  placed  by  the  Supreme  Court 
of  the  State  upon  its  own  constitution  and  statutes.9  But 
the  Federal  Supreme  Court  has  no  jurisdiction  under  the 
twenty-fifth  section  of  the  Judiciary  Act  of  1789  whether 
or  not  a  law  of  a  State  is  in  opposition  to  the  constitution  of 
that  State.  Therefore,  where  it  is  alleged  that  the  constitu- 
tion of  a  State  declares  that  private  property  shall  not  be 
taken,  and  that  the  highest  court  of  the  State  has  sustained 
the  validity  of  a  law  which  violates  this  constitutional  pro- 
vision, that  court  has  no  power  to  review  that  decision.10 

§  276.  Same  Subject  —  Instances  Continued  —  Common 
Carriers  —  Railroads.  —  When  the  highest  court  of  a  State 
holds  that  a  statute  fixing  the  liability  of  common  carriers 
applies  to  shipments  made  to  points  without  the  State,  the 
Federal  Supreme  Court  must  accept  that  construction  of  the 
statute.11  So  all  questions  arising  under  the  constitution  and 
laws  of  a  State  are  foreclosed  by  the  decisions  of  the  state 
courts  for  the  purposes  of  a  cause  concerning  the  duties  of 
receivers  of  railroads,  the  right  of  a  municipality  to  regulate 
the  speed  of  railroad  trains  within  its  limits,  and  to  make 
exceptions  in  relation  thereto,  even  though  such  trains  are 
interstate  trains,  in  the  absence  of  congressional  action  on 

"Strickley  v.  Highland  Boy  Gold  Co.,  169  U.  S.  557,  42  L.  cd.  853,  18 

Mining  Co.,  200  U.  S.  527,  50  L.  ed.  Sup.  Ct.  445. 

581,  26  Sup.  Ct.  301,  following  Clark  I0  Withers   v.    Buckley,    20    How. 

v.  Nash,  198  U.  S.  361,  25  Sup.  Ct.  (61  U.  S.)  84,  15  L.  ed.  816. 

676,  49  L.  ed.  1085.  "Central  of  Georgia  Ry.  Co.   v. 

•  Backus  v.  Fort  St.  Union  Depot  Murphey,  196  U.  S.  194,  49  L.  ed. 

444,  25  Sup.  Ct.  218. 

429 


§   276  CONSTITUTIONAL   LAW — INTERPRETATION 

the  subject.1^  So  a  state  statute,13  providing  that  the  liability 
of  railroad  companies  for  damages  to  employees  shall  not  be 
diminished  by  reason  of  the  accident  occurring  through  the 
negligence  of  fellow  servants,  and  excepting  from  its  provisions 
damages  sustained  by  employees  engaged  in  construction  of 
new  and  unopened  railroads,  does  not,  as  interpreted  by  the 
highest  court  of  the  State  enacting  such  law,  discriminate 
against  any  class  of  railroads  or  deny  to  such  class  the  equal 
protection  of  the  laws;  the  exception  merely  marks  the  time 
when  the  statute  takes  effect.  There  is  no  objection  under 
the  Fourteenth  Amendment  to  legislation  confined  to  a  pe- 
culiar and  well-defined  class  of  perils,  and  it  is  not  necessary 
that  they  are  shared  by  the  public  if  they  concern  the  body 
of  citizens  engaged  in  a  particular  work;  and  freedom  of  con- 
tract may  be  limited  by  a  state  statute  where  there  are  visible 
reasons  of  public  policy  for  the  limitation.14  So  the  rule  ap- 
plies, and  the  United  States  Supreme  Court  must  accept  the 
meaning  of  state  enactments  to  be  that  found  in  them  by  the 
state  courts,  and  although  the  question  of  the  validity  of  the 
constitution  and  laws  of  a  State  under  which  the  proceedings 
were  had  is  properly  before  the  Federal  court,  still  the  con- 
sideration of  that  court  must  be  restricted  to  its  Federal  aspect, 
as  in  the  case  of  common  carriers,  and  the  regulation  of  rates 
where  a  railroad  corporation  voluntary  formed  but  not  pro- 
tected by  a  valid  contract,  cannot  successfully  invoke  the  in- 
terposition of  the  Federal  court  in  respect  to  long  and  short 
haul  clauses  in  a  state  constitution,  simply  on  the  ground  that 
the  railroad  is  property.15  But  in  case  a  railroad  company 
has  fulfilled  certain  conditions  upon  which  a  grant  of  unsettled 
public  lands  was  agreed  to  be  made,  under  a  contract  with  a 
county,  and  has,  therefore,  become  entitled  to  a  conveyance 
of  the  lands,  then,  in  so  far  as  the  state  court  may  be  regarded 

12  Erb  v.  Marsh,  177  U.  S.  584,  44  199  U.  S.  593,  26  Sup.  Ct.  159,  50  L. 
L.  ed.  897,  20  Sup.  Ct.  819.  ed.  322. 

13  Minn.  G.  S.,  1894,  §  2701.  15  Louisville  &  N.  R.  Co.  v.  Ken- 

14  Minnesota    Iron    Co.    v.    Kline,  tucky,  183  U.  S.  503,  22  Sup.  Ct.  95, 

46  L.  ed.  298. 

430 


OR   CONSTRUCTION    OF   STATUTES    CONTINUED         §   276 

as  having  held  to  the  contrary,  the  courts  of  the  United  States 
are  not  bound  to  follow  its  decision  as  applied  to  a  corporation 
created  by  an  act  of  Congress,  for  national  purposes,  and  for 
interstate  commerce.16  And  where  the  state  court  has  sus- 
tained a  result  which  cannot  be  reached  except  on  what  the 
Federal  Supreme  Court  deems  a  wrong  construction  of  the 
charter  without  relying  on  unconstitutional  legislation,  that 
court  cannot  decline  jurisdiction  on  writ  of  error  because  the 
state  court  apparently  relied  more  on  the  untenable  con- 
struction than  on  the  unconstitutional  statute.17  So  the  Fed- 
eral Supreme  Court  has  jurisdiction  over  a  decision  of  a  state 
court  that  a  statute  of  the  State,  compelling  the  removal  of 
grade  crossings  on  a  railroad,  is  constitutional,  and  a  judg- 
ment in  accordance  therewith  enforcing  the  provisions  of  the 
statute.18  Again,  under  the  exception,  above  noted,  that 
where  the  law  has  not  been  definitely  settled  in  a  State  it  is 
the  right  and  duty  of  Federal  courts  to  exercise  their  own 
judgment,  county  bonds  issued  under  state  statutes  and  sec- 
tions of  its  code  which  permit  bonds  to  be  issued  to  aid  in  the 
completion  of  any  railroad  in  which  citizens  of  the  county 
have  an  interest,  are  valid  notwithstanding  the  Supreme  Court 
of  the  State  had  decided  in  another  action  that  such  bonds  were 
invalid.19  But  in  Fairfield  v.  County  of  Gallatin,20  the  court 
accepted  as  binding  the  decision  of  the  Supreme  Court  of 
Illinois  21  and  subsequent  cases,  construing  a  section  of  the 
constitution  of  that  State,22  which  provided  that  "no  county, 
city,  town,  township,  or  other  municipality  shall  ever  become 
subscriber  to  the  capital  stock  of  any  railroad  or  private  cor- 
poration, or  make  any  donation  to,  or  loan  its  credit  in  aid  of, 

18  Roberts  v.  Northern  Pacific  R.  18  New  York  &  N.   E.   R.  Co.   v. 

Co.,  158  U.  S.  1,  39  L.  ed.  873,  15  Sup.  Bristol,  151  U.  S.  556,  38  L.  ed.  269, 

Ct.  750.  14  Sup.  Ct.  437. 

17  Tcrre  Haute  &  Indianapolis  R.  "Stanley  County  v.  Coler,  190  U. 

Co.  v.  Ketcham,  194  U.  S.  579,  48  S.  437,  23  Sup.  Ct.  811,  47  L.  ed.  1 1  26. 

L.  ed.  1 124,  24  Sup.  Ct.  767  (a  case  20  100  U.  S.  47,  25  L.  ed.  544. 

of  railroads;  control  and  regulation  21  Chicago    &    Iowa    Rd.    Co.    v. 

by  a  State;  new  charter;  operation  Pinckney,  74  111.  277. 

and  effect  of).  "  In  force  July  2,  1870. 

431 


§    277  CONSTITUTIONAL    LAW — INTERPRETATION 

such  corporation:  Provided,  however,  that  the  adoption  of  this 
article  shall  not  be  construed  as  affecting  the  right  of  any- 
such  municipality  to  make  such  subscriptions  where  the  same 
have  been  authorized,  under  existing  laws,  by  a  vote  of  the 
people  of  such  municipalities  prior  to  such  adoption,"  and  hold- 
ing that  such  previous  donations,  if  sanctioned  by  a  popular 
vote,  under  pre-existing  laws,  were  not  forbidden,  but  were, 
in  like  manner  as  subscriptions,  excepted  by  the  proviso  from 
the  general  prohibitory  terms  of  the  section. 

§  277.  Same  Subject— Instances  Continued— Revenue- 
Taxation.— Whether  a  statute  of  a  State  is  or  is  not  a  revenue 
measure  and  how  rights  thereunder  are  affected  by  a  repealing 
statute  depends  upon  the  construction  of  the  statutes,  and 
where  no  Federal  question  exists  the  Federal  Supreme  Court 
will  lean  to  an  agreement  with  the  state  court.23  Nor  will 
that  court  interfere  with  the  conclusion  expressed  by  the 
highest  court  of  a  State  that  under  the  provision  of  the  state 
constitution  a  tax  is  uniform  when  it  is  equal  upon  all  per- 
sons belonging  to  the  described  class  upon  which  it  is  imposed ; 
and  the  decision  of  the  highest  court  of  a  State  that  a  license 
tax  imposed  on  certain  corporations  was  exacted  from  a  for- 
eign corporation  doing  both  interstate  and  domestic  business 
only  by  virtue  of  the  latter,  will  not  be  reviewed  in  the  Fed- 
eral Supreme  Court.24  Nor  will  that  court  review  a  judgment 
of  the  highest  court  of  a  State  refusing  to  restrain  the  collec- 
tion of  a  tax,  the  imposition  of  which  is  not  authorized  by  any 
law  of  such  State.25  So  the  rule,  that  if  the  state  statute  as 
construed  by  its  highest  court  is  valid  under  the  Federal  Con- 
stitution the  Federal  courts  are  bound  by  that  construction, 
has  been  applied  in  a  case  wherein  the  question  of  the  taxa- 
tion of  cars  under  the  New  York  franchise  tax  law,  and  the 

23  Flanigan  v.  Sierra  County,  196  25  Savannah,  T.  &  I.  of  H.  Ry.  v. 
U.  S.  553,  49  L.  ed.  597,  25  Sup.  Ct.  Savannah,  198  U.  S.  392,  49  L.  ed. 
314.  1097,  25  Sup.  Ct.  690. 

24  Armour  Packing  Co.  v.  Lacy,  2e  New  York  Central  &  Hudson 
200  U.  S.  226,  26  Sup.  Ct.  232,  50  L.  River  Rd.  Co.  v.  Miller,  202  U.  S. 
ed.  451.  584,  50  L.  ed.  — ,  26  Sup.  Ct.  — . 

432 


OR    CONSTRUCTION    OF    STATUTES    CONTINUED         §   278 

situs  of  personal  property  was  passed  upon.26  And  in  the 
State  Railroad  Tax  cases,27  the  Supreme  Court  of  the  United 
States  adopted  the  decision  of  the  Supreme  Court  of  the 
State  of  Illinois  which  had  construed  her  statute  and  had  de- 
cided that  the  law  complained  of  in  those  cases  was  valid 
under  her  constitution.  So  the  decision  of  a  state  Supreme 
Court  that  a  statute  in  respect  to  the  taxation  of  national 
banks  does  not  conflict  with  the  constitution  of  such  State  is 
conclusive  upon  the  Federal  Supreme  Court.28  But  where  it 
appears  from  the  agreed  statement  of  facts  in  a  case  that, 
under  the  laws  of  a  State,  as  construed  by  the  highest  court  of 
such  State,  all  the  elements  of  value  which  are  embraced  in 
the  assessment  of  shares  of  stock  in  national  banks  are  not 
included  in  assessing  the  value  of  property  of  state  banks  and 
other  moneyed  corporations,  there  is  discrimination  against 
the  shares  of  national  banks,  and  the  state  law  taxing  such 
shares  as  so  construed  violates  and  is  void  under  that  provision 
of  the  Revised  Statutes  which  authorizes  the  taxation  by  the 
States  of  shares  of  stock  of  national  banks,  but  exacts  that  the 
tax  when  levied  shall  be  at  no  greater  rate  than  that  imposed 
on  other  moneyed  capital.29 

§  278.  Same  Subject— Instances  Continued— Exemptions 
from  Taxation— Impairment  of  Obligation  of  Contract  as 
to  Taxation. — The  construction  by  the  Supreme  Court  of 
a  State  of  its  constitution  as  authorizing  exemptions  from 

27  92  U.  S.  575,  23  L.  ed.  663.  follow  the  ruling  of  the  highest  court 

28  Merchants'  &  Mfrs.  Hank  v.  of  a  State  when  it  was  held  that  a 
Pennsylvania,  167  U.  S.  461,  42  L.  state  statute  does  not  violate  the 
ed.  236,  17  Sup.  Ct.  829.  See  cita-  constitution  of  that  state);  Jefferson 
tions  in  next  following  note.  Bank  v.  Skelly,  1  Black  (66  U.  S.), 

28  San    Francisco    Nat.    Bank    v.  436,  17  L.  ed.  173  (franchise  grants; 

Dodge,   197   U.   S.  70,  49  L.  ed.  — ,  construction;  waiver  of  sovereignty; 

25  Sup.  Ct.  — .      Examine    People's  bank  charters;   tax  exemption  irrev- 

X.it.  Bank  v.  Marye,  191  U.  S.  272,  ocable;      subsequent      constitutional 

24  Sup.  Ct.  68,  48  L.  ed.  180  (a  case  provision;  rule  as  to  following  state 

of  taxation;  bank  stock;  deductions;  construction  not  extended   to  cases 

state  laws.     In  this  case  it  was  held  where  Federal  courts  called  on  to  in- 

that  the  Federal  Supreme  Court  will  terpret  contracts  of  States). 

28  433 


§   278  CONSTITUTIONAL   LAW — INTERPRETATION 

taxation,  but  declaring  that  such  exemptions  are  repealable, 
binds  the  Federal  Supreme  Court,  and  therefore  a  railroad 
company,  incorporated  after  such  decision  of  the  state  court, 
is  precluded  from  claiming  an  irrepealable  exemption  in  its 
charter,  and  being  so  repealable  the  question  whether  it  had  in 
fact  been  repealed  is  a  local  and  not  a  Federal  question.30  So, 
following  the  decisions  of  the  Supreme  Court  of  North  Dakota 
as  to  the  tax  laws  of  Dakota  Territory  the  Supreme  Court  of 
the  United  States  holds  that  an  erroneous  decision  of  an  as- 
sessor of  taxes  under  those  laws  in  the  matter  of  exemptions 
does  not  deprive  the  tax  proceedings  of  jurisdiction,  and,  that 
until  such  erroneous  decision  is  modified  or  set  aside  by  the 
proper  tribunal,  all  officers  with  subsequent  functions  may 
safely  act  thereon;  and  that  the  rule  of  caveat  emptor  applies  to 
a  purchaser  at  a  tax  sale  thereunder.  It  was  also  held  that 
the  county  treasurer  in  making  a  sale  under  those  laws  for  the 
non-payment  of  taxes  acted  ministerially  and  was  protected 
as  long  as  he  acted  within  the  statute.  It  was  further  decided 
that,  in  the  case  of  lands  granted  to  the  Northern  Pacific 
Railroad  Company,  on  which  the  costs  of  survey  had  not  been 
paid  and  for  which  no  patents  had  been  issued,  it  was  his  duty  to 
proceed  to  sell  notwithstanding  those  facts;  and  that  when  the 
title  of  the  purchaser  at  the  tax  sale  failed,  by  reason  of  the 
lands  not  being  subject  to  taxation,  the  county  was  not  liable 
for  the  purchase  money.31  A  State  may,  through  its  legisla- 
ture, make  a  valid  contract  as  to  taxation  with  a  corporation 
which  the  latter  can  enforce;  and  the  Supreme  Court  of  the 

30  Gulf  &  S.  I.  R.  Co.  v.  Hewes,  183  231,  43  L.  ed.  679,  19  Sup.  Ct.  383  (a 

U.  S.  66,  22  Sup.  Ct.  26,  46  L.  ed.  case  of  exemption  of  "  the  said  reser- 

86.  voir  or  reservoirs,  machinery,  pipes, 

The  Supreme  Court  of  the  United  mains  and  appurtenances,  with  the 

States  is  bound  by  the  construction  land  on  which  they  were  situated" 

put  by  the  highest  court  of  the  State  which  the  city  of  Covington  was  by 

of  Kentucky  upon  its  statutes,  re-  that  act  authorized  to  acquire  and 

lating  to  exemptions  from  taxation  construct;  also  a  question  of  repeal, 

of  property   used   for   "public  pur-  of  contract  and  charter  rights), 

poses,"  however  much  it  may  doubt  31  Stutsman    County    v.    Wallace, 

the  soundness  of  the  interpretation.  142  U.  S.  293,  12  Sup.  Ct.  227,  35  L. 

Covington   v.   Kentucky,   173  U.  S.  ed.  1018. 

434 


OR   CONSTRUCTION    OF    STATUTES    CONTINUED         §   279 

United  States  is  not,  under  the  rule  generally  applicable  as  to 
the  binding  effect  of  decisions  of  the  Supreme  Court  of  the 
State  construing  its  statutes,  concluded  by  the  decisions  of 
that  court  as  to  whether  such  a  contract  exists,  the  extent  of 
its  terms  and  whether  any  subsequent  law  has  impaired  its 
obligation.  But  where  the  Supreme  Court  of  the  State  sus- 
tains the  validity  of  the  statute  from  which  a  contract  is  claimed, 
the  Federal  Supreme  Court  follows  that  decision  and  deter- 
mines what  the  contract  is.32  When  a  contract  is  asserted  and 
the  Constitution  of  the  United  States  is  invoked  to  protect  it, 
all  of  the  elements  which  are  claimed  to  constitute  it  are  open 
to  examination  and  review  by  the  Federal  Supreme  Court; 
and  also  all  that  which  is  claimed  to  have  taken  it  away,  and 
the  writ  of  error  will  not  be  dismissed.33 

§  279.  Same  Subject— Instances  Continued— Impairment 
of  Obligation  of  Contract— Fourteenth  Amendment.— While 
the  Federal  Supreme  Court  is  not  bound  by  the  construction 
placed  by  the  state  court  upon  statutes  of  that  State  when 
the  impairment  of  the  contract  clause  of  the  Constitution  is 
invoked,  yet  when  the  true  construction  of  a  particular  statute 
is  not  free  from  doubt  considering  former  legislation  of  the 
State  upon  the  same  subject,  the  Federal  court  has  deter- 
mined that  it  will  best  perform  its  duty  in  such  case  by 
following  the  decisions  of  the  state  court  upon  the  precise 
question,  although  doubts  as  to  its  correctness  may  have  been 
uttered  by  the  same  court  in  some  subsequent  case.34  It  is 
also  decided  that  although  decisions  of  the  highest  court  of  a 
State  are  not  binding  on  the  Federal  Supreme  Court  in  deter- 
mining whether  a  contract  was  made  by  legislative  action 
of  that  State  which  is  entitled  to  protection  under  the  im- 
pairment of  obligation  clause  of  the  Federal  constitution,  it 

32  Powers  v.  Detroit,  Grand  Haven  181  (taxation;  banks;  exemption; 
&  M.  Ry.  Co.,  201  U.  S.  543,  26  Sup.  construction;  license  taxes;  obliga- 
Ct.  566,  50  L.  ed.  860.  tion  of  contracts). 

"Citizens'  Bank  v.  Parker.  192  34  Wagoner  v.  Flack,  188  U.  S. 
U.  S.  73,  48  L.  ed.  346,  24  Sup.  Ct.    595,  47  L.  ed.  609,  23  Sup.  Ct.  345. 

435 


§   279  CONSTITUTIONAL    LAW — INTERPRETATION 

will  consider  decisions  of  that  court  on  the  point  in  question.35 
Again,  it  is  determined  that  the  Federal  court  possesses  para- 
mount authority  when  reviewing  the  final  judgment  of  a 
state  court  upholding  a  state  enactment  alleged  to  be  in  viola- 
tion of  the  contract  clause  of  the  Federal  Constitution,  to  deter- 
mine for  itself  the  existence  or  non-existence  of  the  contract 
set  up,  and  whether  its  obligation  has  been  impaired  by  the 
state  enactment.36  But  no  jurisdiction  exists  in  the  Federal 
Supreme  Court,  under  the  twenty-fifth  section  of  the  Judiciary 
Act,  to  review  a  decision  of  the  highest  court  of  a  State,  main- 
taining the  validity  of  a  law  which  it  has  been  set  up  "impairs 
the  obligation  of  a  contract,"  when  the  law  set  up  as  having 
this  effect  was  in  existence  when  the  alleged  contract  was  made, 
and  the  highest  state  court  has  only  decided  that  there  was  no 
contract  in  the  case.37  A  state  statute  directing  the  state 
treasurer  to  write  certain  bonds  off  the  books  in  his  office  and 
no  longer  to  carry  them  as  a  debt  of  the  State  does  not  impair 
any  existing  obligation  of  the  State  to  pay  the  bonds  nor  affect 
the  remedy  to  recover  upon  them;  and  where  the  state  court 
has  so  construed  the  act,  in  refusing  to  enjoin  the  treasurer  from 
making  the  entries  required  thereby,  at  the  suit  of  one  claiming 
to  own  the  bonds,  no  Federal  right  of  the  plaintiff  is  denied, 
obstructed,  impaired  or  affected  and  the  writ  of  error  will  be 
dismissed.  This  decision  was  rendered  in  a  case  wherein  the 
State  of  South  Carolina  had  issued  bonds  due  in  twenty  years 
in  aid  of  a  railroad  company.  A  state  bank  came  to  be  the 
owner  of  some  of  these  bonds.  Subsequently  the  assets  of  the 
bank,  including  the  bonds,  were  seized  and  carried  away  by 
soldiers  of  the  Federal  army.  Some  of  the  bonds  were  recov- 
ered from  time  to  time  by  the  bank  and  were  paid  or  funded 
by  the  State,  but  some  of  them  remained  outstanding  and 

35  Blair  v.  Chicago,  201  U.  S.  400,  Wall.  (77  U.  S.)  511,  19  L.  ed.  997 
50  L.  ed.  801,  26  Sup.  Ct.  427.  (in  this  case  a  state  constitution  was 

36  New  Orleans  Waterworks  Co.  v.  admitted  to  be  a  "law"  within  the 
Louisiana  Sugar  Ref.  Co.,  125  U.  S.  meaning  of  the  obligation  of  con- 
18,  31  L.  ed.  607,  8  Sup.  Ct.  741.  tracts  clause). 

"Railroad    Co.    v.    McClure,     10 

436 


OR    CONSTRUCTION    OF    STATUTES    CONTINUED  §   230 

nothing  was  known  of  them  when  a  statute  was  enacted  di- 
recting that  no  coupon  bond  of  the  State  payable  to  bearer 
should  be  funded  or  paid  by  the  state  treasurer  after  the  ex- 
piration of  twenty  years  from  the  date  of  its  maturity,  and 
the  receiver  of  the  bank,  which  had  been  in  liquidation  for 
many  years,  brought  in  the  state  Supreme  Court  a  petition 
for  an  injunction  to  restrain  the  treasurer  from  obeying  the 
requirement  of  the  statute.38  Where  the  allowance  of  an  at- 
torney's fee  to  be  taxed  as  costs  in  case  of  a  judgment  against 
an  insurance  company  for  a  total  loss  under  the  provisions  of 
a  state  statute  is  the  basis  of  the  Federal  right  asserted,  and  it 
appears  that  one  of  the  assignments  of  error  relied  upon  be- 
fore, and  considered  and  expressly  decided  by,  the  highest 
court  of  the  State,  was  that  the  statute  was  unconstitutional 
and  void  and  in  conflict  with  the  Fourteenth  Amendment 
for  the  want  of  mutuality  and  deprived  the  plaintiff  in  error 
of  the  equal  protection  of  the  law,  the  motion  to  be  dismissed 
will  be  denied.39 

§  280.  Same  Subject  —  Instances  Continued  —  Statutes 
Penal  in  Nature —Trustees  of  Corporations— Anti-Trust 
Laws.— The  rulings  of  the  highest  court  of  a  State,  unani- 
mously made,  upon  a  question  dependent  altogether  upon 
a  statute  of  that  State,  relating  to  acts  of  a  trustee  of  a  cor- 
poration and  liability  thereunder,  penal  in  its  character,  ought 
to  be  recognized  in  every  court  as,  at  least,  most  persuasive, 
although  the  case  in  which  the  ruling  was  made  has  not  yet 
gone  to  final  judgment.40  So  the  Federal  Supreme  Court  will 
follow  a  state  court  in  holding  that  under  the  laws  of  such 
State,  as  they  exist,  combinations  described  in  the  anti-trust 
laws  are  forbidden  and  penalized,  whether  by  agriculturists, 
organized  laborers  or  others,  and,  therefore,  there  is  no  dis- 

»  Smith  v.  Jennings,  20G  U.  S.  86  N.  W.  1070.  See  Cleveland  C.  C. 
276,    51    L.  ed.       ,    '-'7    Sup.  Ct.  — .    &  St.  L.  Ry.  Co.  v.  Hamilton,  200  111. 

30  Fanners'  &  Merchants'  Ins.  Co.    633,  66  N.  E.  389. 
v.  Dobney,  1 89  U.S.  301 ,  23  Sup.  Ct,        40  Park  Bank  v.  Remsen,  158  U.  S. 
565,  17  L.  ed.  821,  aff'g  62  Neb.  213,    337,  29  L.  ed.  1008,  15  Sup.  Ct.  891. 

437 


§§    281,    2S2      CONSTITUTIONAL    LAW — INTERPRETATION 

crimination  against  oil  companies,  and  the  latter  are  not  de- 
prived of  the  equal  protection  of  the  laws.41  Again,  where  the 
highest  court  of  a  State  has  held  that  the  acts  of  a  person 
convicted  of  violating  a  state  statute  defining  and  prohibiting 
trusts  were  clearly  within  both  the  statute  and  the  police 
power  of  the  State,  and  that  the  statute  can  be  sustained  as  a 
prohibition  of  these  acts  irrespective  of  the  question  whether 
its  language  was  broad  enough  to  include  acts  beyond  legis- 
lative control,  the  Federal  Supreme  Court  will  accept  such 
construction  although  the  state  court  may  have  ascertained 
the  meaning,  scope  and  validity  of  the  statute  by  pursuing  a 
rule  of  construction  different  from  that  recognized  by  the 
Federal  Court.42 

§  281 .  Same  Subject  —  Instances  Continued  —  Foreign 
Corporations. — Where  the  Supreme  Court  of  a  State  has 
construed  its  constitution  and  statutes  to  the  effect  that  a 
foreign  corporation  had  no  existence  as  a  corporation  in  the 
State,  and  could  acquire,  therefore,  no  rights  as  such,  and 
that  an  individual  connected  with  the  corporation  had  no  in- 
dependent rights  in  the  premises,  these  conclusions  do  not 
involve  the  decision  of  Federal  questions,  but  only  the  mean- 
ing and  effect  of  local  statutes  and  a  finding  of  fact,  neither 
of  which  is  reviewable  in  the  Federal  Supreme  Court.43 

§282.  Repeal  or  Amendment  of  Statutes. — Repeals  by 
implication  are  not  favored  and  will  not  be  admitted  unless 
there  is  such  a  repugnancy  as  to  preclude  the  statutes  being 
reconciled.44  Implied  repeals  are  not  limited  to  police  reg- 
ulations, but  the  rule  has  been  applied  to  all  classes  of  legisla- 

41  National  Cotton  Oil  Co.  v.  Texas,  205  U.  S.  275,  51   L.  ed.  — ,  27  Sup. 
197  U.  S.  115,  25  Sup.  Ct.  379,  49  L.  Ct.  — ,  aff'g  140  Mich.  344,  N.  W. 
ed.  689.  "United    States:     Petri    v.    F. 

42  Smiley  v.  Kansas,  196  U.  S.  447,  E.  Creehman  Lumber  Co.,  199  U.  S. 
49  L.  ed.  546,  25  Sup.  Ct.  276.  487,  50  L.  ed.  281,  26  Sup.  Ct.  133; 

43Telluride    Power   Trans.    Co.    v.  Gibson  v.  United  States,   194  U.  S. 

Rio  Grande  Western  Ry.  Co.,  187  U.  182,  48  L.  ed.  926,  24  Sup.  Ct.  613; 

S.  569,  23  Sup.  Ct.  178,  47  L.  ed.  307.  Tracy  v.  Tuffly,   134  U.  S.  206,  33 

See  Swing  v.  Western  Lumber  Co.,  L.  ed.  879,   10  Sup.  Ct.  527;  Chew 

438 


OR    CONSTRUCTION    OF    STATUTES    CONTINUED  §   282 

tion.45  And  if  laws  are  repealed  by  necessary  implication 
they  need  not  be  referred  to  in  a  statute.45  Nor  is  a  recital  in 
a  statute,  that  a  prior  act  is  repealed  or  superseded,  conclu- 
sive, as  the  question  whether  an  act  has  been  so  repealed  or 
superseded  is  a  judicial  and  not  a  legislative  one.47  Statutes 
which  impliedly  repeal  are  not  within  a  constitutional  pro- 


Heong  v.  United  States,  112  U.  S. 
536,  5  Sup.  Ct.  255,  28  L.  ed.  770; 
Arthur  v.  Homer,  96  U.  S.  137,  24  L. 
ed.  811;  Furman  v.  Nichol,  8  Wall. 
(75  U.  S.)  44,  19  L.  ed.  370;  Beals  v. 
Hale,  4  How.  (45  U.  S.)  37,  11  L.  ed. 
865. 

Arkansas:  Chamberlain  v.  State, 
50  Ark.  132,  6  S.  W.  524. 

California:  Cerf  v.  Reichert,  73 
Cal.  360,  15  Pac.  10.  See  Hell- 
man  v.  Shoulters,  114  Cal.  136,  141, 
44  Pac.  915,  1057. 

Colorado:  Saguache  County  v. 
Decker,  10  Colo.  149,  14  Pac.  123. 

Georgia:  First  M.  E.  Church  v. 
Atlanta,  76  Ga.  181. 

Illinois:  Kenaga  v.  Kerr,  123  111. 
659,  14  N.  E.  671;  Hunt  v.  Chicago, 
H.  &  D.  R.  Co.,  121  111.  638,  13  N.  E. 
176. 

Indiana:  Shea  v.  Muncie,  148 
Ind.  14,  46  N.  E.  138;  Robinson  v. 
Rippey,  111  Ind.  112,  12  N.  E.  141; 
Collins  Coal  Co.  v.  Hadley  (Ind. 
App.,  1906),  78  N.  E.  353,  75  N.  E. 
382. 

Iowa:  Eckerson  v.  City  of  Des 
Moines  (Iowa,  1908),  115  N.  W.  177, 
191;  Snell  v.  Dubuque  &  S.  C.  R.  Co., 
78  Iowa,  88,  42  N.  W.  588. 

Michigan:  Michigan  Teleph.  Co. 
v.  City  of  Benton  Harbor,  121 
Mich.  512,  SO  N.  W.  386;  People  v. 
Hanrahan,  7.".  Mich,  nil,  42  N.  W. 
1124,  4  L.  R.  A.  751,  6  Rd.  &  Corp. 
L.  J.  192,  40  Alh.  L.  J.  210;  People  v. 
Grand  Rapids  -V  W.  PL  Road  Co., 
07  Mich.  5,  34  N.  W.  250. 


Mississippi:  Owens  v.  Yazoo  & 
Miss.  Valley  R.  Co.,  74  Miss.  821,  21 
So.  244. 

Missouri:  Manker  v.  Faulhaber, 
94  Mo.  430,  6  S.  W.  372. 

Nebraska:  Dawson  County  v. 
Clark,  58  Neb.  756,  79  N.  W.  822; 
See  Omaha  Real  Estate  &  T.  Co.  v. 
Kragscow,  47  Neb.  592,  66  N.  W. 
658. 

New  Jersey:  Hotel  Registry  Re- 
alty Corp.  v.  Stafford,  70  N.  J.  L. 
528,  57  Atl.  145;  Plum  v.  Lugar,  49 
N.  J.  L.  557,  9  Atl.  779;  Atlantic 
City  Waterworks  Co.  v.  Consumers' 
Water  Co.,  44  N.  J.  Eq.  427,  15  Atl. 
581. 

North  Carolina:  State  v.  Sutton, 
100  N.  C.  474,  6  S.  E.  687. 

South  Carolina:  State  v.  Mc- 
Coomer  (S.  C,  1908),  60  S.  E.  237. 

Tennessee:  Memphis  &  State  Line 
Rd.  Co.  v.  Union  Ry.  Co.,  116Tenn. 
500,  95  S.  W.  1019;  McCampbell  v. 
State,  116  Tenn.  98,  93  S.  W. 
100. 

Vermont:  State  v.  Martin,  68  Vt. 
93,  34  Atl.  40. 

Virginia:  Justice  v.  Common- 
wealth, 81  Va.  209. 

Wisconsin:  Hay  v.  City  of  Bara- 
boo,  127  Wis.  1,  105  N.  W.  654. 

45  Memphis  &  State  Line  Rd.  Co. 
v.  Union  Ry.  Co.,  116  Tenn.  500,  95 
S.  W.  1019. 

<e  Henley  v.  State,  98  Tenn.  665, 
41  S.  W.  352,  1104,  39  L.  R.  A.  126. 

«  United  States  v.  Claflin,  97  U.  S. 
546,  24  L.  ed.  1082. 

439 


§    282  CONSTITUTIONAL    LAW — INTERPRETATION 

vision  requiring  amending  or  repealing  acts  to  recite  in  their 
title  the  substance  of  the  law  repealed  etc.48  If  it  is  intended 
to  amend  a  certain  section  of  a  statute  it  should  be  repealed 
to  validate  the  amendment.49  And  an  unconstitutional  re- 
pealing statute  can  have  no  effect.50  That  the  intent  to  repeal 
by  implication  did  not  exist  may  be  evidenced  by  a  still  later 
amendment  to  the  first  act.51  If  a  later  statute  has  reference 
to  the  building  of  branch  lines  and  an  earlier  enactment  pro- 
vides for  the  changing  of  the  terminus  of  a  railroad  which  has 
not  been  finally  located  there  exists  no  such  repugnancy  be- 
tween the  two  enactments  as  to  work  an  implied  repeal.52  So 
an  enactment  providing  for  the  liability  of  directors  for  debts 
for  failing  to  make  annual  reports  as  to  financial  condition  of 
a  corporation  is  not  repealed  by  an  amendment  permitting  re- 
ports to  be  filed  at  a  time  specified  in  the  amended  act  or  dur- 
ing the  next  month.53  But  a  proviso  to  an  existing  act  is  held 
to  have  been  repealed  by  an  act  which  "amended"  the  former 
act,  "by  striking  out  all  after  the  enacting  clause  and  inserting 
in  lieu  thereof,  the  following: "  this  "following"  being  in  part 
an  iteration  of  the  words  of  the  section  amended,  and  in  part 
new  enactments.54  And  a  proviso  repealed  may  still  be  con- 
sidered in  construing  remaining  sections.55     Provisions  of  a 

48  Memphis  &  State  Line  Rd.  Co.    American  School  Furn.  Co.,  31  Ind. 
v.  Union  Ry.  Co.,  116  Tenn.  500,  95    App.  405,  68  N.  E.  301. 

S.  W.  1019.     Examine  St.  Louis,  I.  "Memphis  &  State  Line  Rd.  Co. 

M.  &  S.  R.  Co.  v.  Paul,  64  Ark.  83,  40  v.  Union  Ry.  Co.,  116  Tenn.  500,  95 

S.  W.  705,  37  L.  R.  A.  504,  7  Am.  &  S.  W.  1019. 

Eng.  Corp.  Cas.  (N.  S.)  772;  Parker-  53  Bank  of  Saginaw  v.  Peirson,  112 

Washington    Co.     v.     Kansas    City  Mich.    410,    4  Det.  Leg.    N.    59,   70 

(Kan.,  1906),  85  Pac.  781;  Palatine  N.  W.  701.       Examine  Van  Pelt  v. 

Ins.  Co..  Ltd.,  v.  Northern  Pac.  Ry.  Gardner,  54  Neb.  701,  75  N.  W.  874, 

Co.    (Mont.,    1906),    85    Pac.    1032;  74  N.  W.  1083. 

State,   City    Water  Co.,  v.  Kearney,  54  Steamboat  Co.   v.   Collector,   18 

49  Neb.  325,  68  N.  W.  533,  aff' d  49  Wall.  (85  U.  S.)  478,  21  L.  ed.  769  (a 

Neb.  337,  70  N.  W.  255.  case  of  statute  in  relation  to  tax  on 

49  Grand  Island  &  W.  C.  R.  Co.  v.  steamboat  receipts). 

Swinbank,  51  Neb.  521,  71  N.  W.  48.  55  Bank  for  Savings  v.   Collector, 

"Porter  v.   Kingfisher  County,   6  3  Wall.  (70  U.  S.)  495,  18  L.  ed.  207 

Okla.  550,  51  Pac.  741.  (a  case  of  taxation  of  banks). 
51  Lincoln     School     Township     v. 

440 


OR    CONSTRUCTION    OF    STATUTES    CONTINUED  §    283 

statute  repealed  and  re-enacted  continue  in  force  without  in- 
termission.56 The  statutory  construction  law  of  New  York 
limiting  the  effect  of  repealing  statutes  is  not  limited  to  acts 
reported  by  the  statutory  revision  committee,  but  applies  to 
all  subsequent  legislation.57 

§  283.  Same  Subject  Continued. —  If  two  acts  cannot  be 
harmonized  the  later  act  prevails  to  the  extent  of  the  repug- 
nancy; they  should,  however,  be  reconciled  if  possible  on  any 
reasonable  basis,58  or  effect  be  given  to  both.59  Without  ex- 
press words  of  repeal  a  previous  statute  will  also  be  held  modi- 
fied or  repealed  by  a  subsequent  one  if  the  later  is  plainly  in- 
tended to  supersede  the  earlier  act  and  to  cover  the  whole 
subject  embraced  by  both,  and  to  prescribe  the  only  rules,  in 

56  Gull  River  Lumber  Co  v.  Lee,  Indiana:  State,  Hudspeth,  v. 
7  N.  Dak.  135,  73  N.  W.  430.  See  also  Cooper,  114  Ind.  1,  16  N.  E.  518; 
Steamship  Co.  v.  Joliffe,  2  Wall.  (69  Pennsylvania  Co.  v.  Dunlap,  112  Ind. 
U.  S.)  450,  17  L.  ed.  805.  93,  13  N.  E.  403. 

57  Village  of  Champlain  v.  McCrea,  Iowa:  Straight  v.  Crawford,  73 
165  N.  Y.  264;  People,  City  of  Niagara  Iowa,  676,  35  N.  W.  920. 

Falls,  v.  New  York  Cent.  &   Hudson  Kentucky:   Weddell   v.  Common- 

Riv.  R.  Co.,  158  N.  Y.  410;  People,  wealth,  84  Ky.  276,  1  S.  W.  480. 

City  of  Buffalo,  v.  New  York  Cent.  &  New  Jersey:   Plum  v.  Lugar,   49 

Hudson  Riv.  R.  Co.,  156  N.  Y.  570,  N.  J.  557,  9  Atl.  779. 

51   N.  E.  312,  rev'g  50  N.  Y.  Supp.  Tennessee:   McCampbell  v.  State, 

1132,  25  App.  Div.  632.  116  Tenn.  98,  93  S.  W.  100. 

58  United  States:  Gibson  v.  "Where  two  statutes  cover,  in 
United  States,  194  U.  S.  182,  48  L.  whole  or  in  part,  the  same  matter, 
ed.  926,  24  Sup.  Ct.  613;  United  and  are  not  absolutely  irreconcilable, 
States  v.  Lee  Yen  Tai,  185  U.  S.  213,  and  no  purpose  to  repeal  the  earlier 
22  Sup.  Ct.  629,  46  L.  ed.  878;  is  expressed  or  clearly  indicated,  the 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Uni-  court  will,  if  possible,  give  effect  to 
ted  States,  127  U.  S.  406,  8  Sup.  Ct.  both.  Frost  v.  Wenie,  157  U.  S.  46, 
1194,  32  L.  ed.  180;  Beals  v.  Hale,  4  39  L.  ed.  614,  15  Sup.  Ct.  532.    ' 

I  low.  (45  U.  S.)  37,  11  L.  ed.  865.  In    the   absence   of  any   repealing 

Arkansas:  Porter  v.  Waterman,  77  clause,  it  is  necessary  to  the  impliea- 

Ark.  383,  91  S.  W.  574.  tion  of  a  repeal  that  the  objects  of  the 

Illinois:   Kenaga  v.  Kerr,  123  111.  two  statutes  are  the  same.     If  they 

659,   14  N.  E.  671;  Hunt  v.  Chicago,  are    not,    both    statutes    will    stand, 

H.  &  D.  R.  Co.,  121  111.  638,  13  N.  E.  though  they  refer  to  the  same  sub- 

176.     See  Bastian  v.  Modern  Wood-  ject.     United  States  v.  Claflin,  97  U. 

men  of  America,  166  III.  595,  46  N.  S.  546,  24  L.  ed.  1082. 

E.  1090,  rev'g  68  App.  111.  378. 

441 


§    2S3  CONSTITUTIONAL    LAW — INTERPRETATION 

respect  to  that  subject,  which  are  to  govern.60  But  a  statute 
will  not  operate  to  repeal  a  prior  statute  merely  because  it 
repeats  some  of  the  provisions  of  the  prior  act,  and  omits 
others,  or  adds  new  provisions;  but  in  such  cases  the  later  en- 
actment operates  as  a  repeal  of  the  former  one  only  when  it 
plainly  appears  that  it  was  intended  as  a  substitute  for  the 
first  act.61  If  a  state  statute  and  a  Federal  statute  operate 
upon  the  same  subject-matter,  and  prescribe  different  rules 
concerning  it,  and  the  Federal  statute  is  one  within  the  com- 
petency of  Congress  to  enact,  the  state  statute  must  give 
away.62  As  a  rule  of  construction  a  statute  amended  is  to  be 
understood  in  the  same  sense  exactly  as  if  it  had  read  from 
the  beginning  as  it  does  amended.63  An  amendatory  or  ad- 
ditional act  which  is  germane  to  the  original  act  is  to  be  con- 
strued in  conjunction  with  such  original  enactment  unless  an 
intent  clearly  appears  to  the  contrary ; 64  and  this  applies  to  an 
act  of  incorporation,  being  in  pari  materia.65 ' 


60 United  States:  Tracy  v.  Tuffly,       62  Gulf,  Colorado  &  Santa  Fe  Ry. 

134   U.    S.   206,  33    L.   ed.   879,    10  Co.  v.  Hefley,  158  U.  S.  98,  39  L.  ed. 

Supp.  Ct.  527;   Davies  v.  Fairbairn,  910,' 15  Sup.  Ct.  802. 
3    How.    (44  U.  S.)  636,  11  L.   ed.        63  Blair  v.  Chicago,  201  U.  S.  400, 

760.  50  L.  ed.  801,  26  Sup.  Ct.  427;  Peters 

California:    Cerf    v.   Reichert,    73  v.  Vawter,  10  Mont.  201,  25  Pac.  438. 

Cal.  360,  15  Pac.  10.  See  also  McGuire  v.  Chicago,  Burling- 

Iowa:     State     v.     Courtney,    73  ton  &Quincy  Rd.  Co.,  131  Iowa,  340, 

Iowa,  619,  35  N.  W.  685.  108  N.  W.  902.      Examine  Building 

Kentucky:    Millay    v.    White,    86  &  Loan  Assoc,  v.   Sohn,  54  W.  Va. 

Ky.  170,  5  S.  W.  429.  101,  46  S.  E.  222. 

Nebraska:  State  v.  Omaha  Eleva-        64  McGuire  v.  Chicago,  Burlington 

tor  Co.  (Neb.,  1906),  106  N.  W.  979.  &  Quincy  Rd.   Co.,   131   Iowa,   340, 

New     Jersey:      Hotel      Registry  108  N.  W.  902;  Woodall  v.  Boston 

Realty'Corp.  v.  Stafford,  70  N.  J.  L.  Elevated  Ry.   Co.   (Mass.,  1906),   78 

528,  57  Atl.  145.  N.  E.  446;  People  v.  Michigan  Cent. 

Tennessee:   Terrell   v.   State,   86  Rd.   Co.    (Mich.,  1906),  108   N.    W. 

Tenn.  523,  8  S.  W.  212.  772,  13  Det.  Leg.  N.  552;  Village  of 

See  last  preceding  note  herein.  Portchester,  In  re  Locust  Ave.,  97  N. 

61  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Y.  Supp.  508,  110  App.  Div.  774,  case 

United  States,  127  U.  S.  406,  32  L.  aff'd  and  modified  185  N.  Y.  115,  77 

ed.  180,  8  Sup.  Ct.  1194;  Red  Rock  v.  N.  E.  1012. 

Henry,  106  U.  S.  596,  27  L.  ed.  251,  1        65  Meyer  v.  Johnston,  53  Ala.  237, 

Sup.  Ct.  434.  321. 

442 


OR    CONSTRUCTION    OF    STATUTES    CONTINUED         §   284 

§281.  Same  Subject  Continued — Instances. — Renewals  of 
charters  granted  after  an  enactment  providing  for  repeal  or 
amendment  of  all  charters  are  subject  to  the  statute  though  it 
expressly  provides  that  it  shall  only  apply  to  charters  to  be 
subsequently  granted.66  And  a  statute  which  grants  to  all 
corporations  the  right  to  obtain  amendments  to  their  charters 
in  a  certain  way  does  not  conflict  with  a  prior  statute,  granting 
to  railroad  companies  the  right  to  change  their  termini  at 
any  time  before  final  location  of  the  road,  so  as  to  repeal  it  by 
implication.67  A  constitutional  requirement  that  an  act  or 
section  amended  shall  be  re-enacted  and  published  at  length 
does  not  apply  to  a  special  act  of  incorporation  of  a  railroad 
company  granting  it  all  the  privileges,  immunities,  etc.,  of  a 
certain  general  railroad  law,  as  such  special  act  is  neither  a 
revision  or  amendment.68  If  an  act  authorizing  the  organiza- 
tion of  mutual  insurance  companies  is  so  complete  in  itself 
as  to  repeal  even  impliedly  all  prior  inconsistent  laws,  a  con- 
stitutional provision  requiring  the  section  or  sections  amended 
to  be  contained  in  the  new  enactment  does  not  apply.69  An 
act  amending  "an  act  to  facilitate  the  construction  of  rail- 
roads" is  not  repealed  by  the  failure  of  the  legislature  to  in- 
corporate it  in  a  revision  of  the  statutes.70  Where  a  statute  is 
a  public  act  a  subsequent  act  which  is  amendatory  and  supple- 
mentary is  also  a  public  one.71  A  statute  which  regulates 
passenger  and  freight  rates  docs  not  impliedly  repeal  prior 
laws  on  the  subject  when  not  irreconcilably  repugnant  thereto 
or  where  it  is  not  apparent  that  such  later  enactment  was  in- 
tended to  comprehend  the  entire  subject  and  so  supersede  the 
prior  laws.72     The  liability  of  a  railroad  company  for  death 

88  Northern  Bank  v.  Stone  (C.  C.),  "Cape    Girardeau    Co.    Court    v. 

88  Fed.  413.  Hill,  118  U.  S.  68,  30  L.  ed.  73,  6  Sup. 

"Memphis  &  State  Line  Rd.  Co.  Ct. — . 

v.  Union  Ry.  Co.,  110  Tenn.  500,  95  71  Unity  v.  Burrage,  103  U.  S.  447, 

S.  W.  1019.  26  L.  ed.  405  (railroad  aid  bonds  of 

"Quinlan  v.  Houston  &  T.  C.  R.  county). 

Co.,  89  Tex.  356,  34  S.  W.  738.  72  Southern  Ry.  Co.  v.  McNeill,  155 

88  Farmers'  Mut.  Ins.  Co.  v.  Moore,  Fed.  756. 
48  Neb.  870,  67  N.  W.  876. 

443 


§   285  CONSTITUTIONAL   LAW — INTERPRETATION 

by  negligence  arising  before  repeal  of  a  statute  providing 
therefor  is  not  affected  by  such  repeal.73  The  operation  of  a 
statute  providing  for  an  indictment  for  unlawful  discrimination 
in  transportation  of  passengers  is  merely  suspended  for  one  day 
where  such  enactment  is  repealed  on  a  day  certain  and  it  is 
re-enacted  verbatim  to  take  effect  on  the  next  following  day.74 

§285.  Same  Subject  —  Instances  Continued  — Taxation 
and  Assessment.  — A  statute  covering  the  subject-matter  of 
all  acts  as  to  assessment  and  taxation  and  containing  a  repealing 
clause  and  provisions  inconsistent  with  a  prior  act  as  to  the 
power  of  %cities  to  tax  and  assess  property,  repeals  such  incon- 
sistent statute.75  But  a  special  act  as  to  the  power  to  tax  to 
pay  bridge  bonds  of  a  county  is  not  repealed  by  a  general  law 
limiting  the  power  of  counties  as  to  taxation.76  And  a  general 
statute  taxing  every  railroad  company  will  not  operate  to 
repeal  a  charter  exemption  of  a  corporation.77  A  statute,  how- 
ever, which  provides  a  general  scheme  for  assessing  and  taxing 
the  property  of  railroad  and  telegraph  companies  as  a  whole, 
and  for  distributing  it  ratably  among  the  different  counties, 
and  their  several  precincts,  townships  and  districts,  according 
to  the  number  of  miles  of  line  in  each,  repeals,  as  to  such  prop- 
erty, a  power  conferred  upon  the  authorities  of  a  city  to  make 
provisions  for  the  assessment  of  the  taxes  which  they  were  au- 
thorized by  other  provisions  of  the  city  charter  to  assess  and 
collect.78  Again,  a  provision  of  an  act  relating  to  a  situs  of 
stock  of  foreign  corporations  for  taxation  is  not  repealed  by  im- 
plication by  omission  of  such  provision  from  a  compiled  code.79 

73  Culpepper  v.  International  &  G.        75  State,  Ross,  v.  Kelly,  45  S.  C. 
N.  R.  Co.,  90  Tex.  627,  40  S.  W.  386,    457,  23  S.  E.  281. 

aff'g  38  S.  W.  818;  Albrecht  v.  Mil-  76  Burnett   v.    Maloney,   97  Tenn. 

waukee  &  S.  R.  Co.,  94  Wis.  397,  69  697,  37  S.  W.  689,  34  L.  R.  A.  541. 

N.  W.  63.    See  State  v.  Maine  C.  R.  "  Commonwealth  v.  Richmond  & 

Co.,  90  Me.  267,  38  Atl.  158  (repeal;  P.  R.  Co.,  81  Va.  355. 

remedy    by     indictment    for    death  78  Union  Pacific  Ry.  Co.  v.  Chey- 

caused  by  negligence  superseded  by  enne,  113  U.  S.  516,  5  Sup.  Ct.  601, 

civil  remedy).  28  L.  ed.  1098. 

74  State  v.  Southern  Ry.  Co.  (N.  C,  n  Georgia  Railroad  &  Banking  Co. 
1899),  34  S.  E.  527.  v.  Wright,  124  Ga.  596,  53  S.  E.  251, 

444 


OR   CONSTRUCTION    OF   STATUTES    CONTINUED         §   286 

§  286.  Construction  of  Statutes,  Charters  and  Ordinances 
— Miscellaneous  Cases. — Where  the  legislature  has  classified 
suburban  and  interurban  railroads  with  street  railroads,  the 
laws  governing  the  latter  will  govern  as  to  the  former.80  If 
a  corporation  chartered  prior  to  the  existing  constitution  of 
a  State  is  wound  up  and  all  of  its  property,  contracts  and  ob- 
ligations transferred  by  ordinance  to  a  new  corporation,  the 
ordinance  must  be  construed  in  connection  with  the  consti- 
tution and  such  provisions  for  further  control  as  are  therein 
contained.81  Although  the  language  of  a  statute  provides  for 
the  renewal  of  a  street  railway  franchise  upon  the  expiration 
thereof,  such  grants  may  be  extended  before  their  expiration, 
and  in  construing  municipal  ordinances  relating  to  such  ex- 
tensions it  may  be  reasonably  presumed  that  no  provision 
escaped  attention  or  was  misunderstood.82  The  generally  in- 
clusive terms  of  the  Bush  Act  are  to  be  interpreted  with 
reference  to  the  State's  plenary  power  over  its  purely  internal 
commerce,  and  over  foreign  corporations  seeking  to  engage 
in  such  commerce;  and,  so  interpreted,  the  law  applies  to  all 
foreign  corporations  not  engaged  in  interstate  commerce,  or 
business  for  the  Federal  government,  and  to  all  foreign  cor- 
porations engaged  in  interstate  commerce  or  business  for 
the  Federal  government  to  the  extent  that  they  must  comply 
with  its  requirements  in  order  to  engage  in  non-governmental 
interstate  business.83  A  provision  in  an  act  of  Congress  in- 
corporating a  bank  which  requires  that  the  capital  stock  shall 
consist  of  a  certain  number  of  shares  of  a  certain  amount  each 
is  not  a  condition  precedent.84    A  clause  in  a  charter  that  it 

case  reversed  in  Central  of  Georgia  Altgelt,  200  U.  S.  304,  26  Sup.  Ct. 

Ry.  Co.  v.  Wright,  207  U.  S.   127,  261,  50  L.  ed.  491. 

upon  the  point  that,  due  process  of  82  Cleveland    Electric    Ry.    Co.    v. 

law   requires   an   opportunity   to   be  City  of  Cleveland,  135  Fed.  368,  aff'd 

heard,  as  to  the  validity  of 'a  tax  and  Cleveland  v.  Cleveland  Electric  Ry. 

the  amount  of  assessment,  to  be  given  Co.,  201  U.  S.  529,  50  L.  ed.  854. 

:i  taxpayer.  83  State    v.    Western    Union   Teleg. 

80  Cincinnati  &  H.  E.  St.  Ry.  Co.  v.  Co.  (Kan..  1907),  90  Pac.  299. 
Cincinnati,  H.  &  I.  R.  Co.,  12  Ohio  84  Minor  v.  Mechanics'  Bank,  1  Pet. 
C.  D.  113.  (26  U.  S.)  46,  7  L.  ed.  17. 

81  San    Antonio    Traction    Co.     v. 

445 


§    287  CONSTITUTIONAL    LAW — INTERPRETATION 

shall  not  be  lawful  for  any  person  or  persons  to  erect  a  bridge 
within  a  certain  distance  of  the  bridge  in  question  means, 
not  only  that  no  person  or  association  of  persons  shall  erect 
such  a  bridge  without  legislative  authority,  but  that  the  leg- 
islature itself  will  not  make  it  lawful  for  any  person  or  asso- 
ciation of  persons  to  do  so  by  giving  them  authority.85  A 
clause  of  forfeiture  in  a  law  is  to  be  construed  differently  from 
a  similar  clause  in  an  engagement  between  individuals.  A 
legislature  can  impose  it  as  a  punishment,  but  individuals  can 
only  make  it  a  matter  of  contract.  Being  a  penalty  imposed 
by  law  the  legislature  has  the  right  to  remit  it.86  Where  un- 
der an  ordinance  a  street  railway  company  has  the  right  by 
a  written  acceptance  thereof  to  designate  the  streets  on  which 
its  railway  will  be  constructed  and  operated,  and  has  also  the 
right  to  occupy  such  other  streets  as  may  be  thereafter  desig- 
nated by  resolution  of  the  city  council,  a  permission  so  granted 
to  occupy  another  street  does  not  operate  as  a  new  franchise, 
and  the  designation  by  the  company  of  streets  relates  only  to 
the  minimum  of  mileage.87  A  corporate  charter  by  which  a 
corporation,  with  a  grant  from  another  State,  obtains  all  the 
rights  and  privileges  possessed  under  the  foreign  grant,  does 
not  confer  privileges  which  conflict  with  the  constitution  of 
the  foreign  State  where  such  original  charter  was  granted, 
even  though  such  privileges  do  not  violate  the  constitution 
of  the  other  State.88 

§287.  Prospective  and  Retrospective  Operation. — A  stat- 
ute operates  prospectively  only  unless  a  contrary  intent  very 
clearly  appears.89    There  is  a  presumption  against  retrospec- 

85  The      Binghamton      Bridge,     3        89  United   States:    City  R.   Co.  v. 

Wall.  (70  U.  S.)  51,  18  L.  ed.  137.  Citizens'  St.  Ry.  Co.,  166  U.  S.  557, 

8«  Maryland  v.  Baltimore  &  O.  R.  41    L.    ed.    1114,    17    Sup.    Ct.    653 

Co.,  3  How.  (44  U.  S.)  534,  11  L.  ed.  United     States     v.     Trans-Missouri 

714.  Freight  Assoc,  166  U.  S.  290,  41  L 

87  Thurston  v.   Huston,   123  Iowa,  ed.   1007,   17  Sup.  Ct.  540,   14  Nat 
157,  98  N.  W.  637.  Corp.  Rep.   116,  148;  Chicago  &  N 

88  Johnston   v.   State,   91    Ala.   70,  W.  R.  Co.  v.  United  States,  104  U 
9  So.  71.  S.   680,    26   L.   ed.    891;   Harvey   v 

446 


OR    CONSTRUCTION    OF    STATUTES    CONTINUE,!.) 


§  287 


tive  legislation;  it  is  not  favored,  and  words  in  a  statute  will 
not  be  construed  as  retroactive  unless  they  clearly  can  be 
given  no  other  effect  and  the  legislative  intent  cannot  be  other- 
wise satisfied;  in  this  respect  the  use  in  the  statute  of  the 
future  tense  must  be  given  weight.90    The  Fourteenth  Amend- 


Tyler,  2  Wall.  (69  U.  S.)  328,  17  L. 
ed.  871;  United  Mines  Co.  v.  Hatcher 
(C.  C.),-  79  Fed.  517,  49  U.  S.  App. 
139,  aff'g  and  partly  rev'g  75  Fed. 
368.  See  Wright  v.  Southern  R.  Co. 
(C.  C),  80  Fed.  260. 

Illinois:  Voigt  v.  Kersten,  164  111. 
314.  45  N.  E.  543.  See  Halpin  v. 
Prosperity  Loan  &  Bldg.  Assoc.,  108 
111.  App.  316. 

Maine:  Knight  v.  Burnham,  90 
Me.  294,  38  Atl.  168. 

Massachusetts:  Wild  v.  Boston  & 
M.  R.  Co.,  171  Mass.  245,  50  N.  E. 
533. 

Minnesota:  Powers  v.  St.  Paul,  36 
Minn.  87,  30  N.  W.  433. 

Mississippi:  Capital  State  Bank  v. 
Lewis,  64  Miss.  727,  2  So.  243. 

Nebraska:  Mcintosh  v.  Johnson, 
51  Xeb.  33,  70  N.  W.  522;  State,  City 
Water  Co.,  v.  Kearney,  49  Neb.  325, 
68  N.  W.  533. 

South  Carolina:  Turner  v.  Inter- 
state Bldg.  &  Loan  Assoc,  51  S.  C. 
33,  27  S.  E.  947,  7  Am.  &  Eng.  Corp. 
(as.  (N.  S.)  228. 

Utah:  Mercur  Gold  Min.  &  Mill. 
Co.  v.  Spry,  16  Utah,  222,  52  Pac. 
382. 

West  Virginia:  Stewart  v.  Van- 
dervort,  34  W.  Va.  524,  12  S.  E.  736, 
12  L.  R.  A.  50. 

See  Blair  v.  Chicago,  201  U.  S.  400, 
26  Sup.  Ct.  427,  50  L.  ed.  801  (rev'g 
132  Fed.  848,  where  certain  statutes 
were  held  not  unconstitutional  under 
the  constitution  in  force  when  they 
were  passed);  Fowler  v.  Lewis,  :'.<"» 
W.  Va.  112,  1  I  S.  E.  117. 

Compare  State,  Jones,  v.   Landis, 


50  N.  J.  L.  374,  13  Atl.  251;  State, 
Essex  Public  Road  Board,  v.  Skinkle, 
49  N.  J.  L.  641,  10  Atl.  379;  Fitz- 
gerald v.  Phelps  &  B.  Windmill  Co., 
42  W.  Va.  570,  26  S.  E.  315. 

Only  laws  in  existence  or  prospec- 
tive laws,  and  not  those  then  re- 
pealed, are  within  the  terms  of  the 
statutory  construction  law  of  New 
York.  People  v.  Potter,  82  N.  Y. 
Supp.  649,  40  Misc.  485. 

A  statute  operates  prospectively 
so  that  it  does  not  cure  prior  misuser 
of  franchise  as  a  ground  of  forfeiture 
of  a  charter.  State,  Walker,  v. 
Equitable  Loan  &  I.  Assoc,  142  Mo. 
325,  41  S.  W.  916. 

Unless  on  its  face  the  contrary  in- 
tention is  manifest  beyond  reasonable 
question  a  statute  is  construed  to 
operate  prospectively  only.  Shot- 
well  v.  Moore,  129  U.  S.  590,  32  L.  ed. 
827,  9  Sup.  Ct.  — . 

90 United  States:  United  States  v 
American  Sugar  Ref.  Co.,  202  U.  S 
563,  50  L.  ed.  1149,  26  Sup.  Ct.  717 
White  v.  United  States,  191  U.  S 
545,  24  Sup.  Ct,  171,  48  L.  ed.  301 
Chew  Heong  v.  United  States,  112  U 
S.  536,  28  L.  ed.  770,  5  Sup.  Ct.  255; 
United  States  v.  Beth,  3  Cranch  (7 
I".  S.),  399,  2  L.  ed.  479;  United 
States  v.  Atchison,  Topeka  &  Santa 
Fe  Ky.  Co.,  142  Fed.  176. 

Alabama:  State  v.  Gloss,  83  Ala. 
93,  3  So.  745. 

Arkansas:  St.  Louis,  A.  it  T.  R. 
Co.  v.  Phila.  F.  Assoc,  55  Ark.  163, 
18  S.  W.  13. 

California:  Webber  v.  Clarke,  74 
Cal.  1 1.  15  Pac.  431 

117 


§   288  CONSTITUTIONAL   LAW — INTERPRETATION 

ment,  however,  contains  no  prohibition  of  retrospective  leg- 
islation as  such,  and,  therefore,  the  mere  fact  that  a  statute 
is  retroactive  in  its  operation  does  not  make  it  repugnant  to 
the  Federal  Constitution.91  Where  the  measure  of  damages 
under  a  statute  for  destruction  of  property  for  fire  negligently 
caused  by  railroad  companies  is  limited  by  a  deduction  of 
the  amount  of  insurance  received  for  such  loss,  the  enactment 
does  not  operate  retrospectively  as  to  loss  of  property  oc- 
casioned before  passage  of  the  statute.92  And  a  statute  which 
limits  the  liability  of  a  railroad  company  for  fires  applies  to 
an  insurance  policy  taken  out  prior  thereto,  where  the  loss 
is  occasioned  subsequent  to  such  enactment,  and  the  difference 
between  the  amount  of  the  insurance  and  of  the  loss  is  the 
measure  of  liability  fixed  by  such  statute.93 

§288.  Validating  Statutes —Waiver  or  Correction  of  De- 
fect or  Irregularity. — An  unconstitutional  statute  is  not  a 
law;  it  confers  no  rights;  it  imposes  no  duties;  it  affords  no 

Colorado:  City  of  Colorado  Springs  Pennsylvania:    Horn  &  Brannan 

v.  Weirlle  (Colo.,  1908),  93  Pac.  1096.  Mfg.  Co.  v.  Steelman,  215  Pa.   187, 

Illinois:  Cleary  v.  Hoobler,  207  111.  64  Atl.  409. 

97,  69  N.  E.  967.  Texas:  Rockwell  County  v.  Kauf- 

Indiana:Nicklausv.  Conkling,  118  man  County,  69  Tex.  172,  6  S.  W. 

Ind.  289,  20  N.  E.  797.  431. 

Montana:  State  v.  Northern  Pac.  Virginia:    Crabtree    v.    Old    Do- 

Ry.  Co.  (Mont.,  1908),  93  Pac.  945;  minion  Bldg.  &  Loan  Assoc,  95  Va. 

Chicago  Title  &  Trust  Co.  v.  O'Marr,  670,  4  Va.  Law  Reg.  12,  64  Am.  St. 

18  Mont.  568,  46  Pac.  809,  47  Pac.  4.  Rep.  818,  29  S.  E.  741;  Richmond  v. 

Nebraska:     Commercial    Bk.     v.  Henrico  County,  83  Va.  204,  2  S.  E. 

Eastern  Bkg.  Co.,  51  Neb.  766,  71  26. 

N.  W.  1024.  Wisconsin:    Strike    v.    Wisconsin 

New   Jersey:    Roxbury  Lodge  v.  Odd  Fellows  Mut.  L.  Ins.  Co.,  95  Wis. 

Hocking,  60  N.  J.  L.  439,  38  Atl.  693,  583,  70  N.  W.  819. 

64  Am.  St.  Rep.  596.  91  League  v.  Texas,  184  U.  S.  156, 

New  York:  Union  College,  In  re,  46  L.  ed.  478,  22  Sup.  Ct.  475.    See 

129  N.  Y.  308,  4  N.  Y.  St.  R.  640,  29  Watson  v.  Mercer,  8  Pet.  (33  U.  S.) 

N.  E.  460;  People  v.  O'Brien,  111  N.  88,  8  L.  ed.  876. 

Y.  1,  19  N.  Y.  St.  R.  173,  18  N.  E.  "Wild  v.  Boston  &  M.  R.  Co.,  171 

692,  7  Am.  St.  Rep.  684,  2  L.  R.  A.  Mass.  245,  50  N.  E.  533. 

255.  83  Leavitt  v.  Canadian  Pacific  R. 

Oregon:    State,  German    Sav.    &  Co.,  90  Me.  153,  37  Atl.886,  38  L.  R. 

Loan  Soc,  v.  Sears,  29  Oreg.  580,  46  A.  152. 
Pac.  785>  rev'g  43  Pac.  482. 

448 


OR    CONSTRUCTION    OF    STATUTES    CONTINUED  §   288 

protection;  it  creates  no  office;  it  is  in  legal  contemplation,  as 
inoperative  as  though  it  had  never  been  passed ; 94  and  it  can- 
not be  validated  by  the  legislature,95  nor  under  an  amended 
constitution.96  If,  however,  an  act  might  have  been  legally 
authorized  in  the  first  instance  it  may  thereafter  be  confirmed 
when  not  prohibited  by  the  constitution.97  And  if  a  statute 
would  be  otherwise  invalid  as  for  want  of  the  proper  signatures 
it  may  be  ratified  by  express  reference  thereto  in  an  accom- 
panying chapter  containing  supplemental  provisions  in  rela- 
tion to  the  same  subject-matter.98  So  the  legislature  may 
waive  and  correct  any  want  of  regularity  in  the  proceedings 
of  a  county  in  a  contract  between  it  and  a  railroad  company 
for  the  construction  of  its  road  therein  on  a  designated  line 
with  a  terminus,  and  upon  the  fulfillment  of  those  conditions 
to  convey  to  it  certain  of  its  unsettled  public  lands,  such  power 
to  contract  having  been  conferred  by  statute.99  Again,  al- 
though certain  rights,  such  as  the  authority  of  a  street  car 
company  to  become  a  carrier  of  freight,  have  been  conferred 
without  legislative  power  or  in  violation  of  law,  still  such 
powers  as  have  been  lawfully  granted  will  not  be  affected,  and 
the  legislature  may  by  general  law  affirm  and  validate  such 
void  grants  so  that  the  acceptance  by  such  company  of  the 
provisions  of  the  validating  act  makes  it  a  de  jure  corporation 
possessed  with  all  the  authority  and  powers  vested  under  the 
charter.1     If  the  legislature  possesses  the  power  to  authorize 

"*  Norton   v.   Shelby  County,    118  770.     Compare   Sweet   v.   Syracuse, 

U.  S.  425,  30  L.  ed.  178,  6  Sup.  Ct.  129  N.  Y.  337,  41  N.  Y.  St,  Rep.  649, 

1121;  Minnesota  Sugar  Co.  v.  Iver-  29  N.  E.  289. 

son,  90  Minn.  6,  97  N.  W.  454.  87  Steele    County    v.    Erskine,    98 

85  State,     Charleston,     Cincinnati,  Fed.  215. 

&  Chicago  Rd.  Co.,  v.  Whitesides,  30  88  Wrought-Iron     Range     Co.     v. 

S.  C.  579,  3   L.   R.   A.  777,  9  S.  E.  Carver,  118  N.  C.  328,  24  S.  E.  352. 

661.        See     Cedar     Rapids     Water  "Roberts  v.  Northern  Pacific  R. 

Co.   v.   City  of  Cedar   Rapids,    118  Co.,  158  IT.  S.  1,  39  L.  ed.  873,  15 

Iowa,  234,  91  N.  W.  1031.    Compare  Sup.    Ct.    756.      See   also   Steele   v. 

Sweet  v.  Syracuse,  129  N.  Y.  337,  41  County  of  Erskine,  98  Fed.  215. 

N.  Y.  St.  K.  (119,  29  N.  E.  289.  '  Brown  v.  Atlanta  R.  &  Power  Co., 

••Seneca   Min.  Co.   v.  Osman,   82  113  Ga.  462,  39  S.  E.  462,  39  S.  E. 

Mich.  .":>>.  17  N.  W.  25,  9  L.   R.  A.  71. 

20  449 


§   288  CONSTITUTIONAL   LAW — INTERPRETATION 

an  act  to  be  done,  it  can  by  retrospective  act  cure  the  evils 
which  existed,  because  the  power  thus  conferred  has  been 
irregularly  executed.2  A  municipal  subscription  to  the  stock 
of  a  railroad  company,  or  in  aid  of  the  construction  of  a  rail- 
road, made  without  authority  previously  conferred,  may  be 
confirmed  and  legalized  by  subsequent  legislative  enactment, 
when  legislation  of  that  character  is  not  prohibited  by  the 
constitution,  and  when  that  which  was  done  would  have  been 
legal  had  it  been  done  under  legislative  sanction  previously 
given.3  If  the  power  of  the  legislature  to  legalize,  by  cura- 
tive enactments,  matters  or  proceedings  which  are  defective 
under  a  former  statute,  is  taken  away  by  a  constitutional 
amendment  before  passing  such  curative  act,  such  remedial 
act  is  void.4 

2  Thomas  v.  Lee  County,  3  Wall.        4  Kimball  v.  Town  of  Rosendale, 
(70  U.  S.)  327,  18  L.  ed.  177.  42  Wis.  407,  24  Am.  Rep.  421  (act 

Amendment  may  cure  a  defective  confirming    irregular    assessment    of 

statute.    State,  McLorinan,  v.  Ryno,  taxes;      constitutional      amendment 

49  N.  J.  L.  603,  10  Atl.  189.  prohibited  enactment  of  special  laws 

3  Grenada   County  Supervisors  v.  for  assessment  or  collection  of  taxes). 
Brogden,  112  U.  S.  261,  28  L.  ed.  704, 

5  Sup.  Ct.  125. 


450 


CONSTITUTIONAL  LAW — FEDERAL   CONSTITUTION       §   289 


CHAPTER  XVIII. 


CONSTITUTIONAL   LAW — FEDERAL   CONSTITUTION. 


{  289.  Constitution — Grant  and  Lim- 
itation on  Powers  of  Gov- 
ernments —  Express  and 
Implied  Powers — Construc- 
tion. 

290.  Same  Subject  Continued. 

291.  Privileges  and  Immunities  of 

Citizens  in  the  Several 
States. 

292.  Same     Subject    Continued — 

Discrimination — Tax  Law 
— Deduction  of  Debts — 
Creditors  in  Different 
States. 


293.  Same     Subject  —  Actions  — 

Statute  of  Limitations. 

294.  The  Fourteenth  Amendment 

— Generally. 

295.  Same  Subject — -Police  Power. 

296.  Privileges  and  Immunities  of 

Citizens     of     the     United 
States. 

297.  Due  Process  of  Law. 

298.  Same  Subject  Continued. 

299.  Same  Subject  Continued. 

300.  Equal      Protection     of     the 

Laws. 


§  289.  Constitution — Grant  and  Limitation  on  Powers  of 
Governments — Express  and  Implied  Powers — Construc- 
tion.—  We  have  considered  the  question  of  national  and 
state  powers  generally,1  and  also  the  distinction  between  the 
grant,  by  the  constitution,  of  powers  to  the  Federal 2  and  lim- 
itations on  the  state  governments ; 3  and  it  may  also  be  stated 

1  See  §  120,  herein. 

'See  §    121,  herein. 

See  the  following  cases: 

United  States:  Spooner  v.  Mc- 
Connell,  1  McLean  (C.  C),  337,  Fed. 
Cas.  No.  13,245. 

Arkansas:  Hawkins  v.  Filkins,  24 
Ark.  286;  State  v.  Ashley,  1  Pike 
(Ark.),  513. 

Connecticut:  Pratt  v.  Allen,  13 
Conn.  119. 

Florida:  Cotten  v.  County  Com- 
missioners, 6  Fla.  610. 

Iowa:  Purczell  v.  Smidt,  21  Iowa, 
540. 


Louisiana:  State  v.  Nathan,  121 
Rob.  (La.)  332. 

Nebraska:  State  v.  Moore,  40  Neb. 
854,  59  N.  W.  755. 

Pennsylvania:  Page  v.  Allen,  58. 
Pa.  338,  98  Am.  Dec.  272. 

Utah:  State  v.  Holden,  14  Utah, 
71,  37  L.  R.  A.  103,  46  Pac.  756. 

sSee  §§  121,  137,  herein. 

See  the  following  cases: 

United  States:  Trezza  v.  Brush, 
142  U.  S.  160,  12  Sup.  Ct,  158,  35  L. 
ed.  974;  McElvaine  v.  Brush,  142  U. 
S.  155,  35  L.  ed.  971,  12  Sup.  Ct.  156. 

Alabama:    State  v.  Skeggs    (Ala., 

451 


§    289      CONSTITUTIONAL    LAW — FEDERAL    CONSTITUTION 

here  that  the  settled  rule  of  construction  of  state  constitutions 
is  that  they  are  not  special  grants  of  power  to  legislative 
bodies,  like  the  Constitution  of  the  United  States,  but  general 
grants  of  all  the  usually  recognized  powers  of  legislation  not 
actually  prohibited  or  expressly  excepted.  It  is  a  limitation 
on  the  general  powers  of  a  legislative  character,  and  restrains 
only  so  far  as  the  restriction  appears  either  by  express  terms 
or  by  necessary  implication.  The  Federal  Constitution  con- 
fers powers  expressly  enumerated;  that  of  the  State  confers 

1908),  46  So.  268;  Dorsey,  In  re,  7  Nebraska:     State    v.    Moore,    40 

Port.  (Ala.)  293.  Neb.  854,  59  N.  W.  755.      See  State, 

Arkansas:    State    v.    Sorrels,    15  Smyth,  v.  Moores,  55  Neb.  480,  76  N. 

Ark.  664.  W.  175,  41  L.  R.  A.  624. 

California:      Beals      v.      Amador  New   York:     People  v.  Flagg,  46 

County,  35  Cal.  624;  Hobartv.  Butte  N.   Y.  401;    Bank  of    Chenango  v. 

County,   17  Cal.  23;  Ross  v.  Whit-  Brown,  26  N.  Y.  467.     See  Sage  v. 

man,  6  Cal.  361.  New  York,  154  N.  Y.  61,  38  L.  R.  A. 

Colorado:   People   v.  Fleming,  10  603,  47  N.  E.  1096,  30  Chic.  Leg.  N. 

Colo.  552,  16  Pac.  298.  1089,  aff'g  41  N.  Y.  Supp.  938,  10 

Connecticut:   Booth  v.   Town  of  App.  Div.  294. 

Woodbury,  32  Conn.  118;  Lowrey  v.  Ohio:    Bonebrake   v.   Wall    (Ohio 

Gridley,  30  Conn.  450.  C.  P.)  24  Ohio  L.  J.  175. 

Florida:  Cotter  v.  Ponder,  6  Fla.  Pennsylvania:      Lewis'      Appeal, 

610.  67  Pa.  153;   Page  v.   Allen,   58  Pa. 

Illinois:  Hawthorne  v.  People,  109  338,  98  Am.  Dec.  272;  Philadelphia, 

111.  302,  50  Am.  Rep.  610.  City  of,  v.  Field,  58  Pa.  320. 

Indiana:  Ho vey  v.  State,  119  Ind.  Tennessee:    Stratton    v.    Morris, 

395,  21  N.  E.  21.  5  Pick.  (89  Term.)  497,  15  S.  W.  87, 

Iowa:    Eckerson    v.  City  of  Des  12  L.  R.  A.  70. 

Moines  (Iowa,  1908),  115  N.W.  177;  Utah:    State  v.  Holden,  14  Utah, 

McMillen  v.  County  Judge  &  Treas.  71,  46  Pac.  756,  37  L.  R.  A.  103. 

of  Lee  County,  6  Iowa,  391.  Vermont:    Thorpe     v.     Rutland, 

Kansas :  Ratcliff  v.  Wichita  Union  &  Burlington  Rd.  Co.,  27  Vt.  140, 

Stockyards  Co.,  74  Kan.   1,  86  Pac.  62  Am.  Dec.  625. 

150.  Virginia:     Whitlock  v.   Hawkins, 

Kentucky:       Griswold     v.     Hep-  105  Va.  242,  53  S.  E.  401. 

burn,  2  Div.  (63  Ky.)  20.  Washington:    State  v.  Clark,  30 

Louisiana:    Hughes   v.   Murdock,  Wash.  439,  71  Pac.  20. 
45  La.  Ann.  935,  13  So.  182.  West  Virginia:  Bridges  v.  Shell- 
Michigan:       Attorney     Genl.     v.  cross,  6  W.  Va.  562. 
Preston,  56  Mich.  177,  22  N.  W.  261.  Wisconsin:  Bushnell  v.  Beloit,  10 

Missouri:     State    ex  rel.  Henson  Wis.  195. 

v.  Sheppard,  192  Mo.  497,  91  S.  W.  Enumeration    of    powers— Bill    of 

477.  Rights    of     Nebraska    constitution. 

452 


CONSTITUTIONAL   LAW — FEDERAL   CONSTITUTION      §    289 

a  general  grant  of  all  powers  not  excepted.4  So  the  constitu- 
tion itself  and  not  the  general  body  of  the  law  must  be  re- 
sorted to  in  order  to  determine  the  limitations  on  the  powers 
of  the  legislature;5  That  the  government  of  the  United  States 
is  one  of  enumerated  powers  is  constantly  asserted;  it  has  no 
inherent  powers  of  sovereignty ;  the  enumeration  of  the  powers 
granted  is  to  be  found  in  the  Constitution  of  the  United  States 
and  in  that  alone;  the  manifest  purpose  of  the  Tenth  Amend- 
ment to  the  Constitution  is  to  put  beyond  dispute  the  proposition 
that  all  powers  not  granted  are  reserved  to  the  people,  and  if 
in  the  future  further  powers  ought  to  be  possessed  by  Congress 
they  must  be  obtained  by  a  new  grant  from  the  people.6  The 
Federal  Constitution  is,  however,  a  written  instrument,  and, 
as  such,  its  meaning  does  not  alter.  Its  language,  as  a  grant 
of  power  to.  the  national  government,  is  general,  and  as 
changes  come  in  social  and  political  life,  it  embraces  all  new 
conditions  within  scope  of  the  powers  conferred.7  Again,  the 
Constitution  was  ordained  and  established  by  the  people  of  the 
United  States  for  themselves:  for  their  own  government;  and 
not  for  the  government  of  individual  States.  Each  State 
established  a  constitution  for  itself,  and  in  that  constitution, 
provided  such  limitations  and  restrictions  on  the  powers  of 
its  particular  government  as  its  judgment  dictated.  The 
people  of  the  United  States  framed  such  a  government  for 
the  United  States  as  they  supposed  best  adapted  to  their 
situation,  and  best  calculated  to  promote  their  interests;  the 
powers  they  conferred  on  this  government  were  to  be  exer- 
cised by  itself;  and  the  limitations  on  power,  if  expressed  in 

See  State,  Smyth,  v.  Moores,  55  Neb.  5  Erie  &  North-East  Rd.  v.  Casey, 

480,  76  N.  W.  175,  41  L.  R.  A.  624.  26  Pa.  287. 

4  Southern     Pacific     Rd.     Co.     v.  •  Kansas  v.  Colorado,  206  U.  S.  46, 

Orton,   32   Fed.   457,   472,   473,   per  51  L.  ed.  956,  27  Sup.  Ct.  655.    See 

Sawyer,  J.,  citing   or  quoting  Bour-  citations  in  second  preceding  note  to 

land  v.  Hildreth,  26  Cal.   183,  215,  this  section. 

225;  People  v.  Sasswitch,  29  Cal.  482;  '  South  Carolina  v.  United  States, 

Stock) or,  &  Vis.dia  Rd.  Co.  v.  Stock-  199  U.  S.  437,  50  L.  ed.  — ,  26  Sup. 

ton,  41  Cal.  147,  161,  162;  Sharpless  Ct.  — .    See  Dred  Scott  v.  Sandford, 

v.  Mayor  of  Philadelphia,  21  Pa.  160.  19  How.  (60  U.  S.)  393,  15  L.  ed.  191. 

453 


§   290     CONSTITUTIONAL   LAW— FEDERAL   CONSTITUTION 

general  terms,  are  naturally  and  necessarily  applicable  to  the 
government  created  by  the  instrument;  they  are  limitations 
of  power  granted  in  the  instrument  itself;  not  of  distinct  gov- 
ernments framed  by  different  persons  and  for  different  pur- 
poses.8 And  although  the  government  of  the  United  States  is, 
within  the  scope  of  its  powers,  supreme  and  beyond  the  States, 
it  can  neither  grant  nor  secure  to  its  citizens  rights  or  privileges 
which  are  not  expressly  or  by  implication  placed  under  its 
jurisdiction.  All  that  cannot  be  so  granted  or  secured  are 
left  to  the  exclusive  protection  of  the  States.0  But  it  is  held 
that  the  reservation  to  the  States  does  not  limit  the  power  of 
Congress  to  legislate  for  the  Territories.10 

§  290.  Same  Subject  Continued.  —The  Federal  government 
is  not  restricted  to  the  powers  expressly  granted  in  the  Con- 
stitution; it  has  all  the  powers  necessarily  implied  from  the 
powers  granted.11  The  government  of  the  United  States  was 
born  of  the  Constitution,  and  all  powers  which  it  enjoys  or 
may  exercise  must  be  either  derived  expressly  or  by  implica- 
tion from  that  instrument.  Even  then,  when  an  act  of  any 
department  is  challenged,  because  not  warranted  by  the  Con- 
stitution, the  existence  of  the  authority  is  to  be  ascertained 
by  determining  whether  the  power  has  been  conferred  by  the 
Constitution,  either  in  express  terms  or  by  lawful  implication, 
to  be  drawn  from  the  express  authority  conferred  or  deduced 
as  an  attribute  which  legitimately  inheres  in  the  nature  of  the 
powers  given,  and  which  flows  from  the  character  of  the  gov- 
ernment established  by  the  Constitution.  In  other  words, 
whilst  confined  to  its  constitutional  orbit  the  government  of 
the  United  States  is  supreme  within  its  lawful  sphere.  Every 
function  of  the  government  being  thus  derived  from  the  Con- 
stitution, it  follows  that  that  instrument  is  everywhere  and 

8  Barron  v.  Baltimore,  7  Pet.  (32  ,0  Downes  v.  Parshall,  3  Wyo.  425, 
U.  S.)  243,  8  L.  ed.  672.  26  Pac.  994. 

9  United  States  v.  Cruikshanks,  92  »  Gibbons  v.  Ogden,  9  Wheat.  (22 
U.  S.  542,  23  L.  ed.  548,  190  Sup.  Ct.  U.  S.)  1,  6  L.  ed.  23. 

136. 

454 


CONSTITUTIONAL    LAW — FEDERAL    CONSTITUTION      §    291 

at  all  times  potential  in  so  far  as  its  provisions  are  applicable. 
Hence  it  is  that  wherever  a  power  is  given  by  the  Constitution 
and  there  is  a  limitation  imposed  on  the  authority,  such  re- 
striction operates  upon  and  confines  every  action  on  the  sub- 
ject within  its  constitutional  limits.  Consequently,  it  is  im- 
possible to  conceive  that  where  conditions  are  brought  about 
to  which  any  particular  provisions  of  the  Constitution  applies, 
its  controlling  influence  may  be  frustrated  by  the  action  of 
any  or  all  the  departments  of  the  government.  Those  depart- 
ments, when  discharging,  within  the  limits  of  their  consti- 
tutional power,  the  duties  which  rest  on  them,  may  of  course 
deal  with  the  subjects  committed  to  them  in  such  a  way  as  to 
cause  the  matter  dealt  with  to  come  under  the  control  of  pro- 
visions of  the  Constitution  which  may  not  have  been  previously 
applicable.  But  this  does  not  conflict  with  the  doctrine  just 
stated,  or  presuppose  that  the  Constitution  may  or  may  not 
be  applicable  at  the  election  of  any  agency  of  the  government.12 
If  the  Constitution  in  its  grant  of  powers  is  to  be  able  to  carry 
into  full  effect  the  powers  granted,  it  is  equally  imperative 
that  where  prohibition  or  limitation  is  placed  upon  the  powers 
of  Congress,  that  prohibition  or  limitation  should  be  enforced 
in  its  spirit  and  to  its  entiretj^.13 

§291.  Privileges  and  Immunities  of  Citizens  in  the  Sev- 
eral States.  — Corporations  are  not  citizens  within  the  meaning 
of  that  clause  of  the  Constitution  of  the  United  States  which 
provides  that  citizens  of  each  State  shall  be  entitled  to  privi- 
leges and  immunities  of  citizens  in  the  several  States.14    Corpo- 

12  Downes  v.  Bidwell,   182    U.  S.  168,  19  L.  ed.  357.    Sec  §  67,  herein. 

244,   45   L.   ed.    1088,    21    Sup.    Ct.  Compare   Pittsburg,  Cincinnati,  Chi- 

770.  cago  &  St.  Louis  Ry.  Co.  v.  Mont- 

13Fairbank  v.  United  States,   181.  gomery,  152  Ind.  1,  49  N.  E.  582,  9 

U.  S.  283,  45  L.  ed.  862,  21  Sup.  Ct.  Am.  &  Eng.  R.  Cas.  (N.  S.)  792,  69 

648.  L.  R.  A.  875. 

14  Const.    U.     S.,     Art.     IV,     §2,  Corporation  aggregate  cannot  be  a 

subdv.  1;  Blake  v.  McClung,  172  U.  citizen;  and  can  only  litigate  in  Federal 

S.  239,  43  L.  ed.  432,  19  Sup.  Ct.  165,  courts  in  consequence  of  the  charac- 

9  Am.  <fc  Eng.  Corp.  Cas.  (N.  S.)  385;  ter  of   the  individuals  who  compose 

Paul  v.  Virginia,  8  Wall.   (75  U.  S.)  the    body    politic;    which    character 

455 


§    291      CONSTITUTIONAL    LAW— FEDERAL    CONSTITUTION 

rations  are  creatures  of  local  law;  and  the  privileges  and  im- 
munities secured  to  citizens  of  each  State  in  the  several  States 
by  this  clause,  are  those  privileges  and  immunities  which  are 
common  to  the  citizens  of  the  latter  States  under  their  con- 
stitutions and  laws  by  virtue  of  their  being  citizens.  Spec- 
ial privileges  enjoyed  by  citizens  in  their  own  States  are  not 
secured  by  it  in  other  States.15  A  state  statute  is  not  incon- 
sistent with  this  provision  where  its  purpose  is  to  protect  the 
State's  industries  and  the  property  of  its  people,  and  the 
means  employed  to  that  end  do  not  go  beyond  the  necessities 
of  the  case  or  unreasonably  burden  the  exercise  of  constitu- 
tional privileges,  even  though  the  subject  of  legislative  action 
is  a  branch  of  interstate  commerce;  provided  that  Congress 
has  not  acted  in  the  matter  as  involved  in  such  commerce.18 
So  a  specific  tax  may,  under  a  general  tax  law,  be  imposed  upon 
a  foreign  corporation  or  manufacturing  company,  doing  busi- 
ness by  itself  or  its  agents  in  a  State,  where  such  statute  em- 
braces all  like  corporations,  associations,  companies,  etc.,  in 
such  State,  even  though  no  domestic  corporation  with  a  like 
business  exists  in  that  State.17  And  a  statute  which  provides 
for  the  assessment  of  capital  stock  of  a  corporation  of  another 
State  may,  in  so  far  as  it  operates  as  a  discrimination  against 
such  corporation,  constitute  merely  an  incident  to  the  accept- 
ance of  the  franchises  of  such  corporation,  and  come   within 

must    appear  by    the    proper    aver-  by  each  of  the  States  whose  legisla- 

ments  upon   the   record.     Hope  In-  tive  grants  they  accept  as  domestic 

surance  Co.  v.  Boardman,  5  Cranch  corporations.     St.  Louis  &  San  Fran- 

(9  U.  S.),  57,  3  L.  ed.  36.  cisco  Ry.  Co.  v.  James,  161  U.   S. 

The  presumption  that  a  corporation  545,  40  L.  ed.  802,  16  Sup.  Ct.  621. 

is  composed   of   citizens   of  the  State  See  §  67,  herein, 
which   created    it   accompanies   such        15  Paul  v.  Virginia,  8  Wall.  (75  U. 

corporation  when  it  does  business  in  S.)  168,  19  L.  ed.  357. 
another  State,  and  it  may  sue  or  be        ie  Reid  v.  Colorado,  187  U.  S.  137, 

sued  in  the    Federal    courts   in   such  23  Sup.  Ct.  92,  47  L.  ed.   108,  aff'g 

other  State  as  a  citizen  of  the  State  29  Colo.    333,    68   Pac.    228   (a   case 

of  its  original    creation.     That  pre-  of  transportation  of  cattle — diseased 

sumption  of  citizenship  is  one  of  law,  live  stock,  Col.  Sess.  Laws   1885,  p. 

not  to  be  defeated  by  allegation  or  335,  §  2). 

evidence  to  the  contrary.     And  rail-        17  Singer     Manufacturing     Co.     v. 

road    corporations    may    be    treated  Wright,  33  Fed.  121. 

456 


CONSTITUTIONAL    LAW — FEDERAL    CONSTITUTION      §    292 

the  power  of  the  State  to  prescribe  the  conditions  of  the  en- 
joyment of  its  corporate  privileges  and  so  not  conflict  with  the 
above  constitutional  provision.18  Again,  a  State  cannot  im- 
pose upon  a  foreign  insurance  company  as  a  property  condi- 
tion, a  requirement  that  it  shall  be  possessed  of  a  certain 
amount  of  capital  stock  invested  in  a  specified  manner  where 
no  such  condition  is  imposed  upon  domestic  unincorporated 
associations,  firms  or  individuals.19 

§  292.  Same    Subject     Continued — Discrimination — Tax 
Law — Deduction  of  Debts — Creditors  in  Different  States. — 

A  tax  law  of  a  State  may  operate  as  a  denial  of  constitutional 
rights  under  this  clause  as  to  privileges  and  immunities  where 
it  discriminates  between  residents  and  non-residents  in  allowing 
a  deduction  of  debts  to  the  former.20  And  when  the  general 
property  and  assets  of  a  private  corporation,  lawfully  doing 
business  in  a  State,  are  in  the  course  of  administration  in 
its  courts,  creditors,  who  are  citizens  of  other  States,  are  en- 
titled, under  the  Federal  Constitution,  to  stand  in  all  respects 
upon  the  same  plane  with  creditors  of  like  class  who  are 
citizens  of  such  State,  and  cannot  be  denied  equality  of  right 
merely  because  they  do  not  reside  in  that  State,  but  are  citi- 
zens residing  in  other  States.21    In  another  case  in  the  Federal 

18  State  v.  Travelers'  Ins.  Co.,  73  business,  and  purchase,  hold  and 
Conn.  255,  47  Atl.  299.  convey  real  and  personal  property  in 

19  State,  Hoadlcy,  v.  Florida  Ins.  this  State, "  provided  that  corpora- 
Commrs.,  37  Fla.  564,  20  So.  772,  33  tions  organized  under  the  laws  of 
L.  R.  A.  288.  other  Stales  and  countries,  for  pur- 

20  Sprague  v.  Fletcher,  69  Vt.  69,  poses  named  in  the  act,  might  carry 
37  Atl.  239,  37  L.  It.  A.  840.  on    within    that    State    the   business 

21  Blake  v.  McClung,  176  U.  S.  59,  authorized  by  their  respective  char- 
20  Sup.  Ct.  307,  44  L.  ed.  371;  Blake  ters,  but  that  "creditors  who  may  be 
v.  McClung,  172  F.  S.  239,  43  L.  ed.  residents  of  this  State  shall  have  a 
432,  19  Sup.  Ct.  165,  9  Am.  &  Eng.  priority  in  the  distribution  of  assets, 
( 'orp.  Cas.  (N.  S.)  385.  Tin's  case  was  or  subjection  of  the  same,  or  any 
as  follows:  Chapter  31,  acts  Tennessee  part  thereof,  to  the  payment  of  debts 
1877,  entitled:  "An  act  to  declare  the  over  all  simple  contract  creditors, 
terms  on  which  foreign  corporations  being  residents  of  any  other  country 
organized  for  mining  or  manufac-  or  countries,  and  also  over  mort- 
turing  purposes  may  carry  on   their  gage   or  judgment  creditors,   for  all 

457 


§   292     CONSTITUTIONAL   LAW — FEDERAL   CONSTITUTION 

Supreme  Court  bills  were  filed  in  Tennessee  by  the  American 
National  Bank  and  others  against  the  Carnegie  Land  Com- 
pany, a  Virginia  corporation,  doing  business  in  Tennessee 
under  the  provisions  of  the  enactment  upon  which  the  above 
ruling  was  made ; 22  and  also  against  various  creditors  of  that 
company.  The  prayer  of  the  bill  was  that  it  might  be  taken 
as  a  general  creditors'  bill;  and  it  was  alleged  that  the  company 
was  insolvent,  having  a  large  amount  of  property  in  the  State, 
which  it  had  assigned  for  the  benefit  of  its  creditors,  without 
preferences,  which  was  in  disregard  of  the  statute  of  the  State, 
that  a  receiver  should  be  appointed,  the  assets  marshaled  and 
the  creditors  paid  according  to  law.  The  company  answered 
denying  that  it  was  insolvent  and  claimed  that  the  assign- 
ment should  be  held  valid,  and  the  trust  administered  by  the 
assignees.  During  the  pendency  of  the  suit,  S.  and  C,  New 
York  creditors,  filed  a  bill,  setting  up  that  nearly  all  the  as- 

debts,    engagements    and    contracts  upon  which  foreign  corporations  may 

which  were  made  or  owing  by  the  enter   its   territory   for  purposes  of 

said    corporations    previous    to    the  business.    It  was  also  held  that  there 

filing  and  registration  of  such  valid  was  no  denial  of  equal  protection  of 

mortgages,  or  the  rendition  of  such  the  laws. 

valid  judgments."  It  was  held,  in  "A  local  rule  of  law,  which  has 
addition  to  the  point  above  stated  in  been  maintained  by  the  courts  of  a 
the  text,  that  as  the  litigation  pro-  State,  to  the  effect  that  a  foreign 
ceeded  on  the  theory  that  plaintiffs  assignment  by  an  insolvent  will  not 
in  error  were  citizens  of  Ohio,  where  operate  on  property  in  the  State,  so 
they  resided,  did  business  and  had  as  to  defeat  an  attachment  made  by  a 
offices,  that  question  could  not  now  resident,  is  expressly  annulled  by 
be  considered;  and  as  the  manifest  Blake  v.  McClung,  172  U.  S.  239,  19 
purpose  of  the  act  was  to  give  to  all  Sup.  Ct.  165,  43  L.  ed.  432,  9  Am.  & 
Tennessee  creditors  priority  over  all  Eng.  Corp.  Cas.  (N.  S.)  385,  in  so  far 
creditors  residing  out  of  that  State,  as  it  discriminates  against  citizens  of 
without  reference  to  the  question  other  States,  and  it  cannot  be  pre- 
whether  they  were  citizens  or  only  sumed  that  the  rule,  as  necessarily 
residents  of  some  other  State  or  limited  by  Blake  v.  McClung,  would 
country,  the  act  must  be  held  to  in-  be  reaffirmed  by  local  courts.  There- 
fringe  rights  secured  to  the  plaintiffs  fore  it  is  held  that  it  can  no  longer  be 
in  error,  citizens  of  Ohio,  by  the  pro-  accepted  in  any  part."  Syllabus  to 
visions  of  the  Constitution  stated  in  Belfast  Savings  Bk.  v.  Stowe,  92 
the  text  in  this  section,  although,  Fed.  102,  103,  104. 
generally  speaking,  the  State  has  "  See  last  preceding  note  herein. 
power    to    prescribe    the    conditions 

458 


CONSTITUTIONAL   LAW — FEDERAL   CONSTITUTION      §   292 

sets,  if  not  all  of  them  in  the  hands  of  the  assignees  of  the  com- 
pany, and  sought  to  be  impounded  by  the  bill  filed  by  the  bank, 
were  covered  and  conveyed  to  S.,  as  trustee,  and  that  C.  was 
entitled  to  priority  over  all  other  creditors  of  the  defendant  in 
the  appropriation  of  the  assets  covered  by  the  deed  of  trust  to 
S.  They  asked  for  leave  to  file  that  bill  as  a  general  bill  against 
the  land  company,  or,  if  that  could  not  be  done,  that  they 
might  file  it  in  the  case  of  the  bank  against  the  land  company, 
as  a  petition  in  the  nature  of  a  cross  bill  against  that  company. 
Other  proceedings  took  place  which  are  set  forth  in  detail  in 
the  statement  of  the  case.  They  ended  in  the  consolidation  of 
the  various  proceedings  into  one  action  and  a  reference  to  a 
master  to  take  proof  of  all  the  facts.  The  master  made  his  re- 
port, upon  which  a  final  decree  was  entered.  It  was  decreed 
that  the  land  company,  by  its  deed  of  general  assignment,  of 
June  3,  1893,  in  making  disposition  therein  for  the  payment  of 
its  creditors,  without  any  preferences,  attempted  to  defeat 
the  preferences  given  by  law  to  creditors  residents  of  Tennessee, 
over  non-resident  creditors  and  mortgagees,  whose  mortgages 
were  made  subsequent  to  the  creation  of  the  debts  due  resident 
creditors,  and  that  such  deed  was  fraudulent  in  law,  and  void; 
that  the  making  of  the  deed  was  an  act  of  insolvency  by  the 
land  company,  and  that  the  bill  filed  by  the  bank  was  properly 
filed,  and  should  be  sustained  as  a  general  creditors'  bill,  and 
that  the  assets  of  the  company  under  the  jurisdiction  of  the 
court  were  subject  to  distribution  under  the  law  relating  to 
foreign  corporations  doing  business  in  Tennessee,  and  as  such 
should  be  decreed  in  the  action  then  pending.  The  decree 
further  adjudged  that  C.  was  a  bona  fide  holder  of  the  bonds 
mentioned  in  his  bill  and  that  he  was  entitled  to  recover 
thereon  as  provided  for  in  the  decree,  but  subject  to  the  pay- 
ment of  debts  due  residents  of  Tennessee  prior  to  the  regis- 
tration of  such  mortgage.  It  was  also  decreed  that  the  Trav- 
elers' Insurance  Company  by  its  mortgage  acquired  a  valid 
lien  upon  the  property  covered  by  it,  subordinate,  however, 
to  debts  due  residents  of  Tennessee  contracted  prior  to  the 
registration  thereof,  and  also  subject  to  some  other  liabilities 

459 


§    293      CONSTITUTIONAL    LAW — FEDERAL    CONSTITUTION 

of  the  land  company.  The  case  was  taken  to  the  Court  of 
Chancery  Appeals,  which  modified  in  some  particulars  the 
decree  of  the  chancellor,  and  after  such  modification  it  was 
affirmed.  Upon  writ  of  error  from  the  Supreme  Court  the 
case  was  there  heard,  and  that  court  held  that  the  statute  in 
question,  providing  for  the  distribution  of  assets  of  foreign 
corporations  doing  business  in  that  State,  was  constitutional, 
and  was  not  in  contravention  of  any  provision  of  the  Consti- 
tution of  the  United  States.  The  decree  of  the  Court  of  Appeals 
was,  after  modifying  it  in  some  respects,  affirmed.  The  case 
was  then  brought  up  on  writ  of  error.  It  was  held,  that  on 
an  appeal  from  a  state  court  the  plaintiff  in  error  in  the  Federal 
court  must  show  that  he  himself  raised  the  question  in  the  state 
court  which  he  argues  there,  and  it  would  not  aid  him  to  show 
that  someone  else  had  raised  it  in  the  state  court,  while  he 
failed  to  do  so;  but  if  he  raised  it  in  the  Supreme  Court  of  the 
State,  it  was  sufficient.  It  was  also  decided  that  the  allegation, 
in  the  case  of  C,  that  he  was  a  resident  of  New  York  was  a 
sufficient  allegation  of  citizenship,  no  question  having  been 
made  on  that  point  in  the  courts  below.  It  was  further  de- 
termined that  a  Tennessee  general  creditor  had  the  same  right 
of  preference  as  against  a  resident  mortgagee  that  he  had 
against  a  non-resident,  and  the  same  burden  that  was  placed 
upon  non-resident  mortgagees  and  judgment  creditors  was 
by  the  statute  placed  upon  resident  mortgagees  and  judgment 
creditors;  and  that  there  was  no  foundation  for  the  claim 
made,  on  behalf  of  C,  that  section  five  of  the  Tennessee  act 
of  1877,  violated  section  one  of  the  Fourteenth  Amendment 
of  the  Constitution  of  the  United  States  in  that  it  deprived 
the  non-resident  mortgagee  of  his  property.23 

§293.  Same  Subject — Actions — Statute  of  Limitations. — 

The  right  to  sue  and  defend  in  the  courts  of  the  States  is  one 
of  the  privileges  and  immunities  comprehended  by  section  2 

23  Sully  v.  American  Nat.  Bk.,  178    184  U.  S.  334,  339,  46  L.  ed.  573,  22 
U.  S.  289,  44  L.  ed.  1072,  20  Sup.  Ct.    Sup.  Ct.  391. 
935,  cited  in  Rothschild  v.   Knight, 

460 


CONSTITUTIONAL   LAW — FEDERAL   CONSTITUTION      §   294 

of  article  IV  of  the  Constitution  of  the  United  States,  and 
equality  of  treatment  in  regard  thereto  does  not  depend  upon 
comity  between  the  States,  but  is  granted  and  protected  by 
that  provision  in  the  Constitution;  subject,  however,  to  the 
restrictions  of  that  instrument  that  the  limitations  imposed 
by  a  State  must  operate  in  the  same  way  on  its  own  citizens 
and  on  those  of  other  States.  The  State's  own  policy  may 
determine  the  jurisdiction  of  its  courts  and  the  character  of 
its  controversies  which  shall  be  heard  therein.  A  statute, 
therefore,  providing  that  no  action  can  be  maintained  in  the 
courts  of  a  State  for  wrongful  death  occurring  in  another 
State  except  where  the  deceased  was  a  citizen  of  the  former 
State,  the  restriction  operating  equally  upon  representatives 
of  the  deceased  whether  they  are  citizens  of  the  State  where 
the  statute  was  enacted  or  of  other  States,  does  not  violate 
the  privilege  and  immunity  provision  of  the  Federal  Constitu- 
tion.24 A  statute  has  also  been  held  constitutional  even 
though  it  prohibits  certain  actions  between  foreign  corpora- 
tions; 25  although  a  non-resident's  right  to  maintain  an  action 
in  a  state  court  is  not  one  of  the  privileges  guaranteed  by  this 
provision  of  the  Federal  Constitution.26  But  a  provision  in  a 
statute  to  the  effect  that  when  the  defendant  is  out  of  the 
State,  the  statute  of  limitations  shall  not  run  against  the 
plaintiff,  if  the  latter  resides  in  the  State,  but  shall  if  he  re- 
sides out  of  the  State,  is  not  repugnant  to  this  constitutional 
provision  as  to  privileges  and  immunities  of  citizens  in  the 
several  States.27 

§  294.  The  Fourteenth  Amendment  —  Generally.  —The 
Fourteenth  Amendment  is  prohibitory  upon  the  States  only, 
and  the  legislation  authorized  to  be  adopted  by  Congress  for 

"Chambers  v.  Baltimore  &  Ohio  741,  16  C.  P.  225,  19  N.  E.  625,  2 

Ry.  Co.,  207    U.  S.   142,    aff'g    73  L.  R.  A.  636,  aff'g  1  N.  Y.  Supp.  418, 

Ohio,  1.  15   C.    P.   88,   56  Sup.   Ct.    108,    16 

25  Anglo-American  Provision  Co.  v.  N.  Y.  St.  R.  583,  which  reverses  16 

Davis  Provision  Co.,  63  N.  Y.  Supp.  N.   Y.   St.   R.   871.     See   §§  66,  67, 

987,  50  App.  Div.  273.  herein. 

29  Robinson  v.  Oceanic  Steam  Nav.        "  Chemung  Canal  Bank  v.  Lowery, 

Co.,  112  N.  Y.  315,  20  N.  Y.  St.  R.  93  U.  S.  72,  23  L.  ed.  806. 

161 


§   294     CONSTITUTIONAL   LAW — FEDERAL   CONSTITUTION 

enforcing  it  is  not  direct  legislation  on  the  matter  respecting 
which  the  States  are  prohibited  from  making  or  enforcing 
certain  laws,  or  doing  certain  acts,  but  is  corrective  legislation, 
such  as  may  be  necessary  or  proper  for  counteracting  and 
redressing  the  effect  of  such  laws  or  acts.28  The  prohibitions 
of  this  amendment  refer  to  all  the  instrumentalities  of  the  State, 
to  its  legislative,  executive  and  judicial  authorities,  and  who- 
ever, by  virtue  of  a  public  position  under  a  state  government, 
deprives  another  of  any  right  protected  by  that  amendment 
against  deprivation  by  the  State,  violates  the  constitutional 
inhibition ;  and  as  he  acts  in  the  State's  name  and  is  clothed 
with  the  State's  power,  his  act  is  that  of  the  State.29    The  mere 

38  Civil  Rights  Cases,  109  U.  S.  3,  that,  in  passing  upon  the  validity  of 

27  L.  ed.  835,  3  Sup.  Ct.  18.  state  legislation  under  it,  this  court 

"It  is  well  settled  that  the  pro-  has  not  failed  to  recognize  the  fact 

visions  of  the    Fourteenth   Amend-  that  the  law  is,  to  a  certain  extent,  a 

ment  which  prohibit    a  State  from  progressive    science;    that    in    some 

depriving  any  person  of  life,  liberty  States  methods  of  procedure  which, 

or  property  without  due  process  of  at   the   time   the    Constitution    was 

law,  or  from  denying  to  any  person  adopted,   were   deemed  essential  to 

within  its  jurisdiction  the  equal  pro-  the  protection  and  safety  of  the  peo- 

tection  of  the  laws,  add  nothing  to  pie,  or  to  the  liberty  of  the    citizens 

the  rights  of  one  citizen  as  against  have  been  found  to  be  no  longer  nec- 

another,  but  are  limitations  upon  the  essary;  that  restrictions  which  had, 

powers  of  the  State,   and  guaranty  formerly  been  laid  upon  the  conduct 

immunity  from  state  law  and  state  of  individuals  or  classes  had  proved 

acts    invading    the    privileges     and  detrimental   to   their   interests;   and 

rights  stated  in  the  amendment;  that  other  classes  of  persons,  particularly 

while  the  government  of  the  United  those  engaged  in  dangerous  or  un- 

States   is,    within    the    scope    of   its  healthy    employments,     have    been 

powers,  supreme,  it  can  neither  grant  found  to  be  in  need  of  additional  pro- 

nor  secure  to  its  citizens  rights  or  tection;  but  this  power  of  change  is 

privileges  which  are  not  expressly  or  limited  by  the  fundamental  principles 

by  implication  placed  under  its  juris-  laid    down    in    the    Constitution,    to 

diction   by   the   Constitution   of   the  which  each  member  of  the  Union  is 

United  States;  and  that  rights  and  bound  to  accede  as  a  condition  of  its 

privileges  not  so   placed  within   its  admission    as   a   State.      Holden    v. 

jurisdiction  are  left  to  the  exclusive  Hardy,  169  U.  S.  366,  42  L.  ed.  780, 

protection  of  the  States."     Green  v.  18  Sup.  Ct.  383. 
Elbert,  63  Fed.  309.  M  Chicago,    Burlington    &   Quincy 

Ths  cases  arising  under  the  Four-  Rd.  Co.  v.  Chicago,  166  U.  S.  226,  41 

teenth    Amendment   are   examined  in  L.  ed.  979,  17  Sup.  Ct.  581. 
detail,    and    are    held    to    demonstrate 

462 


CONSTITUTIONAL    LAW — FEDERAL    CONSTITUTION      §   295 

fact  of  classification  is  not  sufficient  to  relieve  a  statute  from 
the  reach  of  the  equality  clause  of  the  Fourteenth  Amendment, 
and  in  all  cases  it  must  not  only  appear  that  a  classification 
has  been  made,  but  also  that  it  is  based  upon  some  reasonable 
ground,  something  which  bears  a  just  and  proper  relation  to 
the  attempted  classification,  and  is  not  a  mere  arbitrary  se- 
lection.30 Again,  due  process  of  law  and  the  equal  protection 
of  the  laws  are  secured  if  the  laws  operate  on  all  alike  and  do 
not  subject  the  individual  to  an  arbitrary  exercise  of  the  powers 
of  government; 31  nor  is  there  any  unjust  discrimination,  or 
any  denial  of  the  equal  protection  of  the  laws,  in  regulations 
regarding  railroads,  which  are  applicable  to  all  alike.32  And 
requiring  the  burden  of  a  public  service  by  a  corporation,  in 
consequence  of  its  existence  and  of  the  exercise  of  privileges 
obtained  at  its  request,  to  be  borne  by  it,  is  neither  denying 
to  it  the  equal  protection  of  the  laws,  nor  making  any  unjust 
discrimination  against  it.33  Corporations  are  persons  within 
the  meaning  of  the  clauses  in  the  Fourteenth  Amendment  to 
the  constitution  concerning  the  deprivation  of  property,  and 
concerning  the  equal  protection  of  the  laws,  and  are  not  to  be 
denied  any  of  the  rights  therein  guaranteed.34 

§295.  Same  Subject — Police  Power.  —  It  is  elementary 
that  the  Fourteenth  Amendment  does  not  deprive  the  States 
of  their  police  power  over  subjects  within  their  jurisdiction.35 

30  Gulf,  Colorado  &  Santa  Fe  Ry.  585,    9   Sup.    Ct.    207;    McGuire   v. 

Co.  v.  Ellis,  165  U.  S.  150,  41  L.  ed.  Chicago,    Burlington    &    Quincy    R. 

666,  17  Sup.  Ct.  255.  Co.,  131  Iowa,  340,  350,  108  N.  W. 

"  Duncan  v.  Missouri,   152  U.  S.  902.    See  §  66,  herein. 

377,  38  L.  ed.  485,  14  Sup.  Ct.  570.  "  Cummings    v.    Reading    School 

3J  New  York  &  New  England  Rd.  District,     198    U.    S.    458,     49     L. 

Co.  v.  Bristol,  151  U.  S.  556,  14  Sup.  ed.  1125,  25  Sup.  Ct.  721;  New  Or- 

Ct.  437,  38  L.  ed.  269.  leans    Gas    Light    Co.    v.    Drainage 

33  Charlotte,  Columbia  &  Augusta  Commissioners,  197  U.  S.  453,  25 
Rd.  Co.  v.  Gibbes,  142  U.  S.  386,  12  Sup.  Ct.  471,  49  L.  ed.  831;  Fischer  v. 
Sup.  Ct.  255,  35  L.  ed.  1051.  See  St.  Louis,  194  U.  S.  361,  24  Sup.  Ct. 
New  York  v.  Squire,  145  U.  S.  175,  673,  48  L.  ed.  1018;  Powell  v.  Penn- 
36  L.  ed.  666,  12  Sup.  Ct.  880.  sylvania,  127  U.  S.  678,  32  L.  ed.  253, 

34  Minneapolis  &  St.  Louis  Ry.  Co.  8  Sup.  Ct.  992;  Barbier  v.  Connolly, 
v.  Beckwith,  129  U.  S.  26,  32  L.  ed.  113  U.  S.  27,  28  L.  ed.  923,  5  Sup.  Ct. 

463 


§   295      CONSTITUTIONAL   LAW — FEDERAL    CONSTITUTION 

So  a  State  has  power  to  regulate  grain  warehouses;36  grain 
elevators; 37  the  consolidation  of  common  carrier  corpora- 
tions; 38  the  recovery  of  damages  against  a  railroad  for  killing 
live  stock;39  to  provide  for  the  extinction  of  grade  crossings 
as  a  menace  to  public  safety; 40  for  the  regulation  of  carriers 
of  electricity,  or  electrical  conductors, 41  for  the  regulation  of 
slaughter  houses  of  a  corporation; 42  and  in  general  a  State 
has  the  same  undeniable  and  unlimited  jurisdiction  over  all 
persons  and  things,  within  its  territorial  limits,  as  any  foreign 
nation,  when  that  jurisdiction  is  not  surrendered,  or  restrained 
by  the  Constitution  of  the  United  States;  and  all  those  powers 
which  relate  to  merely  municipal  legislation,  or  which  may 
more  properly  be  called  internal  police,  are  not  restrained,  so 
that  in  relation  to  these  the  authority  of  a  State  is  complete, 
unqualified  and  exclusive.43  Again,  it  is  an  appropriate  ex- 
ercise of  the  police  power  of  the  State  to  regulate  the  use  and 
enjoyment  of  mining  properties,  and  mine  owners  are  not  de- 
prived of  their  property,  privileges  or  immunities  without 
due  process  of  law  or  denied  the  equal  protection  of  the  laws 
by  the  Illinois  mining  statute  of  1899,  which  requires  the  em- 
ployment of  only  licensed  mine  managers  and  mine  examiners, 
and  imposes  upon  the  mine  owners  liability  for  the  willful 
failure  of  the  manager  and  examiner  to  furnish  a  reasonably 
safe  place  for  the  workmen.  It  is  also  within  the  power  of  the 
State  to  change  or  modify,  in  accord  with  its  conceptions  of 
public  policy,  the  principles  of  the  common  law  in  regard  to 
the  relation  of  master  and  servant;  and,  in  cases  within  the 

357.    See  Sprigg  v.  Garrett  Park,  89  39  Minneapolis  &  St.  Louis  R.  Co.  v. 

Md.  406,  43  Atl.  813;  State  v.  Jack-  Beckwith,  129  U.  S.  26,  32  L.  ed.  585, 

man,  69  N.  H.  318,  41  Atl.  347,  42  9  Sup.  Ct.  207. 

L.  R.  A.  438,  3  Chic.  L.  J.  Wkly.  551.  40  New  York  &  New  England  Rd. 

See  §  149,  herein.  Co.  v.  Bristol,  151  U.  S.  556,  14  Sup. 

36  Brass  v.  Stoeser,  153  U.  S.  391,  Ct.  437,  38  L.  ed.  269. 

38  L.  ed.  — ,  14  Sup.  Ct.  — .  41  New  York  v.  Squire,  145  U.  S. 

37  Budd  v.  New  York,   143  U.  S.  175,  12  Sup.  Ct.  880,  36  L.  ed.  666. 
517,  36  L.  ed.  247,  12  Sup.  Ct.  468.  42  Slaughter-House  Cases,  16  Wall. 

38  Louisville  &  Nashville  Rd.  Co.  v.  (83  U.  S.)  36,  21  L.  ed.  394. 
Kentucky,  161  U.  S.  677,  40  L.  ed.  43  New  York  v.  Milne,  11  Pet.  (36 
849,  16  Sup.  Ct.  714.  U.  S.)  102,  9  L.  ed.  648. 

464 


CONSTITUTIONAL    LAW — FEDERAL    CONSTITUTION      §§    296,   297 

proper  scope  of  the  police  power,  to  impose  upon  the  master 
liability  for  the  willful  act  of  his  employee.44  But  none  of  the 
large  police  powers  of  a  State  can  be  exercised  to  such  an  ex- 
tent as  to  work  a  practical  assumption  of  the  powers  conferred 
by  the  Constitution  on  Congress,  and  since  the  range  of  the 
State's  police  power  comes  very  near  to  the  field  committed 
by  the  Constitution  to  Congress,  the  courts  should  guard 
vigilantly  against  any  needless  intrusion.45 

§  296.  Privileges  and  Immunities  of  Citizens  of  the  Uni- 
ted States.  — The  privileges  and  immunities  of  citizens  of  the 
United  States  are  those  which  arise  out  of  the  nature  and 
essential  character  of  the  national  government,  the  provisions 
of  its  Constitution  or  its  laws  and  treaties  made  in  pursuance 
thereof  and  it  is  these  which  are  placed  under  the  protection 
of  Congress  by  this  amendment.46  These  privileges  or  immuni- 
ties are  not  abridged  by  a  state  enactment  prohibiting  monopo- 
lies, etc.,  for  certain  purposes  upon  penalty  of  a  revocation 
of  a  foreign  corporation's  certificate  of  authority  in  case  of  a 
violation  of  the  statute.47  Nor  does  a  statute  violate  this 
clause  as  to  privileges  and  immunities  where  it  imposes  a 
liability  upon  railroad  companies  for  injuries  by  fire  communi- 
cated from  its  right  of  way.48  A  corporation  is  not  a  citizen 
within  the  meaning  of  this  clause  and  has  not  the  privileges 
and  immunities  secured  to  citizens  against  state  legislation.49 

§  297.  Due  Process  of  Law. — Due  process  of  law  within  the 
meaning  of  the  Constitution,  is  secured  when  the  laws  operate 

44  Wilmington  Star  Mining  Co.  v.  991,  106  N.  W.  868.  But  compare 
Fulton,  205  U.  S.  60,  51  L.  ed.  — ,  Gage  v.  State,  24  Ohio  Cir.  Ct.  R.  724. 
27  Sup.  Ct.  — .  iS  Brown  v.  Carolina  Midland  Ry. 

«  Railroad  Co.  v.  Husen,  95  U.  S.  Co.,  67  S.  C.  481,  46  S.  E.  283;  Code 

465,  24  L.  ed.  527.  Laws  1902,  §  2135. 

45  Slaughter-House  Cases,  10  Wall.  40  Western  Turf  Association  v. 
(77  U.  S.)  273,  19  L.  ed.  915;  Duncan  Greenberg,  204  U.  S.  359,  51  L.  ed. 
v.  Missouri,  152  U.  S.  377,  14  Sup.  Ct.  — ,  27  Sup.  Ct.  — ;  Orient  Ins.  Co. 
570,  38  L.  ed.  485.  v.  Daggs,  172  U.  S.  557,  19  Sup.  Ct. 

47  Attorney  General  v.  A.  Booth  &  281,  43  L.  ed.  552,  28  Ins.  L.  J.  97, 
Co.,  143  Mich.  89,  12  Det.  Leg.  N.    aff'g  136  Mo.  382,  35  L.  R.  A.  227, 

30  465 


§  297     CONSTITUTIONAL  LAW — FEDERAL   CONSTITUTION 

upon  all  alike,  and  no  one  is  subject  to  partial  or  arbitrary 
exercise  of  powers  of  government.50  Rights  of  property,  and 
to  a  reasonable  compensation  for  its  use,  created  by  the  com- 
mon law,  cannot  be  taken  away  without  due  process;  but  the 
law  itself,  as  a  rule  of  conduct,  may,  unless  constitutional 
limitations  forbid,  be  changed  at  the  will  of  the  legislature. 
The  great  office  of  statutes  is  to  remedy  defects  in  the  common 
law  as  they  are  developed,  and  to  adapt  it  to  the  changes  of 
time  and  circumstances.  But  down  to  the  time  of  the  adop- 
tion of  the  Fourteenth  Amendment  it  was  not  supposed  that 
statutes  regulating  the  use  of,  or  even  the  price  of  the  use,  of 
private  property  necessarily  deprived  the  owner  of  his  property 
without  due  process  of  law.  Under  some  circumstances  they 
may,  but  not  under  all.  The  amendment  does  not  change  the 
law  in  this  particular;  it  simply  prevents  the  States  from  doing 
that  which  will  operate  as  such  deprivation.51  In  a  Federal 
case,  the  court  suggests  the  difficulty  and  danger  of  attempting 
an  authoritative  definition  of  what  it  is  for  a  State  to  deprive 
a  person  of  life,  liberty  or  property  without  due  process  of 
law,  within  the  meaning  of  the  Fourteenth  Amendment;  and 
holds  that  the  annunciation  of  the  principles  which  govern  each 
case  as  it  arises  is  the  better  mode  of  arriving  at  a  sound 
definition.  In  this  case,  the  court  holds  that  it  is  due  process 
of  law,  within  the  meaning  of  the  Constitution,  when  the  stat- 
ute requires  that  such  a  burden  as  the  fixing  of  a  tax  or  assess- 
ment before  it  becomes  effectual,  must  be  submitted  to  a  court 
of  justice,  with  notice  to  the  owners  of  the  property,  all  of 
whom  have  the  right  to  appear  and  contest  the  assessment. 
But  by  prior  decisions  due  process  of  law  does  not  in  all  cases 

38  S.  W.  85,  26  Ins.  L.  J.  67.     See  cases  upon  the  construction  of  the 

§  67,  herein.  due  process  of  law  phrase).     See  also 

50  Caldwell  v.  Texas,  137  U.  S.  692,  Davidson  v.  New  Orleans,  96  U.  S. 

34    L.    ed.    816,    11    Sup.    Ct.    224.  97,  24  L.  ed.  616,  as  to  the  origin  and 

Examine  Bartlett  v.  Wilson,  59  Vt.  history  of  this  provision. 
23,  8  Atl.  321,  4  N.  Eng.  Rep.  119.        S1  Munn  v.  Illinois,  94  U.  S.  113, 

See    Marchant    v.    Pennsylvania    R.  24    L.    ed.    77.      Examine    State   v. 

Co.,  153  U.  S.  380,  38  L.  ed.  751,  14  Sponangle,  45  W.  Va.  415,  43  L.  R.  A. 

Sup.  Ct.   894   (for  review  of  leading  727,  32  S.  E.  283. 

466 


CONSTITUTIONAL   LAW — FEDERAL   CONSTITUTION      §   298 

require  a  resort  to  a  court  of  justice  to  assert  the  rights  of  the 
public  against  the  individual,  or  to  impose  burdens  upon  his 
property  for  the  public  use.52  And  neither  the  corporate 
agency  by  which  the  work  is  done,  the  excessive  price  which 
the  statute  allows  therefor,  nor  the  relative  importance  of 
the  work  to  the  value  of  the  land  assessed,  nor  the  fact  that 
the  assessment  is  made  before  the  work  is  done,  nor  that  the 
assessment  is  unequal  as  regards  the  benefits  conferred,  nor 
that  personal  judgments  are  rendered  for  the  amount  assessed, 
are  matters  in  which  the  state  authorities  are  controlled  by 
the  Federal  Constitution.53  In  order,  however,  to  constitute 
a  violation  of  the  constitutional  provision  against  depriving 
a  person  of  his  own  property  without  due  process  of  law,  it 
should  appear  that  such  person  has  a  property  in  the  particu- 
lar thing  of  which  he  is  alleged  to  have  been  deprived.54  Again, 
restraints  upon  the  proper  exercise  of  the  police  power  of  the 
States  are  not  imposed  by  this  clause  of  the  Federal  Constitu- 
tion.55 

§298.  Same  Subject  Continued. — Regulations  of  public 
stockyards  and  their  charges,  when  not  unreasonable  and 
unjust  as  depriving  their  owners  of  a  reasonable  return  on  the 
money  invested,  do  not  constitute  a  taking  of  private  property 
without  due  process  of  law  or  just  compensation.56  So  gas 
rates  may  be  regulated  without  infringing  upon  the  due  process 
of  law  provision  of  the  Constitution  where  such  rates,  so  fixed, 
allow  a  reasonable  profit  on  the  actual  value  of  the  investment.57 

82  Davidson  v.  New  Orleans,  96  "  Sprigg  v.  Garrett  Park,  89  Md. 
U.  S.  97,  24  L.  ed.  616,  citing  Mur-  406,  411,  43  Atl.  813.  See  §  138, 
ray's  Lessee  et  al.  v.  Hoboken  Land    herein. 

&   Improvement  Co.,    18  How.    (59       "  Itatcliff  v.  Wichita  Union  Stock- 
U.  S.)  272,  15  L.  ed.  372;   McMillan   yards  Co.,  74  Kan.  1,  86  Pac.  150; 
v.  Anderson,  95  U.  S.  37,  24  L.  ed.    Laws  1903,  p.  735,  c.  487. 
335.  "  Richman    v.    Consolidated    Gas 

"  Davidson  v.  New  Orleans,  96  Co.  of  N.  Y.,  100  N.  Y.  Supp.  81,  114 
U.  S.  97,  24  L.  ed.  616.  App.  Div.  216,  78  N.  E.  871,  aff'd  186 

i*  New  Orleans  v.  New  Orleans  N.  Y.  209;  Grossman  v.  Same,  100 
Water  Works  Co.,  142  U.  S.  79,  35  N.  Y.  Supp.  100,  114  App.  Div.  242, 
L.  ed.  943,  12  Sup.  Ct.  142.  aff'd  186  N.  Y.  541  (mem.). 

467 


§  298     CONSTITUTIONAL   LAW — FEDERAL   CONSTITUTION 

Nor  is  a  person  deprived  of  property  without  due  process  of 
law  by  a  statute  which  makes  water  rates  a  charge  upon  lands 
in  a  municipality  prior  to  the  lien  of  all  incumbrances.58 
Nor  is  the  exaction  of  tolls  for  the  use  of  an  improved  water- 
way within  such  prohibition  of  the  Constitution.59  The  repeal 
of  a  statute  providing  that  a  municipal  government  may  set 
off  the  taxes  of  a  water  company  against  the  company's  rates 
for  water,  and  the  substitution  of  a  different  scheme  of  pay- 
ment in  its  place,  does  not  deprive  the  municipality  of  its 
property  without  due  process  of  law,  in  the  sense  in  which  the 
word  "property"  is  used  in  the  Constitution  of  the  United 
States.60  Nor  does  a  state  statute,  reducing  the  rate  of  in- 
terest upon  all  judgments  obtained  within  the  courts  of  the 
State,  when  applied  to  one  obtained  previous  to  its  passage, 
deprive  the  judgment  creditor  of  his  property  without  due 
process  of  law,  in  violation  of  the  provisions  of  section  one  of 
the  Fourteenth  Amendment.61  Again,  the  right  of  a  railroad 
company  to  maintain  a  tunnel  under  a  navigable  river  is  sub- 
ject to  the  paramount  public  right  of  navigation,  and  where 
it  has  been  constructed  under  municipal  ordinance  and  a  state 
law  that  it  shall  not  interrupt  navigation,  the  duty  of  not 
obstructing  navigation  is  a  continuing  one;  and,  if  the  in- 
creased demands  of  navigation  at  any  time  require  a  deeper 
channel  than  when  the  tunnel  was  originally  constructed,  it  is 
within  the  power  of  the  municipality  to  compel  the  railroad 
company,  at  the  latter's  own  expense,  to  either  remove  the 
tunnel  or  lower  it  to  conform  with  the  necessities  of  commerce 
and  to  a  rule  established  by  act  of  Congress ;  and  such  action  of 
the  municipality  is  not  unconstitutional,  and  does  not  amount 
either  to  taking  the  property  for  public  use  without  compen- 
sation, or  depriving  the  company  of  its  property  without  due 


58  Provident  Inst,  for  Savings  v.  eo  New  Orleans  v.  New  Orleans 
Jersey  City,  113  U.  S.  506,  28  L.  ed.  Water  Works  Co.,  142  U.  S.  79,  12 
— ,  5  Sup.  Ct.  — .  Sup.  Ct.  142,  35  L.  ed.  943. 

59  Sands  v.  Manistee  River  Imp.  61  Morley  v.  Lake  Shore  &  M.  S.  Ry. 
Co.,  123  U.  S.  288,  8  Sup.  Ct.  113,  31  Co.,  146  U.  S.  162,  36  L.  ed.  925,  13 
L.  ed.  149.  Sup.  Ct.  54. 

468 


CONSTITUTIONAL   LAW — FEDERAL   CONSTITUTION      §   298 

process  of  law.62  Nor  does  such  a  deprivation  of  property 
arise  under  a  statute  empowering  a  city  to  require  the  removal 
of  telephone  wires  to  underground  conduits,  as  the  enactment 
is  within  the  police  power  of  the  State.63  But  a  municipal 
corporation  with  charter  authority  to  permit  the  use  of  its 
streets,  to  control  them,  and  to  regulate  the  construction  of 
railroad  tracks  thereon  acts,  in  resuming  control  of  such  streets, 
as  agent  of  the  State  within  the  above  constitutional  pro- 
vision that  no  State  shall  deprive  any  person  of  property  with- 
out due  process  of  law.64  The  construction,  however,  and 
maintenance  by  a  city  of  its  own  waterworks  plant  does  not 

62  West  Chicago  Street  Railroad  39  Am.  &  Eng.  Corp.  Cas.  526,  3  Am. 
Co.  v.  Illinois,  201  U.  S.  506,  50  L.  ed.  Elec.  Cas.  142,  aff'g  58  Hun,  610,  35 
845,  26  Sup.  Ct.  518,  aff'g  214  111.  9,  N.  Y.  St.  R.  606,  12  N.  Y.  Supp.  536; 
73  N.  E.  393,  following  Chicago,  Bur-  People  v.  King,  110  N.  Y.  418,  423, 
lington  &  Quincy  Ry.  Co.  v.  Drainage  18  N.  E.  245,  1  L.  R.  A.  293,  18  N.  Y. 
Commrs.,  200  U.  S.  561,  26  Sup.  Ct.  St.  R.  353,  aff'g  42  Hun,  186,  5  N.  Y. 
341,  50  L.  ed.  596.  In  this  case  a  St.  R.  138,  25  Wkly.  D.  212;  People 
railroad  company  was  required  to  v.  Squire,  107  N.  Y.  593,  12  N.  Y.  St. 
remove  a  bridge,  unless  it  abandoned  R.  832,  28  Wkly.  D.  175,  14  N.  E. 
or  surrendered  its  right  to  a  crossing  823,  2  Am.  Elec.  Cas.  176,  aff'd  145 
at  that  point,  and  to  erect  at  its  own  U.  S.  175,  36  L.  ed.  666,  12  Sup.  Ct. 
expense  and  maintain  a  new  bridge  880,  4  Am.  Elec.  Cas.  122.  See  Joyce 
in  conformity  with  regulations  estab-  on  Electric  Law  (2ded.),  §§420  et  seq. 
lished  by  drainage,  commissioners  un-  °4  Iron  Mountain  R.  Co.  v.  Mem- 
der  authority  of  the  State,  and  it  phis,  96  Fed.  113,  37  C.  C.  A.  410, 
was  held  that  such  requirement,  if  citing  Smyth  v.  Ames,  169  U.  S.  466, 
enforced,  would  not  amount  to  a  42  L.  ed.  819,  18  Sup.  Ct.  418;  Chi- 
taking  of  private  property  for  public  cago,  Burlington  &  Quincy  R.  Co.  v. 
use  within  the  meaning  of  the  Con-  Chicago,  166  U.  S.  226,  17  Sup.  Ct. 
stitution,  nor  to  a  denial  of  the  equal  581,  41  L.  ed.  979;  Missouri  Pac.  R. 
protection  of  the  laws.  See  Bristol  Co.  v.  Nebraska,  164  U.  S.  403,  41 
County,  In  re,  193  Mass.  257,  79  N.  E.  L.  ed.  489,  17  Sup.  Ct.  130;  Reagan 
339;  Stat.  1900,  p.  411,  c.  439,  §  6.  v.  Farmers'  Loan  &  T.  Co.,   154  U. 

63  City  of  Geneva  v.  Geneva  Teleph.  S.  362,  14  Sup.  Ct.  1047,  38  L.  ed. 
Co.,  62  N.  Y.  Supp.  172,  30  Misc.  1014,  4  Inters.  Comm.  Rep.  575; 
236  (Laws  1897,  c.  360,  §  58,  as  am'd  Scott  v.  McNeal,  154  U.  S.  34,  38  L. 
by  Laws  1899,  c.  405),  citing  Stone  ed.  896,  14  Sup.  Ct.  1108;  Yick  Wo 
v.  Mississippi,  101  U.  S.  814,  25  L.  v.  Hopkins,  118  U.  S.  356,  —  Sup. 
ed.  1079;  Western  Union  Teleg.  Co.  Ct.  — ,  30  L.  ed.  220;  Civil  Rights 
v.  City  of  New  York,  38  Fed.  552;  Cases,  109  II.  S.  3,  3  Sup.  Ct.  18,  27 
American  Rapid  Teleg.  Co.  v.  Hess,  L.  ed.  835;  Neal  v.  Delaware,  103  U. 
125  N.  Y.  641,  36  N.  Y.  St.  R.  252,  S.  370,  26  L.  ed.  567.  See  Joyce  on 
21  Am.  St.  Rep.  764,  26  N.  E.  919,  Electric  Law  (2d  ed.),  §  229. 

469 


§    JUS     CONSTITUTIONAL   LAW — FEDERAL   CONSTITUTION 


constitute  such  a  taking  of  the  property  of  a  corporation  op- 
erating its  works  under  a  franchise  granted  by  that  city.65 
Nor  is  a  railroad  deprived  of  its  property  without  due  process 
of  law  or  denied  the  equal  protection  of  the  laws  by  a  statute 
which  provides  that  every  railroad  company  organized  and 
doing  business  in  the  State  of  the  statutory  enactment  shall 
be  liable  for  all  damages  done  to  any  employee  of  such  company 
in  consequence  of  any  negligence  of  its  agents,  or  by  any 
mismanagement  of  its  engineers,  or  other  employees,  to  any 
person  sustaining  such  damage.66    Again,  due  process  of  law  is 


85  Mayor,  etc.,  of  City  of  Meridian 
v.  Farmers'  Loan  &  Trust  Co.,  143 
Fed  67,  rev'g  Farmers'  Loan  &  Trust 
Co.  v.  City  of  Meridian,  139  Fed.  673; 
Revere  Water  Co.  v.  Town  of  Win- 
throp,  192  Mass.  455,  78  N.  E.  497; 
Stat.  1905,  p.  488,  c.  477. 

68  Missouri  Pacific  Ry.  Co.  v. 
Mackey,  127  U.  S.  205,  32  L.  ed.  107, 
8  Sup.  Ct.  1161.  See  also  Tullis  v. 
Lake  Erie  &  Western  R.  Co.,  175  U. 
S.  348,  44  L.  ed.  192,  20  Sup.  Ct.  136; 
Chicago,  Kansas  &  Western  Rd.  Co. 
v.  Pontius,  157  U.  S.  209,  15  Sup.  Ct. 
585,  39  L.  ed.  675. 

Eight-hour  law  regulating  period 
of  employment  by  corporations  of 
workingmen  in  mines,  smelters  and 
other  institutions  for  the  reduction 
or  refining  of  ores  or  metals,  except 
in  certain  cases  of  emergency,  is 
valid  exercise  of  police  power  of  State 
and  does  not  violate  the  provi- 
sions of  the  Fourteenth  Amend- 
ment by  abridging  the  privileges  or 
immunities  of  citizens  of  the  United 
States,  or  by  depriving  them  of  their 
property,  or  by  denying  them  the 
equal  protection  of  the  laws.  Holden 
v.  Hardy,  169  U.  S.  366,  42  L.  ed.  780, 
18  Sup.  Ct.  383.  See  Atkin  v.  State 
of  Kansas,  191  U.  S.  207,  48  L.  ed. 
148,  24  Sup.  Ct.  124,  aff'g  State  v. 
Atkin,   64   Kan.    174,   67  Pac.   519; 

470 


Boyce,  Ex  parte,  27  Nev.  299,  75 
Pac.  1;  People  v.  Orange  County 
Road  Const.  Co.,  175  N.  Y.  84,  67 
N.  E.  129,  rev'g  77  N.  Y.  Supp.  16, 
73  App.  Div.  580,  citing  Connolly  & 
Dee  v.  Union  Sewer  Pipe  Co.,  184 
U.  S.  540,  46  L.  ed.  679,  22  Sup.  Ct. 
431;  Cotting  v.  Kansas  City  Stock- 
yards Co.,  183  U.  S.  79,  22  Sup.  Ct. 
30,  46  L.  ed.  92;  Gulf,  Colorado  & 
Santa  Fe  Ry.  Co.  v.  Ellis,  165  U.  S. 
150,  17  Sup.  Ct.  255,  41  L.  ed.  666; 
Pell's  Estate,  Matter  of,  171  N.  Y.  48, 
63  N.  E.  789,  89  Am.  St.  Rep.  791,  57 
L.  R.  A.  540;  People  ex  rel.  Tyroler 
v.  Warden,  157  N.  Y.  116,  51  N.  E 
1006,  43  L.  R.  A.  264,  68  Am.  St.  Rep. 
763;  Colon  v.  Link,  153  N.  Y.  188, 
60  Am.  St.  Rep.  609,  47  N.  E.  302. 
Examine  Ellis  v.  United  States,  206 
U.  S.  246,  51  L.  ed.  — ,  27  Sup.  Ct.  — . 
Statute  providing  for  payment 
monthly  of  employees  of  corporations 
and  giving  lien  for  wages  with  pref- 
erence over  other  liens,  with  certain 
exceptions,  and  allowing  a  reason- 
able attorney's  fee  in  case  of  action 
brought  does  not  violate  a  state 
constitutional  provision  as  to  depri- 
vation of  property  without  due 
process  of  law,  nor  interfere  with  the 
liberty  to  contract.  Skinner  v.  Gar- 
nett  Gold  Min.  Co.,  96  Fed.  735; 
Stat.  Cal.  1897,  p.  231,  §§  1,  2. 


CONSTITUTIONAL    LAW — FEDERAL    CONSTITUTION      §    299 

not  denied  by  the  imposition  of  a  tax  on  transfers  of  stock  in 
domestic  and  foreign  corporations.67  Nor  is  this  provision  as 
to  due  process  of  law  violated  by  a  mechanic's  lien  law  which 
specifies  the  form  of  contract  requisite  to  obtain  a  lien  but 
which  does  not  preclude  any  other  form  of  contract.08  And 
this  clause  of  the  Constitution  is  held  to  be  sufficiently  satisfied 
by  the  provisions  of  the  Massachusetts  Mill  Act  which  gives 
damages  or  compensation  within  a  certain  period  for  the 
harm  actually  done  to  lands  overflowed  or  otherwise  injured, 
the  right  of  the  lower  owner  only  becoming  complete  when 
the  land  is  flowed,  and  then  being  only  a  right  to  maintain  a 
dam,  subject  to  payment  to  the  upper  owners,  as  above 
stated,  for  the  injury  sustained.69 

§  299.  Same  Subject  Continued.  — A  statute  prohibiting 
effecting  insurance  on  property  in  the  State,  by  any  person 
therein,  in  any  marine  insurance  company  which  has  not 
complied  in  all  respects  with  the  laws  of  the  State  of  enactment, 
and  providing  a  fine  for  noncompliance  with  such  act,  violates 
the  due  process  clause  of  the  Constitution  when  applied  to  a 
contract  of  insurance  made  in  another  State  with  an  insurance 
company  there,  where  the  premiums  and  losses  were  to  be 
paid  there.70    So  compelling  the  acceptance  of  the  arbitrary 

87  People  v.  Reardon,  184  N.  Y.  of  the  Federal  Supreme  Court  might 
431,  77  N.  E.  970,  aff'g  97  N.  Y.  Supp.  depend  upon  the  interpretation  of 
535,  110  App.  Div.  821;  Laws  1905,  the  act  by  the  state  court,  it  was 
pp.  474,  477,  c.  241,  §§  315,  324.  held  that  the  bill  should  be  dismissed 

88  Chicago  Lumber  Co.  v.  New-  without  prejudice,  or  retained  until 
comb,  19  Colo.  App.  265,  74  Pac.  plaintiff's  rights  should  be  deter- 
786.  rained  in  an  action  for  damages  under 

8g  Otis  Co.  v.  Ludlow  Mfg.  Co.,  186  the    statute    pending    in    the    state 

Mass.  89,  70  N.  E.  1009,  104  Am.  St.  courts.    Otis  Co.  v.  Ludlow  Mfg.  Co., 

Rep.  563.     Modified  as  follows:  In  a  201  U.  S.  140,  26  Sup.  Ct.  353,  50  L. 

suit  at  equity  brought  by  the  upper  ed.  696. 

owner   to    restrain   the   lower  owner  70  Allgeyer  v.  Louisiana,  165  U.  S. 

from  building  a  dam,  the  state  court  578,  41  L.  ed.  832,  17  Sup.  Ct.  427. 

having    decided    generally    that   the  Distinguishing  Hooper  v.  California, 

Mill   Act   is   valid,   but   not    having  155  U.  S.  648,  39  L.  ed.  297,  15  Sup. 

definitely  expressed   itself   as  to   its  Ct.  207. 
constitutionality,  and  as  the  opinion 

471 


§   299      CONSTITUTIONAL    LAW— FEDERAL    CONSTITUTION 

decision  of  a  statutory  umpire  as  to  the  weight  of  grain  and 
precluding  the  showing  of  any  error  by  him  violates  the  due 
process  of  law  clause.71  Property  is  also  taken  without  due 
process  of  law  by  the  requirement  of  an  ordinance  that  street 
railroads  accept  transfers  from  other  companies  with  which  it 
has  no  connection  and  which  thereby  necessitates  carrying 
passengers  without  charge,  and  this  is  so  even  though  a  re- 
ciprocal obligation  is  imposed  upon  such  other  companies  and 
an  increase  of  business  results  therefrom.72  And  a  statute 
which  attempts  to  change  the  ownership  of  private  property 
without  due  process  of  law  is  unconstitutional.73  Again,  a 
law  operates  to  deprive  railroad  companies  of  property  with- 
out due  process  of  law,  and  denies  to  them  the  equal  protec- 
tion of  the  law,  where  it  singles  them  out  of  all  citizens  and 
corporations  and  requires  them  to  pay,  in  certain  cases,  at- 
torneys' fees  to  the  parties  successfully  suing  them,  while  it 
gives  to  them  no  like  or  corresponding  benefit.74  But  the 
Nebraska  statute  of  1899,75  by  which  the  court  upon  rendering 
judgment  for  a  total  loss  sued  for  against  an  insurance  com- 
pany upon  any  policy  of  insurance  against  loss  on  real  prop- 
erty by  fire,  tornado  or  lightning  shall  allow  the  plaintiff  a 
reasonable  attorney's  fee  to  be  taxed  as  costs,  is  not  repug- 
nant to  the  equality  clause  of  the  Fourteenth  Amendment 
either  because  it  arbitrarily  subjects  insurance  companies  to 
a  liability  for  such  fees  when  other  defendants  in  other  cases 
are  not  subjected  to  such  burden,  or  because  the  fee  is  to  be 

71  Vega  Steamship  Co.  v.  Con-  April  5,  1889.  The  claims  under  this 
solidated  Elevator  Co.,  75  Minn,  statute  were  those  for  "  personal  serv- 
308,  77  N.  W.  973,  43  L.  R.  A.  843.  ices  rendered  or  for  labor  done,  or  for 

72  Chicago  City  Ry.  Co.  v.  Chicago,  damages,  or  for  overcharges  on 
142  Fed.  844.  freight,  or  claims  for  stock  killed  or 

73  People  v.  O'Brien,  111  N.  Y.  1,  injured  by  the  train  of  any  railway 
18  N.  E.  692,  19  N.  Y.  St.  R.  173,  company,  provided  that  such  claim 
rev'g  45  Hun,  519,  10  N.  Y.  St.  R.  for  stock  killed  or  injured  shall  be 
596,  27  Wkly.  D.  365,  Laws  N.  Y.  presented  to  the  agent,"  etc.  See 
1886,  c.  271.  Joliffe  v.  Brown,   14  Wash.   155,  44 

74  Gulf,  Colorado  &  Santa  Fe  Ry.  Pac.  149,  3  Am.  &  Eng.  R.  Cas.  (N. 
Co.  v.  Ellis,  165  U.  S.  650,  41  L.  ed.  S.)  254. 

— ,    17    Sup.  Ct.  — ,   act  of  Texas,       75  Laws  1899,  chap.  48,  §§  43-45. 

472 


CONSTITUTIONAL    LAW — FEDERAL    CONSTITUTION      §    300 

imposed  on  the  insurance  companies  but  not  on  the  insured 
when  the  suit  is  successfully  defended,  or  because  the  statute 
arbitrarily  distinguished  between  different  classes  of  policies 
allowing  the  fee  in  certain  cases  and  not  in  others.76 

§300.  Equal  Protection  of  the  Laws. — There  cannot  be 
an  exact  exclusion  or  inclusion  of  persons  and  things  in  a 
classification  for  governmental  purposes,  and  a  general  classi- 
fication, otherwise  proper,  will  not  be  rendered  invalid  because 
certain  imaginary  and  unforeseen  cases  have  been  overlooked. 
In  such  a  case  there  is  no  substantial  denial  of  the  equal  pro- 
tection of  the  laws  within  the  meaning  of  the  Fourteenth 
Amendment;77  and  a  state  constitutional  provision  declaring 
that  protection  to  persons  and  property  shall  be  impartial 
and  complete  is  the  equivalent  to  a  declaration  that  the  equal 
protection  of  the  laws  shall  not  be  denied  to  any  person.78 
So  it  is  not  in  the  power  of  one  State,  when  establishing  regu- 
lations for  the  conduct  of  private  business  of  a  particular  kind, 
to  give  its  own  citizens  essential  privileges,  connected  with 
that  business,  which  it  denies  to  citizens  of  other  States.79 
A  state  statute  may,  however,  without  violating  the  equal 
protection  clause  of  the  Fourteenth  Amendment,  put  into  one 
class  all  engaged  in  business  of  a  special  and  public  character, 
and  require  them  to  perform  a  duty  which  they  can  do  better 
and  more  quickly  than  others  and  impose  a  not  exorbitant 
penalty  for  the  non-performance  thereof.80    And  the  peculiar 

78  Farmers'  &  Merchants'  Ins.  Co.  upon  point  that  due  process  of  law 

v.  Dobney,  189  U.  S.  301,  23  Sup.  Ct.  acquires  opportunity  to  be  heard  as 

565,  47  L.  ed.  821,  aff'g  62  Neb.  213,  to  validity  of  tax  and  amount  of  as- 

86  N.  W.  1070.     See  Iowa  Life  Ins.  Bessment,    in    207    U.    S.    127.      See 

Co.  v.  Lewis,  187  U.  S.  335,  23  Sup.  Walston  v.  Nevins,  128  U.  S.  578,  32 

Ct.  126,  17  I,  ed.  — .  L.  ed.  544,  9  Sup.  Ct.  192. 

"Oxan     Lumber    Co.     v.     Union        » Blake  v.  McClung,  172  IT.  S.  239, 

County   National   Hank  of  Liberty,  43  L.  ed.  432,  19  Sup.  Ct.  165. 
207  U.  S.  251.  MSeaboard   Air   bine  Ry.  v.  See- 

78  Georgia   R.    &   Banking  Co.    v.  gaers,.207  U.  S.  73,  aff'g  73  S.  C.  71. 

Wright,    125  Ga.  .789,  54  S.  E.  52;  Examine  Ritchie  v.  People,  155  111. 

Central  of  Georgia  Ry.  Co.  v.  Same,  98,  40  N.  E.  454,  27  Chic.  Leg.  N. 

125  Ga.  617,  54  8.  E.  64,  both  rev'd,  270,  29  L.  R.  A.  79. 

473 


§   300     CONSTITUTIONAL   LAW— FEDERAL   CONSTITUTION 

character  of  the  business  in  which  a  class  of  corporations  is 
engaged  may  warrant  the  imposition  upon  that  class  of  cer- 
tain duties  and  liabilities  without  infringing  upon  this  clause 
as  to  the  equal  protection  of  the  laws.81    So  legislation  imposing 
upon  railway  companies  special  restrictions,  obligations,  and 
liabilities  not  generally  applicable  to  other  persons  or  corpo- 
rations is  not  a  denial  of  the  equal  protection  of  the  laws;82 
nor  does  the  enforcement  against  railroad  companies  of  reason- 
able rules  and  regulations  deny  such  protection;83  nor  is  it 
denied  by  a  statute  which  imposes  a  liability  upon  railroad 
companies  for  injuries  by  fire  communicated  by  its  right  of 
way; 84  nor  is  such  protection  of  the  law  denied  by  a  judgment 
in  favor  of  an  abutting  owner  of  land  against  a  railroad  com- 
pany for  damages  arising  from  the  temporary  construction 
and  use  of  tracks  in  a  street  while  reconstructing  a  crossing 
under  authority  of  a  state  statute; 85  nor  does  a  statute  provid- 
ing for  the  taxation  of  national  banks  deny  to  the  banks  as 
taxpayers  the  equal  protection  of  the  laws.86    Such  equal  pro- 
tection of  the  laws  is  not  denied  under  a  state  constitution 
avoiding  sales  on  margin  of  corporate  shares  of  stock,  or  on 
future  delivery.87    And  the  courts  requiring  a  bond  of  a  party 
before    issuing   an    injunction    in    condemnation    proceeding, 
does  not  deny  such  protection  of  the  laws,  even  though  no 
bond  is  required  of  the  opposing  party; 88  nor  is  it  denied  by  a 
statute  which  allows  damages  not  exceeding  a  certain  per 

81  St.    Louis,     Iron    Mountain     &  85  Knapp    &   Cowles    Mfg.    Co.    v. 
Southern  Ry.  Co.  v.  Paul,  64  Ark.  New  York,  New  Haven  &  Hartford 
83,  40  S.  W.  705,  37  L.  R.  A.  504,  7  Ry.  Co.,  76  Conn.  311,  56  Atl.  512. 
Am.  &  Eng.  Corp.  Cas.  (N.  S.)  772.  8e  Bank  of  Redemption  v.  Boston, 

82  McGuire  v.  Chicago,  Burlington  125  U.  S.  60,  31  L.  ed.  — ,  8  Sup. 
&  Quincy  R.  Co.,  131  Iowa,  340,  352,  Ct.  — ;  Mass.  Pub.  Stats.,  chap.  13, 
108  N.  W.  902.  §§  8,  9,  10. 

83  State  v.  Atlantic  Coast  Line  R.  "  Otis  v.  Parker,  187  U.  S.  606, 
Co.  (Fla.),  41  So.  705.  23  Sup.  Ct.   168,  47  L.  ed.  — ,  aff'g 

84  Brown  v.  Carolina  Midland  Ry.  Parker  v.  Otis,  130  Cal.  322,  62  Pac. 
Co.,  67  S.  C.  481,  46  S.  C.  283;  Code,  571,  927. 

Laws    1902,    §  2135.      See    also    St.  88  Columbia  Water   Power  Co.   v. 

Louis  &  San  Francisco  Ry.  Co.  v.  Nunamaker,  73  S.  C.  550,  53  S.  E. 

Mathews,  165  U.  S.  1,  17  Sup.  Ct.  996. 
243,41  L.  ed.  611. 

474 


CONSTITUTIONAL   LAW — FEDERAL   CONSTITUTION       §  300 

cent  and  a  reasonable  attorney's  fee  to  plaintiff  in  an  action 
to  recover  for  a  loss  against  an  insurance  company  which  has 
vexatiously  refused  to  pay  such  loss.89  But  a  statute  cannot 
constitutionally  discriminate  against  corporations  and  so  deny 
them  the  equal  protection  of  the  law  by  imposing  upon  them 
restrictions  as  to  liability  of  damages  to  employees  without 
regard  to  differences  consequent  upon  the  nature  of  the  busi- 
ness not  imposed  on  natural  persons.90  A  statute  does  not, 
however,  deny  the  equal  protection  of  the  laws  where  it  makes 
all  railroad  companies  liable  for  injuries  to  an  employee  al- 
though caused  by  a  fellow  servant's  negligence  irrespective 
of  insurance  or  other  benefits  or  other  contracts  of  indemnity.91 

89  Williamson  v.  Liverpool  &  Lon-  Consol.    Gold   Mining  Co.    v.    First- 
don  &  Globe  Ins.  Co.,  141  Fed.  54,  72  brook,  36  Colo.  498,  86  Pac.  313. 
C.  C.  A.  542;  Rev.  Stat.  Mo.,  1899,       The    following   provisions    in    the 
§  8012.  first  section  of  the  act  of  the  legis- 

See  also,  the  following  cases:  lature  of  Indiana  approved  by  the 

United  States:     Merchants'  Life  governor  of  that  State  on  the  fourth 

Assn.  of  United  States  v.  Yoakum,  day    of    March,    1893,    viz.:    "That 

98  Fed.  251,  ,  every  railroad  or  other  corporation, 

Florida :  Tillis  v.  Liverpool  &  Lon-  except  municipal,  operating  in  this 
don  &  Globe  Ins.  Co.  (Fla.,  1903),  35  State,  shall  be  liable  for  damages  for 
So.  171.  personal  injury  suffered  by  any  em- 
Missouri:  Keller  v.  Home  Life  Ins.  ployee  while  in  its  service,  the  em- 
Co.,  198  Mo.  440,  95  S.  W.  903.  ployee  so  injured  being  in  the  exercise 

Tennessee:  Continental  Fire  Ins.  of  due  care  and  diligence,  in  the  fol- 

Co.  v.  Whitaker  &  Dillard,  112  Tenn.  lowing  cases:  First.  When  such  injury 

151,  79  S.  W.  119.  is  suffered  by  reason  of  any  defect  in 

Texas:   Sun  Life" Ins.  Co.  v.  Phil-  the  condition  of  ways,  works,  plant, 

lips  (Tex.  Civ.  App.),  70  S.  W.  603.  tools  and  machinery  connected  with, 

Washington:  Joliffe  v.  Brown,  14  or  in  use  in  the  business  of  such  cor- 

Wash.   155,  44  Pac.   149,  3  Am.   &  poration,  when  such  defect  was  the 

Eng.  R.  Cas.  (N.  S.)  254.  result  of  negligence  on  the  part  of  the 

80  Ballard  v.  Mississippi  Cotton  Oil  corporation,  or  some  person  intrusted 

Co.,  81  Miss.  507,  34  So.  533;  Acts  by  it  with  the  duty  of  keeping  such 

1898,   §  1,  Laws  1898,  p.  85,  c.  66.  way,  works,  plant,  tools  or  machinery 

Compare     Callahan     v.     St.     Louis  in  proper  condition;  Second.  Where 

Merchants'  Bridge  Terminal  Co.,  170  such  injury  resulted  from  the  negli- 

Mo.  473,  71  S.  W.  208,  60  L.  R.  A.  gence  of  any  person  in  the  service  of 

249;  Froelich  v.  Toledo  &  Ohio  Cen-  such  corporation,  to  whose  order  or 

tral  Ry.  Co.,  24  Ohio  Cir.  Ct.  R.  359.  direction  the  injured  employee  at  the 

91  McGuire  v.  Chicago,  Burlington  time  of  the  injury  was  bound  to  con- 

&  Quincy  Rd.   Co.,   131   Iowa,  340,  form,  and  did  conform:  Third.  Where 

108  N.  W.  902.    See  also  Vindicator  such  injury  resulted  from  the  act  or 

475 


§   300     CONSTITUTIONAL   LAW — FEDERAL   CONSTITUTION 


But  this  constitutional  provision  is  violated  by  a  stock-killing 
act  against  railroads  which  ignores  the  fencing  of  railways 
and  the  question  of  negligence.92  A  statute  prohibiting  agree- 
ments among  insurance  companies  regulating  agent's  commis- 
sions, and  also  the  manner  of  transacting  the  fire  insurance 
intrastate  business,  violates  this  clause  as  to  equal  protection  of 
the  laws.93   A  private  corporation  is  a  person  within  this  clause.94 


omission  of  any  person  done  or  made 
in  obedience  to  any  rule,  regulation 
or  by-law  of  such  corporation,  or  in 
obedience  to  the  particular  instruc- 
tions given  by  any  person  delegated 
with  the  authority  of  the  corporation 
in  that  behalf;  Fourth.  Where  such 
injury  was  caused  by  the  negligence 
of  any  person  in  the  service  of  such 
corporation  who  has  charge  of  any 
signal,  telegraph  office,  switch  yard, 
shop,  round  house,  locomotive  engine 
or  train  upon  a  railway  or  where  such 
injury  was  caused  by  the  negligence 
of  any  person,  coemployee  or  fellow 
servant  engaged  in  the  same  common 
service  in  any  of  the  several  depart- 
ments of  the  service  of  any  such  cor- 
poration, the  said  person,  coemployee 
or  fellow  servant  at  the  time  acting 
in  the  place  and  performing  the  duty 
of  the  corporation  in  that  behalf,  and 
the  person  so  injured  obeying  or  con- 
forming to  the  order  of  some  superior 
at  the  time  of  such  injury,  having 
the  authority  to  direct;  that  nothing 
herein  shall  be  construed  to  abridge 
the  liability  of  the  corporation  under 
existing  laws,"  as  they  are  construed 
and  applied  by  the  Supreme  Court  of 
that  State,  are  not  invalid,  and  do 
/lot  violate  the  Fourteenth  Amend- 
ment to  the  Constitution  of  the 
United  States.  Tullis  v.  Lake  Erie  & 
Western  R.  Co.,  175  U.  S.  348,  44 
L.  ed.  192,  20  Sup.  Ct.  136. 
92  Sweetland  v.  Atchison,  Topeka  & 


Santa  Fe  R.  Co.,  22  Colo.  220,  43  Pac. 
1006. 

Payment  of  employees — Lien  for 
wages  on  corporate  property — Reason- 
able attorneys'  fees  to  enforce  lien. 
Statute  as  to  does  not  deny  equal  pro- 
tection of  the  laws.  Skinner  v.  Gar- 
nett  Gold   Mining  Co.,  96  Fed.  735. 

93  Greenwich  Ins.  Co.  v.  Carroll, 
125  Fed.  121. 

94  Johnson  v.  Goodyear  Min.  Co., 
127  Cal.  4,  59  Pac.  304.  See  §§  64- 
66,  herein. 

Although  corporations  are  entitled 
to  the  equal  pfotection  of  the  laws, 
still  "this  does  not  mean  that  cor- 
porations and  natural  persons  stand 
in  the  same  relation  to  the  power 
which  inheres  in  the  State  to  regulate 
their  conduct  or  methods  of  business. 
The  distinction  between  them  is 
fundamental  and  ineradicable.  The 
natural  person  has  certain  inalienable 
rights,  for  which  he  is  not  indebted 
to  organized  society.  *  *  *  The 
corporate  person  has  no  rights  except 
those  with  which  it  is  endowed  by  the 
lawmaking  power,  and  the  power  of 
creation  necessarily  implies  the  power 
of  regulation  *  *  '  *  '  the  police 
power  of  the  State  may,  within  well 
defined  limitations,  extend  over  cor- 
porations outside  and  regardless  of 
the  power  to  amend  charters.' " 
McGuire  v.  Chicago,  Burlington  & 
Quincy  R.  Co.,  131  Iowa,  340,  367, 
368,  108  N.  W.  902,  per  Weaver,  J. 


476 


OBLIGATION    OF   CONTRACTS 


§  301 


CHAPTER  XIX. 


OBLIGATION    OF    CONTRACTS. 


§  301.  Impairment  of  Obligation  of    §  312. 
Contract — Generally. 

302.  States— Civil   Institutions   of       313. 

— Constitutional  Restraints 
— Obligation  of  Contracts. 

303.  Obligation      of      Contract — 

Existence  of  Legal  Con-  314. 
tract  — Impairment—  State  315. 
Statutes. 

304.  Obligation  of  Contracts — Fed- 

eral    Question — Status    of 

Party  Plaintiff.  316. 

305.  Impairment     of     Obligation 

of     Contracts — What    Are 
"  Laws  " — Application. 

306.  Same  Subject-*-Judicial  Acts       317. 

— Vested  Rights. 

307.  Vested    Rights — Amendment 

to  Effect  Purposes  of  Char- 
ter— Modifying  or  Enlarg-       318. 
ing  Powers. 

308.  Charter  Powers  not  Contem- 

plated   and    Unexecuted —       319. 
Treated     as     License    and 
Revocable. 

309.  Obligation     of     Contracts—        320. 

Change  of  Remedy. 

310.  Obligation  of  Contracts— Mu- 

nicipal Corporations. 

311.  Charter    or    Franchise    as    a 

Contract — Impairment     of 
Obligation  of  Contract. 

§301.  Impairment  of  Obligation  of  Contract— Gener- 
ally.— The  provision  in  the  Constitution  of  the  United  States 
that  no  State  shall  pass  any  law  impairing  the  obligation  of 
contracts  '  does  not  extend  to  any  state  law  enacted  before 


Same  Subject — The  Dart- 
mouth College  Case. 

Obligation  of  Contract — Stat- 
utes —  Ordinances  —  Dele- 
gated Authority  —  Ease- 
ments in  Streets. 

Same  Subject. 

What  Is  not  a  Contract — 
Obligation  of  Contract — 
When  not  Impaired — In- 
stances. 

Same  Subject  —  Instances 
Continued — Railroad  Char- 
ter— Subscriptions  in  Aid 
of  Railroad. 

Reservation  of  Power  to 
Alter,  Amend  or  Repeal 
Grant  of  Franchise  or  Char- 
ter. 

Reservation  of  Power  to 
Alter,  etc.,  Is  Part  of  Char- 
ter or  Contract. 

Reservation  of  Power  to 
Alter,  etc.,  and  Limitations 
Thereon. 

Reservation  of  Power  to 
Alter,  etc.  —  Fourteenth 
Amendment — Equal  Pro- 
tection of  the  Law — Dep- 
rivation of  Property — 
Railroad  Employees. 


'Art.  1,  §  10,  cl.  1. 


477 


§§    302,    303  OBLIGATION    OF    CONTRACTS 

the  first  Wednesday  in  March,  1789,  and  operating  upon  rights 
of  property  vested  before  that  time  which  was  the  date  when 
the  Constitution  of  the  United  States  commenced  its  operation.2 
Said  provision  also  necessarily  refers  to  the  law  made  after  the 
particular  contract  in  suit,3  and  applies  as  well  to  implied  as  to 
express  contracts.4  But  a  statute  does  not  necessarily  impair 
the  obligation  of  a  contract  because  it  may  affect  it  restrospec- 
tively,  or  because  it  enhances  the  difficulty  of  performance  to 
one  party  or  diminishes  the  value  of  the  performance  to  the 
other,  provided  that  it  leaves  the  obligation  of  the  performance 
in  full  force.5 

§  302.  States— Civil  Institutions  of— Constitutional  Re- 
straints— Obligation  of  Contracts. — The  Federal  Constitu- 
tion is  not  to  be  construed  as  intended  to  restrict  the  States  in 
the  regulation  of  their  civil  institutions  adopted  for  internal 
government,  and  the  constitutional  provision  forbidding  the 
States  from  impairing  the  obligation  of  contracts  is  not  to  be 
understood  to  embrace  other  contracts  than  those  which  respect 
property  or  some  other  object  of  value  and  confer  rights  which 
may  be  asserted  in  a  court  of  justice.6 

§  303.  Obligation  of  Contract — Existence  of  Legal  Con- 
tract— Impairment — State  Statutes. — Before  the  Federal  Su- 
preme Court  can  be  asked  to  determine  whether  a  statute  has 
impaired  the  obligation  of  a  contract,  it  must  be  made  to 
appear  that  there  was  a  legal  contract  subject  to  impairment, 
and  some  ground  to  believe  that  it  has  been  impaired.7  And 
whether  an  alleged  contract  arises  from  state  legislation,  or  by 

'Owings  v.  Speed,  5  Wheat.    (18  5  Curtis  v.  Whitney,  13  Wall.  (80 

U.  S.)  420,  5  L.  ed.  124.  U.  S.)  68,  20  L.  ed.  513. 

3  Oshkosh    Water    Works    Co.    v.  6  Dartmouth     College     v.     Wood- 

Oshkosh,  187  U.   S.  437,  47  L.  ed.  ward,  4  Wheat.  (17  U.  S.)  518,  4  L. 

249,  23    Sup.  Ct.  — ;    Lehigh  Water  ed.  629,  per  the  court. 

Co.  v.  Easton,  121  U.  S.  388,  30  L.  ed.  7  New    Orleans    v.    New    Orleans 

1059,  7  Sup.  Ct.  916.  Water  Works  Co.,  142  U.  S.  79,  35 

*  Fisk  v.  Jefferson  Police  Jury,  116  L.  ed.  943,  12  Sup.  Ct.  142. 
U.  S.  131,  29  L.  ed.  587. 

478 


OBLIGATION   OF   CONTRACTS  §§   304,  305 

agreement  with  the  agents  of  a  State,  by  its  authority,  or  by 
stipulation  between  individuals  exclusively,  the  Federal  Su- 
preme Court  will  upon  its  own  judgment  and  independently  of 
the  adjudication  of  the  state  court,  decide  whether  there  exists 
a  contract  within  the  protection  of  the  Constitution  of  the 
United  States.8 

§  304.  Obligation  of  Contracts— Federal  Question — Status 
of  Party  Plaintiff. — One  who  has  contracted  to  deliver  gas 
machinery  to  a  gas  and  fuel  company  has  no  standing  in  a  court 
of  equity  to  restrain  a  city  from  enforcing  an  ordinance  pro- 
hibiting the  erection  of  gas  works  within  a  portion  of  the  city 
in  which  the  erection  of  gas  works  was  not  prohibited  when  the 
contract  was  made,  on  the  ground  that  such  ordinances  are 
repugnant  to  the  Federal  Constitution  as  impairing  the  obliga- 
tion of  a  contract,  it  not  appearing  that  the  plaintiff  has  any 
contract  with  the  city  or  that  the  gas  and  fuel  company  would 
not,  or  could  not,  by  reason  of  insolvency,  respond  to  its  claim 
under  the  contract.9 

§  305.  Impairment  of  Obligation  of  Contracts — What  Are 
"  Laws  " — Application. — The  prohibition  in  the  Constitution 
of  the  United  States  against  the  passage  of  laws  impairing  the 
obligation  of  contracts  applies  only  to  legislative  enactments 
of  the  States ; 10  although  it  is  also  held  to  apply  to  the  consti- 
tution as  well  as  to  the  laws  of  each  State.11    And  an  ordinance 

8  Louisville    Gas    Co.    v.    Citizens'  has  been  affirmed  in  numerous  other 

Gas  Co.,  115  U.  S.  683,  29  L.  ed.  510,  cases."     Douglass  v.  Kentucky,  168 

6  Sup.  Ct.  265.  U.  S.  488,  502,  42  L.  ed.  553,  18  Sup. 

"The  doctrine  that  this  court  pos-  Ct.  199. 

sesses  paramount  authority  when  re-  'Davis  it  Karnum  Manufg.  Co.  v. 

viewing  the  final  judgment  of  a  state  Los  Angeles,  189  U.  S.  207,  23  Sup. 

court   upholding   a   state   enactment  Ct.  538,  47  L.  ed.  858. 

alleged  to  be  in  violation  of  the  con-  "'  Weber  v.  Ilogan,  188  U.  S.   10, 

tract  clause  of  the  Constitution,   to  47  L.  ed.  363,  23  Sup.  Ct.  263. 

determine  for  itself  the  existence  or  "  New  Orleans  Gas  Co.  v.  Louis- 

non-existence  of  the  contract  set  up,  iana  1  ight  Co.,  115  U.  S.  650,  29  L. 

and  whether  its  obligation  has  been  ed.   516,   ti   Sup.   Ct.   252.      Sec  also 

impaired    by    the    state    enactment,  Hanford  v.  Davies,  163  U.  S.  273,  41 

479 


§    306  OBLIGATION    OF    CONTRACTS 

adopted  as  part  of  a  state  constitution  levying  a  tax  on  the 
gross  receipts  of  a  railroad  company,  within  two  years  after 
it  was  completed  and  put  in  operation,  in  order  to  pay  debts  of 
the  State,  in  order  to  help  build  the  road,  and  which  as  be- 
tween itself  and  the  State  the  railroad  company  was  primarily 
bound  to  pay,  impaired  the  obligation  of  contract  and  was 
void.12  But  it  is  also  determined  that  if  the  decision  of  a  state 
court  is  based  upon  a  constitutional  or  legislative  enactment, 
passed  after  the  contract  in  question  was  made,  the  Federal 
Supreme  Court  has  jurisdiction  to  inquire  whether  such  legisla- 
tion does  not  impair  the  obligation  of  the  contract,  and  thereby 
violate  the  Federal  Constitution.13  A  municipal  ordinance, 
however,  not  passed  under  legislative  authority,  is  not  a  law 
of  the  State  within  the  meaning  of  this  constitutional  prohibi- 
tion against  state  laws  impairing  the  obligation  of  contracts.14 

§  306.  Same    Subject— Judicial    Acts— Vested    Rights.— 

This  constitutional  inhibition  against  the  impairment  of  con- 
tracts does  not  apply  to  the  judicial  decisions  or  acts  of  the 
state  tribunals  or  officers,  under  statutes  in  force  at  the  time  of 
the  making  of  the  contract  the  obligation  of  which  is  alleged  to 
have  been  impaired.15  So  this  clause  of  the  constitution  can- 
not be  invoked  against  what  is  merely  a  change  of  decision  in 
the  state  court,  but  only  by  reason  of  a  statute  enacted  subse- 
quent to  the  alleged  contract  and  which  has  been  upheld  or 

L.ed.  157, 16  Sup.  Ct.  1051;  Railroad  13  Delmas    v.    Insurance    Co.,    14 

Co.  v.  McClure,  10  Wall.  (77  U.  S.)  Wall.  (81  U.  S.)  661,  20  L.  ed.  757. 

511,  19  L.  ed.  997  (a  constitution  of  14  Hamilton  Gas  Light  &  C.  Co.  v. 

a  State  is  in  this  case  admitted  to  be  a  Hamilton  City,  146  U.  S.  258,  36  L. 

"law"  within  the  inhibition).  ed.  963,  13  Sup.  Ct.  90. 

A   state  constitution  is  not  a  con-  15  Weber  v.  Rogan,  188  U.  S.  10, 

tract  within  the  inhibition.     Church  47  L.  ed.  363,  23  Sup.  Ct.  263;  Han- 

v.  Kelsey,  121  U.  S.  282,  30  L.  ed.  ford  v.  Davies,  163  U.  S.  273,  41  L. 

960.  ed.  157,  16  Sup.  Ct.  1051.     See  last 

12  Pacific  Rd.   Co.   v.   Maguire,  20  preceding  section  herein. 

Wall.   (87  U.  S.)  36,  22  L.  ed.  282.  The  provision  of  the  Constitution 

Examine    Oakland    Paving    Co.    v.  of  the  United  States,  which  declares 

Barstow,  79  Cal.   45,  21    Pac.   544;  that  no  State  shall  pass  any  law  im- 

Nelson  v.  Haywood  County,  87  Tenn.  pairing  the  obligation  of  contracts,  is 

781,  11  S.  W.  885.  aimed  at  the  legislative  power  of  the 

480 


OBLIGATION    OF    CONTRACTS  §    306 

effect  given  to  it  by  the  state  court.16  But  it  is  also  held  that 
where  the  highest  court  of  a  State  has  upheld  the  power  of  a 
railroad  company  to  lease  its  road,  and  such  decision  stands 
unquestioned,  when  a  lease  is  entered  into  it  becomes  embodied 
in  the  contract  the  obligation  of  which  cannot  be  subsequently 
impaired.17  And  the  doctrine  has  been  asserted  and  reasserted 
by  the  United  States  Supreme  Court  that  if  a  contract  when 
made  was  valid  by  the  laws  of  the  State,  as  then  expounded  by 
all  the  departments  of  its  government,  and  administered  in  its 
courts  of  justice,  its  validity  and  obligation  cannot  be  impaired 
by  any  subsequent  act  of  the  legislature  of  the  State,  or  de- 
cision of  its  courts  altering  the  construction  of  the  law.18  So  a 
railroad  company  may,  under  the  Rapid  Transit  Act  of  New 
York,  acquire  upon  organization  such  a  vested  franchise  and 
right  to  use  land  upon  prescribed  routes,  that,  even  though  it 
has  not  undertaken  to  acquire  ownership,  a  subsequent  statute 
giving  the  lands  to  a  public  park  will  not  operate  to  divest  the 
company's  rights.19  And  statutes  regulating  irrigation  and 
water  rights  do  not  affect  pre-existing  rights.20  If  a  legislative 
grant  is  only  a  mere  gratuity,  is  not  an  act  of  incorporation, 

State,   and   not   at   decisions   of  its  Coffin  v.  Rich,  45  Me.  507,  71  Am. 

courts,  or  acts  of  executive  or  ad-  Dec.  559;   Bronson  v.  City  of  New 

ministrative    boards    or    officers,    or  York,  10  Barb.  (N.  Y.)  223;  Morris 

doings  of  corporations  or  individuals,  v.    State,    62    Tex.    728.      See    also 

New  Orleans  Water  Works  Co.    v.  §§  282-285,  herein. 

Louisiana  Sugar  Ref.  Co.,  125  U.  S.  A  state  law  is  not  in  violation  of 

18,  31  L.  ed.  607,  8  Sup.  Ct.  741.  any  part  of  the  Federal  Constitution 

18  National  Mut.  B.  &  L.  Assn.  v.  because  it  divests  rights  vested  by 

Brahan,  193  U.  S.  635,  48  L.  ed.  823,  law  in  an  individual  if  not  impairing 

24  Sup.  Ct.  532.  the  obligation  of  a  contract.    Satter- 

17  Southern  R.  Co.  v.  North  Caro-  lee  v.  Matthewson,  2  Pet.  (27  U.  S.) 

linaR.  Co.  (C.  C.),81  Fed.  595.  380,7    L.    ed.    458,   distinguishing 

1801cott  v.  Supervisors,  16  Wall.  Fletcher  v.  Peck,  6  Cranch   (10  U. 

(83  U.  S.)  678,  21  L.  ed.  382;  Have-  S.),  87,  3  L.  ed.  162. 

meyer  v.  Iowa  County,  3  Wall.   (70  I8  Suburban  Rapid  Transit  Co.  v. 

I".  S.)  294,  18  L.  ed.  38;  Ohio  Life,  New  York,  128  N.  Y.  510,  40  N.  Y. 

etc.,  Co.  v.  Debolt,  16  How.  (57  U.  S.)  St.  R.  498,  28  N.  E.  525,  10  Ry.  & 

416,   14   L.   ed.   997,  per  the  court.  Corp.  L.  J.  494. 

See   Memphis   v.    United    States,   97  20  Benton    v.    Johncox,    17   Wash. 

U.  S.  293,  24  L.  ed.  920;  Steamship  277,  49  Pac.  495,  39  L.  R.  A.  107,  61 

Co.  v.  Joliffe,  2  Wall.  (69  U.  S.)  450;  Am.  St.  Rep.  912. 

31  481 


§    307  OBLIGATION    OF    CONTRACTS 

confers  no  chartered  rights  and  does  not  amount  to  a  contract, 
the  legislature  has  power  to  repeal  the  grant  where  no  rights 
have  been  acquired  under  the  statutory  grant  nor  any  liabil- 
ity incurred  in  consequence  of  its  passage.  But  where  vested 
rights  have  been  acquired  under  the  grant  before  the  passage 
of  the  repealing  law,  then,  to  the  extent  of  such  rights,  such 
repealing  law  is  unconstitutional  and  inoperative.21  Again, 
a  statute  annulling  conveyances  is  unconstitutional  as  im- 
pairing the  obligation  of  contracts.22  The  repeal  of  a  state 
statute  authorizing  every  street  railway  to  be  operated  by  such 
animal,  electric  or  other  power  as  the  municipal  authorities 
may  have  granted  will  not  destroy  its  effect  to  ratify  contracts 
in  existence  when  it  was  passed.23  Nor  are  franchises  of  exist- 
ing corporations  destroyed  or  materially  impaired  by  an  au- 
thority under  a  statute  to  empower  street  railway  companies, 
by  contract,  to  use  city  streets.24  And  where  a  statute  is  held 
constitutional,  but  that  decision  is  overruled  by  the  highest 
state  court,  the  obligation  of  a  contract  entered  into  in  the 
period  between  the  two  decisions  is  not  thereby  impaired.25 
An  amendment  to  the  general  corporation  law  whereby  a 
foreign  corporation  is  prohibited  from  suing  on  a  claim  to  the 
assignee,  where  it  has  not  complied  with  the  statute,  does  not 
apply  to  a  suit  on  a  prior  contract  where  by  such  application 
there  would  be  an  impairment  of  the  obligation  of  contract.26 

§  307.  Vested  Rights— Amendment  to  Effect  Purposes  of 
Charter — Modifying  or  Enlarging  Powers. — The  charter  of  a 
private  corporation  may  vest  rights  in  the  corporators  and 
stockholders  which  no  -subsequent  legislation  can  impair  or 
diminish.     But  a  charter  may  be  amended  in  so  far  as  it  is 

21  Gregory  v.   Trustees  of  Shelby  Govin  v.  City  of  Chicago,  132  Fed. 

College,  2  Mete.  (59  Ky.)  589  (a  case  848. 
of  a  lottery  privilege).  2*  Citizens'  St.  Ry.  Co.  v.  City  R. 

"Fletcher  v.  Peck,  6  Cranch  (10  Co.  (C.  C),  64  Fed.  647. 
U.  S.),  87,  3  L.  ed.  162.  25  Storrie  v.  Cortes,  90  Tex.  283, 

23  Blair  v.  Chicago,  201  U.  S.  400,  38  S.  W.  154,  35  L.  R.  A.  666. 
26  Sup.  Ct.  427,  50  L.  ed.  801,  rev'g       26  McNamara  v.  Keene,  98  N.  Y. 

Supp.  860,  49  Misc.  452. 

482 


OBLIGATION    OF    CONTRACTS  §§    308,   309 

necessary  to  carry  into  effect  or  accomplish  the  purposes  for 
which  it  was  obtained.27  So  the  provision  of  a  constitution, 
which  declares  that,  "the  General  Assembly  shall  have  no 
power  to  grant  corporate  powers  and  privileges  to  private  com- 
panies" (with  certain  exceptions),  "but  it  shall  prescribe  by 
law  the  manner  in  which  such  powers  shall  be  exercised  by  the 
courts,"  does  not  take  away  from  the  General  Assembly  the 
power  to  amend  the  charters  of  existing  corporations  by  modi- 
fying or  enlarging  their  powers,28  especially  so  where  the  modi- 
fication of  the  charter  is  consented  to  by  the  corporation ; 29  and 
the  whole  charter  is  not  necessarily  revoked  by  the  withdrawal 
of  a  single  right  or  privilege  where  the  legislature  is  authorized 
to  incorporate  with  a  reserved  power  of  revocation.30 

§  308.  Charter  Powers  not  Contemplated  and  Unexecuted 
— Treated  as  License  and  Revocable. — Where  a  charter  au- 
thorizes a  company  in  sweeping  terms  to  do  certain  things 
which  are  unnecessary  to  the  main  object  of  the  grant,  and  not 
directly  and  immediately  within  the  contemplation  of  the  par- 
ties thereto,  the  power  so  conferred,  so  long  as  it  is  unexecuted, 
is  within  the  control  of  the  legislature  and  may  be  treated  as  a 
license,  and  may  be  revoked,  if  a  possible  exercise  of  such  power 
is  found  to  conflict  with  the  interests  of  the  public.31 

§  309.  Obligation  of  Contracts— Change  of  Remedy.— The 
remedy  subsisting  in  a  State  when  and  where  a  contract  is 
made,  and  is  to  be  performed,  is  a  part  of  its  obligation;  and 
any  subsequent  law  of  the  State,  which  so  affects  that  remedy 
as  substantially  to  impair  and  lessen  the  value  of  the  contract, 
is  forbidden  by  the  Constitution  of  the  United  States,  and, 

nCity  of  Covington  v.  Covington  Wilmington  &  B.   S.  Ry.  Co.   (Del. 

&    Cincinnati    Bridge   Co.,    10   Bush  Ch.,  1900),  46  Atl.  12,  citing  numer- 

73  Ky.),  69.  ous  cases.     See  also  City  of  Wilttiing- 

28  Jones  v.  Habersham,  107  U.  S.  ton  v.  Addicka  (Del.,  1901),  47  Atl. 

[74,  '-'7  L.  ed.  401;  Const.  <;,•,.,  1868.  366. 

w  O/Phinney  v.  Sheppard  &  Enoch  "  Pearsall   v.   Great  Northern  R. 

Pratt  Hospital,88  Md.633,  12  Ml  58.  Co.,  161  U.  S.  640,  40  L.  ed.  838,  16 

30  Wilmington     City     Ry.     Co.     V.  Sup.  Ct.  705.     See  §§  7,  48,  herein. 

483 


§   310  OBLIGATION    OF   CONTRACTS 

therefore,  is  void.32  So  "it  is  well  settled  by  the  adjudications 
of  this  court,  that  the  obligation  of  a  contract  is  impaired,  in 
the  sense  of  the  Constitution,  by  any  act  which  prevents  its 
enforcement,  or  materially  abridges  the  remedy  for  enforcing 
it,  which  existed  at  the  time  it  was  contracted,  and  does  not 
apply  an  alternative  remedy  equally  adequate  and  effica- 
cious." 33  If  a  statute  provides  that  existing  remedies  for 
previously  incurred  liabilities  against  a  corporation,  its  directors 
or  officers,  shall  not  be  impaired  by  repealing  the  charter,  it 
constitutes  a  contract  within  the  protection  of  the  Constitution 
of  the  United  States.34 

§  310.  Obligation  of  Contracts — Municipal  Corporations. 

— There  are  many  ways  in  which  the  legislature  has  absolute 
power  to  make  and  change  subordinate  municipalities.35 
Municipal  corporations  are  political  subdivisions  of  the  State, 
created  by  it  and  at  all  times  wholly  under  its  legislative  con- 
trol; their  charters,  and  the  laws  conferring  powers  on  them, 
do  not  constitute  contracts  within  the  contract  clause  of  the 
Federal  Constitution.36    But  the  power  of  the  State  to  alter  or 

32  Edwards  v.  Kearzey,  96  U.  S.  Federal  Constitution,  but  the  private 
595,  24  L.  ed.  793.  See  Memphis  v.  contracts  and  property  rights  of  such 
United  States,  97  U.  S.  293,  24  L.  ed.  corporations  are  protected.  Dart- 
920.  mouth     College     v.     Woodward,     4 

33  McGahey  v.  Virginia,  135  U.  S.  Wheat.  (17  U.  S.)  518,  4  L.  ed.  629. 
662,  694,  34  L.  ed.  304,  10  Sup.  Ct.  A  municipal  corporation  is  a  public 
972,  per  Bradley,  J.  instrumentality,    established    to    aid 

34  People  v.  O'Brien,  111  N.  Y.  1,  in  the  administration  of  affairs  of  the 
19  N.  Y.  St.  R.  173,  2  L.  R.  A.  255,  State,  and  neither  its  charters,  nor 
7  Am.  St.  Rep.  684,  18  N.  E.  692.  any  legislative  act  regulating  the  use 

35  Laramie  County  v.  Albany  of  property  held  by  it  for  govern- 
County,  92  U.  S.  307,  23  L.  ed.  552;  mental  or  public  purposes,  is  a  con- 
Kies  v.  Lowrey,  199  U.  S.  233,  50  L.  tract  within  the  meaning  of  the  Con- 
ed. 167,  26  Sup.  Ct.  27.  stitution  of  the  United  States.    Cov- 

36  Hunter  v.  City  of  Pittsburg,  207  ington  v.  Kentucky,  173  U.  S.  231, 
U.  S.  161.  43  L.  ed.  679,  19  Sup.  Ct.  383. 

Corporations  for  mere  public  gov-  A    municipal    corporation,    being 

ernment,  such  as    towns,  cities  and  a  mere  agent  of  the  State,  stands  in 

counties,    are   subject   to   legislative  its  governmental  or  public  character, 

control   and   their   charters   are   not  in  no  contract  relation  with  its  sover- 

contracts  within  the  meaning  of  the  eign,   at  whose  pleasure  its  charter 

484 


OBLIGATION   OF   CONTRACTS  §    311 

destroy  its  municipal  corporations  is  not,  so  far  as  the  impair- 
ment of  the  obligation  clause  of  the  Federal  Constitution  is 
concerned,  greater  than  the  power  to  repeal  its  legislation;  and 
the  alteration  or  destruction  of  subordinate  governmental  di- 
visions is  not  the  proper  exercise  of  legislative  power  when  it 
impairs  the  obligations  of  contracts  previously  entered  into. 
Courts  cannot  permit  themselves  to  be  deceived;  and  while 
they  will  not  inquire  too  closely  into  the  motives  of  the  State 
they  will  not  ignore  the  effect  of  its  action ;  and  will  not  permit 
the  obligation  of  a  contract  to  be  impaired  by  the  abolition  or 
change  of  the  boundaries  of  a  municipality.  Where  a  tax  has 
been  provided  for  and  there  are  officers  to  collect  it  the  court 
will  direct  those  officers  to  lay  the  tax  and  collect  it  from  the 
property  within  the  boundaries  of  the  territory  that  constituted 
the  municipality.37  The  fact  that  the  council  of  a  city  has 
passed  a  resolution  providing  for  payment  of  a  pending  bill  of  a 
water  company  claiming  a  franchise,  with  a  saving  clause 
against  the  city,  being  estopped  from  denying  the  existence  of 
contract  right,  does  not  give  the  Circuit  Court  jurisdiction  to 
maintain  an  action  in  equity  to  enjoin  the  city  from  appropri- 
ating money  in  the  water  fund  to  the  payment  of  any  indebted- 
ness other  than  the  complainant  on  the  ground  that  such  reso- 
lution is  a  law  impairing  the  obligation  of  a  contract  within  the 
purview  of  the  Federal  Constitution.38 

§  311.  Charter  or  Franchise  as  a  Contract— Impairment 
of  Obligation  of  Contract. — We  have  considered  under 
preceding  sections  the  nature  of  franchises  and  the  question 
whether  a  distinction  exists  between  a  charter  and  a  franchise, 
as  well  as  other  distinctions,39  and  it  may  be  stated  here  that 

may   be   amended,    changed    or   re-  142  U.  S.  79,  35  L.  ed.  943,  12  Sup. 

voked,   without   the    impairment   of  Ct.  142. 

any    constitutional    obligation;    but  "Graham   v.    Folsom,   200   U.    S. 

such  a  corporation  in  respect  of  its  248,  50  L.  ed. — ,  26  Sup.  Ct. — . 

private  or  constitutional  rights  and  ss  Defiance  Water  Co.  v.  Defiance. 

interests,    may   be   entitled   to   con-  191  U,  S.  184,  48  L.  ed.  140,  24  Sup. 

stitutional  protection.     New  Orleans  Ct.  63. 

v.   New  Orleans  Water  Works  Co.,  30  See  §§  22-48,  herein. 

485 


§   311  OBLIGATION    OF   CONTRACTS 

an  accepted  act  of  incorporation  of  a  private  corporation  con- 
stitutes such  a  contract  between  the  State  and  the  corporation 
that  the  latter  cannot,  by  a  subsequent  act  of  the  legislature  or 
of  a  subordinate  legislative  body,  be  deprived  of  vested  rights, 
privileges  and  franchises  acquired  under  that  charter.  That 
grant  cannot,  against  the  consent  of  the  corporation,  be  de- 
stroyed or  the  obligation  of  contract  be  impaired  by  legislative 
amendments  or  repeal,  or  changed  in  any  respect  material  to 
corporate  rights,  in  the  absence  of  a  power  reserved  to  alter, 
amend  or  repeal  such  charter  or  franchise  rights,  and  even  the 
extent  to  which  this  reserved  power  may  be  exercised  remains 
a  question  not  fully  settled.40    A  corporation  although  organ- 

t0  United  States:  Georgia  Rd.  &  Arkansas:   State  v.  Real  Estate 

Bkg.  Co.  v.  Smith,  128  U.  S.  174,  32  Bank,  5  Pike  (5  Ark.),  595,  599,  41 

L.  ed.  377,  9  Sup.  Ct.  47,  16  Wash.  Am.  Dec.  509. 

L.  Rep.  749;  Louisville  Gas  Co.  v.  California:     Billings    v.    Hall,    7 

Citizens'  Gas  Co.,  115  U.  S.  683,  29  Cal.  1. 

L.    ed.    510,   6    Sup.    Ct.    265;    New  Connecticut:  Hartford  Bridge  Co. 

Orleans  Gas  Co.  v.  Louisiana  Light  v.  Union  Ferry  Co.,  29  Conn.  210; 

Co.,  115  U.  S.  650,  29  L.  ed.  615,  6  Derby   Turnpike   Co.    v.    Parks,    10 

Sup.  Ct.  252;    Binghamton    Bridge,  Conn.  522,  27  Am.  Dec.  700. 

The,  3  Wall.  (70  U.  S.)  51,  18  L.  ed.  Delaware:     Philadelphia,    W.    & 

137;  Providence  Bank  v.  Billings,  4  B.  Co.  v.   Bowers,   4    Houst.    (Del.) 

Pet.   (29  U.  S.)  514,  7  L.  ed.  939;  506. 

Fletcher  v.  Peck,  6  Cranch  (10  U.  S.),  Georgia:  Goldsmith  v.  Augusta  & 

87,  3  L.  ed.  162;  Old  Colony  Trust  S.   R.   Co.,  62  Ga.   468;   Branch  v. 

Co.  v.  City  of  Wichita,  123  Fed.  762;  Baker,  53  Ga.  502. 

City  of  Morristown  v.  East  Tennes-  Illinois:    Dobbins    v.    First    Nat. 

see  Teleph.  Co.,  115  Fed.  304;  Abbott  Bank,  112  111.  553;  Ruggles  v.  People, 

v.    City   of   Duluth,    104    Fed.    833;  91  111.  256;  Bruffett  v.  Great  Western 

Central  Trust  Co.  v.  Citizens'  St.  R.  R.  Co.,  25  111.  353.     See  People  v. 

Co.  (C.  C),  82  Fed.  1,  83  Fed.  529,  29  Central  Union  Tel.  Co.,  192  111.  307, 

Chic.  Leg.  News,  417,  14  Nat.  Corp.  61    N.   E.   428;   People's  Gaslight  & 

R.  770,  15  Nat.  Corp.  R.  529;  Louis-  Coke  Co.  v.  Hale,  94  111.  App.  406. 

ville  Trust  Co.  v.  Cincinnati,  76  Fed.  Indiana:    Smead    v.   Indianapolis 

296,  22  C.  C.  A.  334,  47  U.  S.  App.  36.  P.  &  C.  R.  Co.,  11  Ind.  104. 

Alabama:  State  v.  Alabama  Bible  Kansas:  Baxter  Springs,  City  of, 

Soc,    134    Ala.    632,    32    So.    1011;  v.  Baxter  Springs  Light  &  Power  Co., 

Birmingham  &  P.  M.  S.  R.  Co.  v.  64  Kan.  591,  68  Pac.  63,  8  Am.  Elec. 

Birmingham  S.  R.  Co.,  79  Ala.  465;  Cas.  125. 

Alabama  &  F.  R.  Co.  v.  Burkett,  46  Kentucky:     Hamilton    v.    Keith, 

Ala.  569;  Aldridge  v.  Tuscumbia  P.  5  Bush  (68  Ky.),  458;  Griffin  v.  Ken- 

&  D.  R.  Co.,  2  Stew.  &  P.  (Ala.)  199,  tucky  Ins.  Co.,  3  Bush  (66  Ky.),  592, 

23  Am.  Dec.  307.  96  Am.  Dec.  259.     See  Gregory  v. 

486 


OBLIGATION    OF    CONTRACTS  §    311 

ized  under  a  general  statute  may  nevertheless  thereby  enter  into 
and  obtain  a  contract  from  the  State  which  may  be  of  such  a 

Trustees  of  Shelby  College,  2  Mete.  Am.  Dec.  243;  People  v.  Albany  & 

(59  Ky.)  589.  V.  R.  Co.,  37  Barb.  (N.  Y.)  216. 

Louisiana:  New  Orleans  v.  Great  North  Carolina:  Attorney  Genl.  v. 
Southern  Teleph.   &  Teleg.   Co.,   40  Bank   of   Charlotte,    57   N.    C.    2S7; 
La.  Ann.  41,  3  So.  533;  Montpelier  Houston  v.  Bogle,  32  N.  C.  496. 
Academy  v.  George,  14  La.  395,  33  Ohio:  See  City  of  Toledo  v.  North- 
Am.  Dec.  585.  western    Ohio    Natural    Gas    Co.,   6 

Maine:  State  v.  Noyes,47Me.  189;  Ohio  N.  P.  531,  8  Ohio  S.  &  C.  P. 

Coffin  v.  Rich,  45  Me.  507,  71  Am.  Dec.  277. 

Dec.  559;  Yarmouth  v.  North  Yar-  Pennsylvania:    Pennsylvania    R. 

mouth,  34  Me.  411,  56  Am.  Dec.  666.  Co.  v.  Duncan,  111   Pa.  352,  5  Atl. 

Maryland:  State  v.  Northern  Cent.  742;  Chincleclamouche  Lumber,  etc., 

R.  Co.,  44  Md.  162;  Chesapeake  &  O.  Co.  v.  Commonwealth,  100  Pa.  444; 

Canal  Co.  v.  Baltimore  &  Ohio  R.  Dillon  v.  Dougherty,  2  Grant's  Cas. 

Co.,  4  Gill  &  J.  (Md.)  1.  99.      See    Pennsylvania    R.    Co.    v. 

Michigan:     Mahan    v.    Michigan  Bowers,  124  Pa.  183,  2  L.  R.  A.  621, 

Teleph.  Co.,  132  Mich.  242,  93  N.  W.  16  Atl.  836,  23  Wkly.  N.  of  Cas.  257. 

639,  8  Am.  Elec.  Cas.  38,  9  Det.  Leg.  Tennessee:    Woodfork   v.    Union 

News,  597.  Bank,  3  Cold.  (43  Tenn.)  488. 

Minnesota:   Duluth,  City   of,    v.  Texas:  Houston  &  T.  Cent.  R.  Co. 

Duluth  Teleph.   Co.,  84   Minn.   4S6,  v.  Texas  &  Pac.  R.  Co.,  70  Tex.  649, 

87  N.  W.  1128,  8  Am.  Elec.  Cas.  136.  8  S.  W.  498;  State  v.  Southern  Pac. 

Mississippi:  New  Orleans,  J.  &  G.  R.  Co.,  24  Tex.  80. 

N.  R.  Co.  v.  Harris,  5  Cushm.   (27  Wisconsin:  State  v.  Chicago  &  N. 

Miss.)    517;    Payne    v.    Baldwin,    3  W.  Ry.  Co.,  128  Wis.  449,  108  N.  W. 

Smedes  &  M.  (11  Miss.)  661.  594;  State  v.  Atwood,  11  Wis.  422. 

Missouri:  State,  Morris,  v.  Board  See  Pratt  v.  Brown,  3  Wis.  603. 

of  Trustees  of  Westminister  College,  Examine  the  following  cases: 

175  Mo.  52,  74  S.  W.  990.  United  States:  Long  Island  Water 

Nebraska:  State,  City  Water  Co.,  Supply  Co.  v.  Brooklyn,  166  U.  S. 

v.  Kearney,  49  Neb.  325,  68  N.  W.  685,  17  Sup.  Ct.  718,  41  L.  ed.  1165; 

533,  aff'd  1!)  Neb.  337,  70  N.  W.  255.  Pearsall  v.  Great  Northern  Ry.  Co., 

New      Hampshire:      Piscataqua  161  U.  S.  648,  40  L.  ed.  838,  16  Sup. 

Bridge  v.  New  Hampshire  Bridge,  7  Ct.   705;  Rundle  v.   Delaware  &  R. 

N.  II.  35,  68.  Canal  Co.,  14  How.  (55  U.  S.)  80,  14 

New  Jersey:  Zabriskie  v.  Hacken-  L.  ed.  335;  Charles  River  Bridge  v. 

sack  &  N.  Y.  R.  Co.,  18  N.  J.  Eq.  Warren  Bridge,  11   Pet.   (36  U.  S.) 

178,90  Am.  Dec.  617.  420.9  L.  ed.  77:;. 

New    York:    Trustees     of     Free-  Georgia:  Central  R.  Co.  v.  Collins, 

holders,  etc.,  of  Southport  v.  Jessup,  40  Ga.  582. 

162  N.  Y.  122,  126,  56  N.   E.  538;  Maine:  Farrington  v.  Putnam,  90 

Thompson  v.  People,  23  Wend.   (N.  Me.  405,  37  Atl.  652,  38  L.  It.  A. 

17,  578;   People  v.   Qtica    tns.  339. 

Co.,  15  Johns.   CX.  Y.)  358,  387,  8  Massachusetts:      Boston     Glass 

487 


§  311 


OBLIGATION    OF    CONTRACTS 


nature  that  it  can  only  be  altered  in  case  the  power  to  alter 
was,  prior  thereto,  provided  for  in  the  constitution  or  legisla- 


Manufactory  v.  Langdon,  24  Pick. 
(41  Mass.)  49,  53,  35  Am.  Dec.  292. 

North  Carolina:  Trustees  of 
Davidson  College  v.  Chambers,  56 
N.  C.  253. 

Ohio:  Exchange  Bank  of  Colum- 
bus v.  Hines,  3  Ohio  St.  1;  Bank  of 
Toledo  v.  City  of  Toledo  (Toledo 
Bank  v.  Bond),  1  Ohio  St.  622,  642- 
652;  Mechanics'  &  Traders'  Bank  v. 
Debolt,  1  Ohio  St.  591,  rev'd  in  18 
How.  (59  U.  S.)  380. 

"Every  grant  of  a  franchise  is,  so 
far  as  that  grant  extends,  necessarily 
exclusive;  and  cannot  be  resumed, 
or  interfered  with.  All  the  learned 
judges  in  the  state  court  admitted, 
that  the  Charles  River  bridge,  what- 
ever it  be,  could  not  be  resumed 
or  interfered  with.  The  legislature 
could  not  recall  its  grant,  or  destroy 
it.  It  is  a  contract,  whose  obligation 
cannot  be  constitutionally  impaired. 
In  this  respect  it  does  not  differ  from 
a  grant  of  lands.  In  each  case,  the 
particular  land,  or  the  particular 
franchise,  is  withdrawn  from  the 
legislative  operation.  The  identical 
land,  or  the  identical  franchise,  can- 
not be  regranted,  or  avoided  by 
a  new  grant.  But  the  legislative 
power  remains  unrestricted.  The 
subject-matter  only  (I  repeat  it)  has 
passed  from  the  hands  of  the  gov- 
ernment. *  *  *  The  authorities 
are  abundant  to  establish,  that  the 
king  cannot  make  any  second  grant 
which  shall  prejudice  the  profits  of 
the  first  grant.  And  why  not?  Be- 
cause the  grant  imposes  public  bur- 
dens on  the  grantee,  and  subjects 
him  to  public  charges,  and  the  profits 
constitute  his  only  means  of  re- 
muneration; and  the  crown  shall  not 

488 


be  at  liberty  to  impair,  much  less  to 
destroy  the  whole  value  and  objects 
of  its  grant.  *  *  *  If  the  public- 
exigencies  and  interests  require  that 
the  franchise  of  Charles  River  bridge 
should  be  taken  away,  or  impaired, 
it  may  lawfully  be  done  upon  making 
due  compensation  to  the  proprietors. 
'Whenever,'  says  the  constitution 
of  Massachusetts,  'the  public  exi- 
gencies require  that  the  property  of 
any  individual  should  be  appropri- 
ated to  public  uses,  he  shall  receive 
a  reasonable  compensation  therefor:' 
and  this  franchise  is  property;  is 
fixed,  determinate  property.  *  *  * 
That  franchise,  so  far  as  it  reaches,  is 
private  property;  and  so  far  as  it  is 
injured,  it  is  the  taking  away  of 
private  property.  *  *  *  If  the 
sovereign  power  grants  any  fran- 
chise, it  is  good  and  irrevocable 
within  the  limits  granted,  whatever 
they  may  be;  or  else,  in  every  case, 
the  grant  will  be  held  only  during 
pleasure;  and  the  identical  franchise 
may  be  granted  to  any  other  person 
or  may  be  revoked  at  the  will  of  the 
sovereign.  This  latter  doctrine  is 
not  pretended;  and,  indeed,  is  un- 
maintainable in  our  systems  of 
free  government.  *  *  *  By  the 
grant  of  a  particular  franchise  the 
legislature  does  not  surrender  its 
power  to  grant  franchises,  but  merely 
parts  with  its  power  to  grant  the 
same  franchise;  for  it  cannot  grant 
that  which  it  has  already  parted  with. 
Its  power  remains  the  same;  but 
the  thing  on  which  it  can  alone  oper- 
ate, is  disposed  of.  It  may,  indeed, 
take  it  again  for  public  uses,  upon 
paying  a  compensation.  But  it  can- 
not resume  it,  or  grant  it  to  another 


OBLIGATION    OF   CONTRACTS  §   312 

tion  of  the  State.41  And  a  grant  in  the  constitution  of  a  State 
of  a  privilege  to  a  corporation  is  not  subject  to  a  repeal  or 
change  by  the  legislature  of  the  State.42  But  a  limitation  in  a 
charter  of  the  time  for  bringing  suits  against  a  railroad  corpo- 
ration may  be  repealed  by  the  legislature.43 

§  312.  Same  Subject — The  Dartmouth  College  Case. — In 

this  well-known  case  it  was  decided  that  the  charter  granted 
by  the  British  Crown  to  the  trustees  of  Dartmouth  College  in 
New  Hampshire,  in  the  year  1769,  was  a  contract  within  the 
meaning  of  art.  1,  sec.  10,  of  the  Constitution  of  the  United 
States,  which  declares  that  no  State  shall  make  any  law  im- 
pairing the  obligation  of  contracts;  that  the  charter  was  not 
dissolved  by  the  Revolution;  and  that  an  act  of  the  state  legis- 
lature of  New  Hampshire,  altering  the  charter,  without  the 
consent  of  the  corporation,  in  a  material  respect,  was  an  act 
impairing  the  obligation  of  the  charter  and  was  unconstitu- 
tional and  void.  It  was  also  declared  that  a  charter  of  incorpo- 
ration is  a  contract.  A  contract  is  a  compact  between  two  or 
more  persons  and  is  either  executory  or  executed.  An  exec- 
utory contract  is  one  in  which  a  party  binds  himself  to  do  or  not 
to  do  a  particular  thing.  A  contract  executed  is  one  in  which 
the  object  of  the  contract  is  performed,  and  this  differs  in 

person;    under    any    other    circum-  dissenting  in  part;  State  v.  Real  Es- 

stances,  or  for  any  other  purposes."  tate  Bank,  5  Pike  (5  Ark.),  595,  599, 

Charles    River    Bridge    v.     Warren  41  Am.  Dec.,  per  Lacy,  J. 

Bridge,  11  Pet.  (36  TJ.  S.)  420,  604,  41  Stanislaus  Co.  v.  San  Joaquin  & 

618,  637,  638,  643,  645,  9  L.  ed.  773,  King's  River  Canal  &  Irrig.  Co.,  192 

per  Story,  J.,  in  dissenting  opinion.  U.  S.  201,  48  L.  ed.  406,  24  Sup.  Ct. 

Franchises   spring   from   contracts  234. 

with  the  sovereign  power.     Some  of  i2  New   Orleans   v.    Houston,    119 

them  are  presumed  to  be  founded  on  U.  S.  265,  30  L.  ed.  411. 

a  valuable  consideration  and  to  be  43  Louisville  &  N.  R.  Co.  v.   Wil- 

exclusive.     The  government  cannot  liams,  20  Ky.  L.  Rep.  77,  45  S.  W. 

resume  them  at  pleasure  or  do  any  229,  11  Am.  &  Eng.  R.  Cas.  (N.  S.) 

act  to   impair  the  grant   without   a  338,  rev'g  41  S.  W.  287,  7  Am.  &  Eng. 

breach    of    contract.      Kent's    Com.  Corp.  Cas.  (N.  S.)  774.     See  Chicago 

(14th  ed.)   bottom  p.   723,  *p.  458,  Life  Ins.  Co.  v.  Needles,  113  U.  S. 

quoted  from  in  Horst,  Mayor,  etc.,  v.  580,  28  L.  ed.  1087. 
Moses,  48  Ala.   146,  per  Peters,  J., 

489 


§   312  OBLIGATION   OF   CONTRACTS 

nothing  from  a  grant.  A  contract  executed,  as  well  as  one  that 
is  executory,  contains  obligations  binding  on  the  parties.  A 
grant  in  its  own  nature  amounts  to  an  extinguishment  of  the 
right  of  the  grantor  and  implies  a  contract  not  to  reassert  that 
right.  A  party  is  always  estopped  by  his  own  grant.  The  grant 
of  a  State  is  a  contract,  within  the  above  constitutional  clause, 
and  implies  a  contract  not  to  reassume  the  rights  granted. 
A  fortiori,  the  doctrine  applies  to  a  charter  or  grant  from  the 
king.  A  grant  of  corporate  franchises,  although  voluntary  and 
without  a  valuable  consideration,  is  irrevocable  and  constitutes 
such  a  contract  as  is  within  the  protection  of  the  Federal  Con- 
stitution. It  was  further  asserted  that  any  act  of  a  legislature 
which  takes  away  any  powers  or  franchises  vested  by  its  charter 
in  a  private  corporation,  or  which  restrains  or  controls  their 
legitimate  exercise,  or  transfers  them  to  other  persons  without 
corporate  assent,  is  a  violation  of  the  obligations  of  the  corpo- 
rate charter,  and  if  the  legislature  means  to  retain  such  au- 
thority it  must  be  reserved  in  the  grant.  The  charter  of  Dart- 
mouth College  contained  no  such  reservation  therefore;  the 
acts  of  the  legislature  of  New  Hampshire  in  question  were  held 
as  above  stated  to  impair  the  obligations  of  the  charter  and  to 
be  unconstitutional  and  void.  It  was  also  said  that  by  the 
Revolution,  the  duties  as  well  as  the  powers  of  government 
devolved  on  the  people  of  New  Hampshire.  It  is  admitted, 
that  among  the  latter  was  comprehended  the  transcendent 
power  of  Parliament,  as  well  as  that  of  the  executive  depart- 
ment. It  is  too  clear  to  require  the  support  of  argument,  that 
all  contracts  and  rights,  respecting  property,  remained  un- 
changed by  the  Revolution.  The  obligations,  then,  which  were 
created  by  the  charter  to  Dartmouth  College,  were  the  same  in 
the  new  that  they  had  been  in  the  old  government.  The  power 
of  the  government  was  also  the  same.  A  repeal  of  this  charter 
at  any  time  prior  to  the  adoption  of  the  present  Constitution  of 
the  United  States,  would  have  been  an  extraordinary  and  un- 
precedented act  of  power,  but  one  which  could  have  been  con- 
tested only  by  the  restrictions  upon  the  legislature,  to  be  found 
in  the  constitution  of  the  State.  But  the  Constitution  of  the 
490 


OBLIGATION   OF   CONTRACTS  §   313 

United  States  has  imposed  this  additional  limitation,  that  the 
legislature  of  a  State  shall  pass  no  act  "impairing  the  obligation 
of  contracts."  It  was  further  declared  that  the  Federal  Con- 
stitution provides  that  no  State  shall  by  legislation  impair  the 
obligation  of  contracts.  It  is  more  than  possible  that  the  pres- 
ervation of  rights,  such  as  those  contended  for  in  this  case,  was 
not  particularly  in  the  view  of  the  framers  of  the  Constitution 
when  the  clause  under  consideration  was  introduced  into  that 
instrument,  but  a  case  being  within  the  words  of  the  rule  must 
be  within  its  operation  likewise,  unless  there  be  something  in  the 
literal  construction  so  obviously  absurd  or  mischievous  or  re- 
pugnant to  the  general  spirit  of  the  instrument  as  to  justify 
those  who  expound  the  Constitution  in  making  it  an  exception.44 

§  313.  Obligation  of  Contract — Statutes — Ordinances — 
Delegated  Authority — Easements  in  Streets. — The  rule  that 
the  accepted  grant  of  a  corporation  or  franchise  constitutes  a 
contract  is  peculiarly  and  emphatically  applicable  in  the  case  of 
railroad  corporations  which  are  created  upon  public  consider- 
ations and  clothed  with  extensive  and  extraordinary  powers 
and  are  bound  to  the  discharge  of  public  duties.45  So  a  contract 
exists  between  the  State  and  a  railroad  corporation  organized 
under  a  general  incorporation  law ; 46  and  an  exercise  by  a  city, 
through  the  proper  authority,  of  its  power  to  grant  franchises 
becomes  a  law  of  the  State  so  as  to  prohibit  it  from  passing  any 
law  impairing  the  obligation  of  the  contract.47     A  railroad 

**  Dartmouth    College    v.    Wood-  Noyes,  47  Me.   189;   Houston  &  T. 

ward,  4  Wheat.  (17  U.  S.)  518,  4  L.  Cent.R.  Co.  v.  Texas  &  Pac.  R.  Co., 

ed.  029,  commented  on  and  explained  70  Tex.  649,  8  S.  W.  498;  Attorney 

in  Stone  v.  Mississippi,  101  1'.  S.  814,  Genl.  v.  Chicago  &  Northwestern  Rd. 

25  L.  ed.  1079,  distinguished  in  Wat-  Co.,  35  Wis.  425. 

son   Seminary    v.   Pike  County,   149  "  Central  Trust  Co.  v.  Citizens'  St. 

Mo.  57,  50  S.  W.  880,  45  L.  R.  A.  Rd.  Co.   (C.  C.)  82  Fed.  1,  83  Fed. 

675.  529,  14  Nat.  Corp.  Rep.  770,  15  Nat. 

*  Pierre  v.  Emery,  32  N.  H.  484,  Corp.  Rep.  529.     See  §§147  et  seq., 

508,  per  Perley,  C.  J.     See  also  State  herein. 

of  Minnesota  v.  Duluth  &  I.  R.  Co.,  t7  Citizens'  St.  Ry.  Co.  v.  City  Ry. 

97  Fed.  353;  Smead  v.  Indianapolis,  Co.,  56  Fed.  746.    See  §§  185  et  seq., 

P.  &  C.  R.  Co.,  11  Ind.  104;  State  v.  herein. 

491 


§   313  OBLIGATION    OF   CONTRACTS 

company's  right  to  use  city  streets  may  also  rest  upon  statute 
or  indirectly  upon  legislative  grant  through  delegated  power 
and  constitute  an  unimpairable  contract.48  So  the  right  to  sup- 
ply gas  or  water  through  pipes  and  mains  laid  in  city  streets  is, 
after  acceptance  of  the  grant,  a  contract  which  is  protected  by 
the  Constitution  of  the  United  States.49  And  where  a  telephone 
company  accepts  and  acts  upon  a  grant,  under  an  ordinance 
permitting  it  to  place  its  lines  and  poles  in  the  streets,  and  com- 
plies with  all  the  conditions  specified  and  constructs  an  ex- 
pensive plant,  such  rights  so  granted  and  acted  upon  constitute 
a  contract  which  cannot  be  impaired  by  subsequent  legislation 
or  unless  the  grantee  consents;  especially  where  the  grant  is 
without  limitation  as  to  time,  nor  can  the  city  impose  new  and 


48  Louisville  Trust  Co.  v.  Cincin-  Crescent  City  Gas  Light  Co.  v.  New 
nati,  76  Fed.  296,  22  C.  C.  A.  334;  Orleans  Gas-Light  Co.,  27  La.  Ann. 
Birmingham  &  P.  M.  S.  R.  Co.  v.  138,  147.  It  is  true  that  in  these 
Birmingham,  S.  R.  Co.,  79  Ala.  465.  cases  the  franchise  was  granted  di- 
See  Mercantile  Trust  &  Deposit  Co.  of  rectly  by  the  state  legislature,  but  it 
Bait.  v.  Collins  Park  &  B.  R.  Co.,  99  is  equally  clear  that  such  franchises 
Fed.  812.     See  §§  147  etseq.,  herein,  may  be  bestowed  upon  corporations 

49  "This  court  has  too  often  de-  by  the  municipal  authorities,  pro- 
dded for  the  rule  to  be  now  ques-  vided  the  right  to  do  so  is  given  by 
tioned,  that  the  grant  of  a  right  to  their  charters.  State  legislatures  may 
supply  gas  or  water  to  a  municipality  not  only  exercise  their  sovereignty 
and  its  inhabitants  through  pipes  and  directly,  but  may  delegate  such  por- 
mains  laid  in  the  streets,  upon  condi-  tions  of  it  to  inferior  legislative 
tion  of  the  performance  of  its  service,  bodies  as,  in  their  judgment,  is  de- 
by  the  grantee,  is  the  grant  of  a  fran-  sirable  for  local  purposes.  As  was 
chise  vested  in  the  State,  in  con-  said  by  the  Supreme  Court  of  Ohio  in 
sideration  of  the  performance  of  a  State  v.  Cincinnati  Gas  Light  and 
public  service,  and  after  performance  Coke  Co.,  18  Ohio  St.  262,  293:  'And 
by  the  grantee  is  a  contract  protected  assuming  that  such  a  power'  (grant- 
by  the  Constitution  of  the  United  ing  franchises  to  establish  gas  works) 
States  against  state  legislation  to  im-  '  maybe  exercised  directly,  we  are  not 
pair  it.  New  Orleans  Gas  Co.  v.  disposed  to  doubt  that  it  may  also 
Louisiana  Light  Co.,  115  U.  S.  650,  be  exercised  indirectly,  through  the 
29  L.  ed.  615,  6  Sup.  Ct.  252;  New  agency  of  a  municipal  corporation, 
Orleans  Water  Works  v.  Rivers,  115  clearly  invested,  for  police  purposes, 
TJ.  S.  674,  29  L.  ed.  525,  6  Sup.  Ct.  with  the  necessary  authority.'  This 
273;  St.  Tammany  Water  Works  v.  case  is  directly  in  line  with  those 
New  Orleans  Water  Works,  120  U.  S.  above  cited.  See  also  Wright  v. 
64,  7  Sup.  Ct,  405,  30  L.  ed.  563;  Nagle,  101  U.  S.  791,  25  L.  ed.  921; 

492 


OBLIGATION   OF   CONTRACTS  §    314 

burdensome  conditions.50   If  no  term  is  specified,  but  the  laws  of 
the  State  place  a  limitation  upon  the  duration  of  the  grant,  then 
during  such  period  there  can  be  no  impairment  of  the  contract 
obligation  unless  the  right  is  reserved  to  the  city  to  nullify  the 
grant.51    Again,  the  right  to  erect  poles  and  lines  in  the  streets 
may  be  derived  directly  from  the  legislature  and  the  city's 
powers  be  limited,  being  such  only  as  are  delegated  and  subject 
to  such  direct  control  as  the  legislature  may  deem  proper  to 
exercise.    And  the  acceptance  of  a  special  act  giving  a  tele- 
phone company  the  exclusive  right  to  the  use  of  the  streets  for 
its  purposes  for  a  term  of  years  does  not  operate  to  divest  the 
company  of  its  vested  rights  under  a  general  statute  to  exercise 
its  franchises  after  its  exclusive  grant  has  terminated,  nor  can 
it  be  deprived  thereof  by  legislative  action  of  the  State  or  city.52 
Unless  a  municipality  is  expressly  authorized  to  grant  a  perma- 
nent easement  in  its  streets  a  license  or  grant  by  it  to  a  railroad 
company  to  use  such  streets  for  tracks  and  the  operation  of  its 
road  will  not  constitute  a  permanent  easement.53    Nor  does  a 
gas  and  electric  company  obtain  an  irrevocable  and  indefeasible 
right  to  a  particular  location  for  each  pole  because  of  the  origi- 
nal location  by  the  permission  of  a  municipality  under  a  grant 
of  franchise  to  use  the  city  streets.54 

§  314.  Same  Subject. — It  may  be  further  stated  generally, 
that  where  a  city,  vested  with  the  proper  authority,  grants  by  a 
valid  legislative  enactment  authority  to  a  railroad,  telephone, 
electric  light  or  other  private  corporation  to  use  its  streets,  and 

Hamilton  Gas  Light  and  Coke  Co.  v.  Teleph.   &  Teleg.   Co.,  40  La.  Ann. 

Hamilton,    146  U.    S.   258,  266,   36  41,  3  So.  533. 

L.  ed.  963,  13  Sup.  Ct.  90;  Bacon  v.  61  Old  Colony  Trust  Co.  v.  City  of 

Texas,  163  U.  S.  207,  216,  41  L.  ed.  Wichita,  123  Fed.  762,  132  Fed.  641. 

132,  10  Sup.  Ct.  1023;  New  Orleans,  "Abbott  v.  City  of  Duluth,  104 

etc.,  Co.  v.  New  Orleans,  164  U.  S.  Fed.  833,  aff'd  117  Fed.   137.     See 

471,  41  L.  ed.  518,  17  Sup.  Ct.  161."  §§  185  et  seq.,  herein. 

Walla   Walla  City   v.   Walla  Walla  "  State  v.  Atlantic  &  N.  C.  R.  Co. 

Water  Co.,  172  U.  S.  1,  9;  43  L.  ed.  (N.  C,  1906),  53  S.  E.  290. 

341,  19  Sup.  Ct.  77,  per  Brown,  J.  "Merced  Falls  Gas  &  Electric  Co. 

Sec  $§  147  et  seq.,  herein.  v.  Turner,  2  Cal.  App.  720,  84  Pac. 

S0New  Orleans  v.  Great  Southern  238.      See    Joyce    on    Electric    Law 

(2d  ed.),  §§229a-229d. 

493 


§    314  OBLIGATION   OF   CONTRACTS 

such  grant  or  franchise  is  accepted  and  the  company  proceeds 
thereunder  and  obtains  vested  rights,  and  there  exists  no  ques- 
tions of  police  power  or  regulation,  or  of  reservations  in  the 
grant,  the  city  cannot  arbitrarily  repeal  or  change  materially 
such  ordinance  in  any  material  matter  so  as  to  impair  the  obli- 
gation of  the  contract.55  So  in  a  case  of  a  telegraph  company, 
which  occupies  an  independent  post  road  of  the  United  States, 
its  franchise  cannot  be  destroyed  by  state  legislation.56  If  the 
exclusive  right  of  occupation  of  city  streets  is  granted,  on  cer- 
tain conditions,  to  an  electric  light  plant,  by  a  city  ordinance,  as 
where  it  is  not  obligated  to  furnish  light  until  it  can  make  a 
certain  per  cent  profit,  the  grantee  must  begin  preparations  for 
erecting  such  plant  before  it  can  avail  itself  of  the  protection 
against  the  impairment  of  obligation  of  contract  provision  of 
the  Constitution.57  But  there  may  be  a  valid  grant  by  a  city 
or  town  to  an  intended  corporation,  of  a  franchise  to  use  its 
streets  for  the  public  use  of  electricity,  though  at  its  date  the 
corporation  is  not  chartered,  but  is  later  chartered  and  accepts 
the  grant.58    If  a  town  council  has  no  power,  either  under  its 

55  United  States:   Levis  v.  New-  Phillips  burgh,  66  N.  J.   L.  505,  49 

ton  (C.  C),  75  Fed.  884.  Atl.  445,  8  Am.  Elec.  Cas.  449. 

Alabama:  Port  of  Mobile  v.  Louis-  Texas:   Houston  v.  Houston  City 

ville    &    Nashville    R.    Co.,   84   Ala.  St.  R.  Co.  (Tex.),  19  S.  W.  127. 

116,  4  So.  106,  5  Am.  St.  Rep.  342.  Washington:  Commercial  Electric 

Illinois:    Village  of  London  Mills  Light  &  P.  Co.  v.  Tacoma,  17  Wash, 

v.  Fairview- London  Teleph.  Circuit,  661,  50  Pac.  592. 

105  111.  App.  146,  aff'd  in  Village  of  West  Virginia:  Clarksburg  Elec- 

London  Mills  v.  White,  208  111.  289,  trie  Light  Co.  v.  City  of  Clarksburg, 

70  N.  E.  289.  47  W.  Va.  739,  50  L.  R.  A.  142,  35 

Michigan:     Mahan    v.    Michigan  S.  E.  994,  7  Am.  Elec.  Cas.  25. 

Teleph.  Co.,  132  Mich.  242,  93  N.  W.  5e  Western    Union    Teleg.    Co.    v. 

629,  8  Am.  Elec.  Cas.  38.  New  York   (C.  C),  38  Fed.  552,  3 

Minnesota:  Northwestern  Teleph.  L.  R.  A.  449,  2  Inters.  Comm.  Rep. 

Exch.  Co.  v.  City  of  Minneapolis,  81  533,  6  Rd.  &  Corp.  L.  J.  105.     See 

Minn.    140,   83    N.    W.   527,   7  Am.  Joyce    on    Electric    Law    (2d    ed.), 

Elec.    Cas.    168,    86    N.    W.    69,    53  §§62-67. 

L.   R.   A.    175;    Duluth,  City  of,  v.  "  Capital  City  Light  &  Fuel  Co.  v. 

Duluth  Teleph.  Co.,  84  Minn.  486,  87  City  of  Tallahassee,  42  Fla.  462,  28 

N.  W.  1128,  8  Am.  Elec.  Cas.  136.  So.  810. 

New    Jersey:    Phillipsburg  Elec-  58  Clarksburg  Electric  Light  Co.  v. 

trie  Lighting.  Heating  &  Power  Co.  v.  City  of  Clarksburg,  47  W.  Va.  739,  50 

494 


OBLIGATION   OF   CONTRACTS  §   315 

charter  or  under  the  general  statute  law  governing  towns  and 
cities,  to  grant  an  exclusive  franchise  for  a  term  of  years  to  a 
private  corporation  to  use  its  streets  for  the  conveyance  of 
electricity  for  public  use  in  the  city,  such  exclusive  grant  is 
void  and  not  a  valid  contract  protected  by  the  provisions  of 
the  Constitution  forbidding  the  passage  of  any  law  impairing 
the  obligation  of  contracts;  and  such  exclusive  grant  does  not 
prevent  the  town  from  granting  to  another  corporation  within 
the  term  the  privilege  to  occupy  its  streets  for  the  same  pur- 
pose.59 The  mayor  and  city  council  may  be  vested  exclusively 
with  the  power  over  franchises,  and  still  another  statute  may 
vest  the  right  to  amend  charters  in  the  people  through  their 
votes  thereon,  and  such  authorization  may  embrace  an  amend- 
ment to  empower  the  people  to  grant  franchises  in  the  city.60 

§  315.  What  Is  not  a  Contract — Obligation  of  Contract — 
When  not  Impaired — Instances. — An  executive  agency, 
created  by  the  statute  of  a  State  for  the  purpose  of  improving 
public  highways,  and  empowered  to  assess  the  cost  of  its  im- 
provements upon  adjoining  lands,  and  to  put  up  for  sale  and 
buy  in  for  a  term  of  years  for  its  own  use  any  such  lands  delin- 
quent in  the  payment  of  the  assessment,  does  not,  by  such  a 
purchase,  acquire  a  contract  right  in  the  land  so  bought  which 
the  State  cannot  modify  without  violating  the  provisions  of  the 
Constitution  of  the  United  States.  Such  a  transaction  is  matter 
of  law  and  not  of  contract,  and  as  such  is  not  open  to  constitu- 
tional objections.  Even  as  to  third  parties  an  assessment  is  not 
a  contract  in  the  sense  in  which  that  word  is  used  in  the  Federal 
Constitution.61  A  contract  between  a  city  and  a  waterworks 
company  which  is  void  as  being  ultra  vires,  and  which  the  city 
has  repudiated,  cannot  be  set  up  by  it  as  impaired  by  subsequent 


L.  R.  A.  142,  35  S.  E.  994,  7  Am.  •»  Hindman  v.  Boyd  (Wash.,  190G), 

Elec.  Cas.  25.  84  Pac.  609. 

59  Clarksburg  Electric  Light  Co.  v.  8I  Essex    Public    Road    Board    v. 

City  of  Clarksburg,  47  W.  Va.  739,  50  Skinkle,  140  U.  S.  334,  11  Sup.  Ct. 

L.  R.  A.  142,  35  S.  E.  994,  7  Am.  790,  35  L.  ed.  446. 
Elec.  Caa.  25. 

495 


§   315  OBLIGATION    OF   CONTRACTS 

state  legislation,  as  such  contract  cannot  be  protected  against 
state  legislation  by  the  Constitution  of  the  United  States.62  If 
there  is  a  defective  acknowledgment  of  a  corporate  charter  a 
curative  statute  affecting  the  personal  liability  of  the  incorpo- 
rators on  the  company's  contract  does  not  operate  so  as  to  im- 
pair the  contract  obligation  of  the  other  party  to  the  contract.63 
So  a  charter  may  be  amended  although  it  contains  a  grant  of 
perpetual  succession  where  rights  of  property  have  not  vested, 
as  such  grant  is  held  not  to  be  a  contract.64  Nor  is  the  obliga- 
tion of  contract  impaired  by  a  statute  amending  the  Indian  law 
in  relation  to  the  erection  of  poles  and  wires  on  the  Tonawanda 
reservation.65  Nor  are  contract  rights,  arising  from  an  ex- 
clusive right  to  supply  gas  to  a  city  and  its  inhabitants,  im- 
paired by  charges  against  the  gas  company  occasioned  by  a 
necessary  public  improvement,  such  as  a  drainage  system  un- 
dertaken by  a  municipality  under  statutory  authority.66  And 
a  general  statute  which  empowers  a  telegraph  company  to  con- 
struct, operate  and  maintain  its  lines  along  and  over  the  public 
highways  and  streets  of  the  cities  and  towns  of  the  State,  or 
across  and  under  the  waters  and  over  any  public  works  belong- 
ing to  the  State,  does  not  create  such  a  contract  between  the 
State  and  the  company  as  to  create  an  immunity  from  rental 
charges  imposed  by  a  city  for  the  use  and  occupation  of  its 
streets  under  a  prior  statute  giving  control  of  such  streets, 
especially  so  where  by  the  later  enactment  the  State  does  not 
resume  the  control  of  the  streets  given  by  the  earlier  statute.67 
If  gas  street  lamp-posts  are  directed  by  ordinance  to  be  re- 
moved, because  of  the  use  of  electricity  to  light  the  streets  and 

62  New  Orleans  v.  New  Orleans  95  N.  Y.  Supp.  1137,  109  App.  Div. 
Water  Works  Co.,  142  U.  S.  79,  35  911,  aff'd  186  N.  Y.  493,  79  N.  E. 
L.  ed.  943,  12  Sup.  Ct.  142.  728. 

63  Shields  v.  Clifton  Hill  Land  Co.,  86  New  Orleans  Gas  Light  Co.  v. 
94  Tenn.  123,  28  S.  W.  668,  26  Drainage  Commission,  111  La.  838, 
L.  R.  A.  509.  35  So.  929,  case  aff'd  197  U.  S.  453, 

64  So  held  in  Cumberland  &  O.  R.  49  L.  ed.  831,  25  Sup.  Ct.  471. 

Co.  v.  Barren  County  Court,  10  67  City  of  Memphis  v.  Postal  Teleg.- 
Bush  (73  Ky.),  604,  613.  Cable   Co.,    145   Fed.    602,   rev'g  in 

"5  Jennison  v.  Bell  Telephone  Co.,    part  139  Fed.  707. 

496 


OBLIGATION    OF    CONTRACTS  §    316 

consequent  uselessness  of  such  posts,  and  the  city  refuses  to 
pay  interest  for  the  use  thereof,  there  is  no  impairment  of  the 
obligation  of  contract  under  which  the  posts  were  erected  and 
interest  was  agreed  to  be  paid  by  the  city;  and  in  such  case 
where  no  legislative  act  is  shown  to  exist,  from  the  enforcement 
of  which  an  impairment  of  the  obligation  of  such  a  contract  did 
or  could  result,  it  follows  that  solely  an  interpretation  of  the 
contract  is  involved  and  upon  this  ground  no  controversy  being 
presented  within  the  jurisdiction  of  the  Federal  Supreme  Court 
the  writ  of  error  was  dismissed.68  Again,  a  statute,  which  au- 
thorizes a  mode  by  ordinance  and  application .  to  a  Court  of 
Chancery  to  compel  railroad  companies  to  erect  gates  at  cross- 
ings, will  not  impair  the  obligation  of  contract  based  on  charter 
rights,  under  which  the  company  is  operating  by  lease  granting 
the  right  of  grade  crossings  upon  constructing  passages  so  as  not 
to  prevent  the  passage  of  vehicles.69 

§  316.  Same  Subject — Instances  Continued — Railroad 
Charter — Subscriptions  in  Aid  of  Railroad. — None  of  the  es- 
sential elements  of  a  contract  exists  merely  because  a  railroad 
company  is  authorized  by  its  charter  to  receive  subscriptions 
from  municipalities,  no  consideration  being  given  and  there 
being  no  attempted  exercise  of  power.70  So  in  a  case  in  the 
Federal  Supreme  Court  it  appeared  that  the  charter  of  the 
Ohio  and  Mississippi  Railroad  company,  passed  by  the  legis- 
lature of  Indiana  in  1848,  and  a  supplement  in  1849,  authorized 
the  county  commissioners  of  a  county  through  which  the  road 
passed  to  subscribe  for  stock  and  issue  bonds,  provided  a  ma- 
jority of  the  qualified  voters  of  the  county  voted,  on  the  first  of 
March,  1849,  that  this  should  be  done.  The  election  was  held 
on  the  appointed  day,  and  a  majority  of  the  voters  voted  that 
the  subscription  should  be  made.    But  before  the  subscription 

98  St.  Paul  Gas  Light  Co.  v.  City  of  Ch.),  50  Atl.  369.  See  Pittsburg, 
St.  Paul,  181  U.  S.  142,  45  L.  ed.  Ft.  W.  &  C.  R.  Co.  v.  Chicago  (Cook 
788,  21  Sup.  Ct.  575,  writ  of  error  County  Super.  Ct.),  27  Chicago  Leg. 
dismissed  78  Minn.  39,  80  N.  W.  877.    News,  242. 

n  Palmyra  Township,  Inhabitants  70  Wilkes  County  v.  Call,  123  N.  C. 
of,   v.    Pennsylvania  R.   Co.    (N.   J.    308,  31  S.  E.  481,  44  L.  R.  A.  252. 

32  497 


§   317  OBLIGATION   OF   CONTRACTS 

was  made  the  State  adopted  a  new  constitution,  which  went 
into  effect  the  first  day  of  November,  1851.  One  of  the  articles 
prohibited  such  subscriptions,  unless  paid  for  in  cash,  and  pro- 
hibited also  a  county  from  loaning  its  credit  or  borrowing  money 
to  pay  such  subscriptions.  In  1852  the  county  commissioners 
of  Daviess  county  subscribed  for  stock  in  the  railroad  company 
and  issued  their  bonds  for  the  amount.  It  was  held  that  the 
provisions  of  the  railroad  charter,  authorizing  the  commis- 
sioners to  subscribe,  conferred  a  power  upon  a  public  cor- 
poration or  civil  institution  of  government,  which  could  be 
modified,  changed,  enlarged  or  restrained,  by  the  legislative  au- 
thority, the  charter  not  importing  a  contract,  within  the  mean- 
ing of  the  clause  of  the  Constitution  prohibiting  a  State  from 
passing  a  law  impairing  the  obligation  of  contracts.  It  was  also 
held  that  the  mere  vote  to  subscribe  did  not,  of  itself,  form  such 
a  contract  with  the  railroad  company,  as  could  be  protected  by 
the  tenth  section  of  the  first  article  of  the  Constitution  of  the 
United  States,  for  until  the  subscription  was  actually  made  the 
contract  was  unexecuted ;  and  the  bonds,  having  been  issued  in 
violation  of  the  constitution  of  Indiana,  were  void.71 

§  317.  Reservation  of  Power  to  Alter,  Amend  or  Repeal 
Grant  of  Franchise  or  Charter. — Although  a  grant  of  a  fran- 
chise is  in  the  nature  of  a  contract,  yet  if  the  right  to  amend, 
alter  or  repeal  the  grant  be  reserved  to  the  sovereign  it  may  be 
exercised ; 72  and  the  legislative  power  to  alter,  amend  and  re- 
peal charters  is  equally  effectual  whether  it  be  reserved  in  the 
original  act  of  incorporation,  the  articles  of  association  under 
a  general  law,  or  in  the  constitution  of  the  State  in  force  when 
the  incorporation  under  a  general  law  is  made.73    Where  a  pri- 

71  Aspinwall  v.  County  of  Daviess,  73  Polk   v.    Mutual   Reserve   Fund 

22  How.  (63  U.  S.)  364,  16  L.  ed.  296,  Life  Assoc,  of  New  York,  207  U.  S. 

ruling    reaffirmed    and     applied     in  310,  52  L.  ed.  — ,  28  Sup.  Ct.  — . 

Wadsworth    v.    Eau    Claire    County  Power  to   alter,   amend   or  repeal 

Supervisors,  102  U.  S.  534,  26  L.  ed.  exists  when  reserved  by  state  con- 

221.  stitution.    Attorney  Genl.  v.  Chicago 

"Jersey  City  Gas  Light  Co.  v.  &  Northwestern  Rd.  Co.,  35  Wis.  425. 
LTnited  Gas  Improvement  Co.,  46  If  the  constitution  of  the  State  pro- 
Fed.  264,  266,  case  aff'd  58  Fed.  323.  vides  that  the  legislature  may  alter, 

498 


OBLIGATION    OF   CONTRACTS  §   317 

vate  corporation  was  chartered  under  an  act  of  incorporation 
which  was  by  its  terms  subject  to  the  provisions  of  the  Revised 
Statutes,  one  section  of  which  provided  that  "all  acts  of  in- 
corporation hereafter  granted  may  be  amended  or  repealed  at 
the  will  of  the  General  Assembly,  unless  express  provision  be 
made  therein  to  the  contrary,"  it  was  held  that  a  legislative 
enactment  which  operated  as  an  amendment  of  the  company's 
charter  was  not  unconstitutional.74  Some  constitutional  pro- 
visions authorize  a  repeal  only  when  the  charter  is  injurious 
to  the  citizens  of  the  commonwealth,75  and  then  only  in  such 
manner  that  no  injustice  shall  be  done  to  the  incorporators;76 
and  in  the  latter  case  the  provision  is  not  a  restriction  upon  the 
power  but  only  upon  the  manner  of  its  application.77  Where 
a  constitution  provides  that  no  special  privileges  shall  be 
granted  that  may  not  be  altered  or  revoked,  the  General  As- 
sembly will  be  thereby  authorized  to  determine  a  privilege  or 
franchise,  even  though  perpetual  as  to  duration,  granted  to  a 
street  railway  company  to  construct  and  operate  its  line.78 

revoke  or  amend  the  charter  of  any  therefore,    by    referring    to    one    of 

incorporation    an    amendment    of    a  them:    Citizens'    Savings    Bank    v. 

charter  may  be  made  by  the  legisla-  Owensboro,   173  U.   S.  636,  641,  43 

ture   in   accordance  with   the   terms  L.' ed.  840,  19  Sup.  Ct.  530."    North- 

of  the  constitutional  provision.      St.  era  Central  Ry.  Co.  v.  Maryland,  187 

Loujs,    Iron    Mountain    &    Southern  U.  S.  258,  267,  268,  47  L.  ed.  167,  23 

Ry.    Co.    v.    Paul,    64    Ark.    83,   37  Sup.  Ct.  60,  per  White,  J. 

L.  R.  A.  504,  40  S.  W.  705,  62  Am.  74  State  v.  Brown  &  Sharpe  Mfg. 

St.  Rep.  154.  Co.,   18  R.    I.    16,  25  Atl.   246,    17 

"It  is  elementary  that  where  the  L.  R.  A.  856. 

constitution  of  a  State  reserves  the  75  Williamsport  Passenger  R.  Co.'s 

right  to  repeal,  alter  or  amend,  all  Appeal,  120  Pa.  1,   13  Atl.  496,  21 

charters   granted   by   the   legislature  W.  N.  C.  309.    See  Platte  &  D.  Canal 

are  subject  to  such   provision,  and  &  M.  Co.  v.  Dowell,  17  Colo.  376,  30 

therefore  are  wanting  in  that  attri-  Pac.  68;  Northern  Central  R.  Co.  v. 

bute   of   irrevocability   which    is   es-  Holland,  117  Pa.  613,  20  W.  N.  C. 

sential    to    bring    them    within    the  428,  12  Atl.  575. 

intendment  of  the  clause  of  the  Con-  78  Platte  &  D.  Canal  &  M.  Co.  v. 

st it ut ion  of  the  United  States  pro-  Dowell,  17  Colo.  376,  30  Pac.  68. 

tecting  contracts   from   impairment.  "  Consolidated  Gas  Co.  v.  Mitchell 

The  cases  supporting   this   doctrine  (Pa.  C.  P.),  1  Dauph.  Co.  Rep.  71. 

are  so  numerous  that  they  need  not  78  State  v.  Columbus  Ry.  Co.,  24 

be    cited.      We    content    ourselves,  Ohio  Cir.  Ct.  R.  609. 

499 


§   318  OBLIGATION    OF   CONTRACTS 

Again,  a  grant  by  the  legislature  or  by  a  municipality,  when 
authorized  by  legislative  enactment,  may  be  such  a  special 
privilege  as  to  become  a  contract  between  the  State  and  the 
corporators,  vested  and  irrevocable  in  its  nature,  and  one  which 
is  protected  from  impairment.  The  state  constitution  may, 
however,  prohibit  the  grant  of  special,  irrevocable  privileges  or 
franchises.79 

§  318.  Reservation  of  Power  to  Alter,  etc.,  is  Part  of 
Charter  or  Contract. — A  right  reserved  by  a  constitution  or 
statute  or  by  the  charter  itself,  to  alter  or  amend  a  charter  or 
grant  of  a  franchise,  enters,  as  a  term,  stipulation  or  condition, 
into  and  becomes  a  part  of  the  contract  between  the  State  or 
grantor  and  the  corporation  or  grantee.80  So  Code  provisions 
that  a  franchise  is  held  subject  to  the  power  in  a  State  to  with- 
draw it,  and  subject  to  be  changed,  modified  or  destroyed  at 
the  will  of  its  grantor  or  creator  become  in  substance  a  part  of 
the  charter.  "It  is  quite  too  narrow  a  definition  of  the  word 
'franchise,'  as  used  in  this  statute,  to  hold  it  as  meaning  only 
the  right  to  be  a  corporation.  The  word  is  generic,  covering 
all  the  rights  granted  by  the  legislature.  As  the  greater  power 
includes  every  less  power  which  is  a  part  of  it,  the  right  to 
withdraw  a  franchise  must  authorize  a  withdrawal  of  any 
right  or  privilege  which  is  a  part  of  the  franchise."  81  In  other 
words,  if  a  company  accepts  the  grant  of  a  right,  privilege  or 
franchise  upon  condition  that  the  State  may  withdraw  it 
whenever  the  public  interest  may  so  require,  the  reservation 
of  such  right  is  a  part  of  the  contract  with  the  State,  and  its 

7fl  Port  of  Mobile  v.   Louisiana  &  L.  ed.  989;  Wilmington  City  Ry.  Co. 

Nashville  R.  Co.,  84  Ala.  115,  5  Am.  v.  Wilmington  &  B.  S.  Ry.  Co.  (Del. 

St.  Rep.  342,  4  So.  106.  Ch.,  1900),  46  Atl.  12  (citing  numer- 

80  St.  Louis,  Iron  Mountain,  etc.,  ous  cases);  O'Phinney  v.  Sheppard  & 

Ry.  Co.  v.  Paul,  173  U.  S.  404,  408,  Enoch  Pratt  Hospital,  88  Md.  633, 

19  Sup.  Ct.  419,  43  L.  ed.  746,  per  42  Atl.  58;  State  v.  Chicago  &  N.  W. 

Fuller,    C.    J.    (noted    under    §320,  Ry.    Co.,  128  Wis.  449,  108  N.  W. 

herein);   Greenwood   v.   Freight  Co.,  504. 

105  U.  S.  13,  26  L.  ed.  961;  Beer  Co.        81  Railroad  Co.  v.  Georgia,  98  U.  S. 

v.    Massachusetts,   97  U.   S.    25,  24  359,  365,  25  L.  ed.  185. 

500 


OBLIGATION   OF  CONTRACTS  §    318 

exercise  by  the  State  does  not  impair  the  obligation  of  the 
contract  as  prohibited  by  the  constitution,  but  if  such  right  is 
not  reserved  the  franchise  cannot  be  withdrawn  without  im- 
pairing the  obligation  of  contract.82  So  although  a  legislative 
grant  to  a  corporation  of  special  privileges  may  be  a  contract, 
when  the  language  of  the  statute  is  so  explicit  as  to  require 
such  a  construction,  yet  if  one  of  the  conditions  of  the  grant 
be  that  the  legislature  may  alter  or  revoke  it,  a  law  altering 
or  revoking  the  exclusive  character  of  the  granted  privileges 
cannot  be  regarded  as  one  impairing  the  obligation  of  the 
contract.83  Where,  by  a  state  statute,  the  charter  of  a  street 
railroad  company  was  repealed,  and  its  franchises  and  tracks 
were  transferred  to  another,  and  the  company  refused  to  seek 
a  remedy,  a  stockholder  who  asked  an  injunction  on  the  ground 
that  the  statute  impaired  the  obligation  of  a  contract  was  given 
a  standing  in  a  court  of  equity.  Such  a  statute  impairs  the 
obligation  of  a  contract,  unless  the  legislature  reserved  the 
right  to  repeal  the  statute  conferring  the  charter.  In  Massa- 
chusetts such  a  reservation  becomes  a  part  of  every  act  of  in- 
corporation, by  virtue  of  the  General  Statutes,84  which  de- 
clare, "Every  act  of  incorporation  passed  after  the  eleventh 
day  of  March,  in  the  year  one  thousand  eight  hundred  and 
thirty-one,  shall  be  subject  to  amendment,  alteration  or  re- 
peal, at  the  pleasure  of  the  legislature."  Similar  clauses  of 
reservation  exist  in  the  statutes  of  various  States.  By  the 
exercise  of  the  repealing  power  reserved  by  such  a  clause 
the  charter  no  longer  exists,  and  whatever  validity  trans- 
actions entered  into  and  authorized  by  it  while  it  was  in 
force  may  possess,  there  can  be  no  new  transactions  depend- 
ent on  the  special  power  conferred  by  the  charter.  Such 
power  is  abrogated  when  the  law  granting  it  is  repealed. 
Neither  the  rights  of  the  shareholders  to  the  real  and  personal 
property  of  the  corporation,  nor  rights  of  contract,  or  choses  in 
action,  are  destroyed  by  such  repeal;  and  if  the  legislature  has 

82  Central  Rd.    &   Banking  Co.  v.    Hamilton,  146  U.  S.  258,  36  L.  cd. 
State  of  Georgia,  54  Ga.  401,  409.        963,  13  Sup.  Ct.  90. 
M  Hamilton  Gas  Light  &  C.  Co.  v.        «4  Sec.  41,  chap.  68. 

501 


§319  OBLIGATION    OF    CONTRACTS 

provided  no  specific  mode  of  enforcing  and  protecting  such 
rights,  the  courts  will  do  so  by  the  means  within  their  power.85 

§  319.  Reservation  of  Power  to  Alter,  etc.,  and  Limita- 
tions Thereon. — Even  though  the  power  to  amend  or  repeal 
may  be  properly  exercised,  yet  such  power  is  not  without 
limit;  the  alterations  must  be  reasonably  made,  in  good  faith, 
and  consistent  with  the  scope  and  object  of  the  act  of  incorpo- 
ration so  that  under  the  guise  of  amendment  and  alteration 
sheer  oppression  and  wrong  cannot  be  inflicted;  and  beyond 
the  sphere  of  the  reserved  powers  the  vested  rights  of  property 
in  corporations  in  such  cases  is  surrounded  by  the  same  sanc- 
tion and  are  as  unvoidable  as  in  other  cases.86  So  a  power 
reserved  by  a  statute  of  a  State  to  its  legislature,  to  alter, 
amend  or  repeal  a  charter  of  a  railroad  corporation,  authorizes 
the  legislature  to  make  any  alteration  or  amendment  of  a 
charter  granted  subject  to  that  power,  which  will  not  defeat 
or  substantially  impair  the  object  of  the  grant  or  any  rights 
vested  under  it,87  and  which  the  legislature  may  deem  necessary 

85  Greenwood  v.  Freight  Co.,  105  power  to  add  to,  alter,  amend  or  re- 
U.  S.  13,  26  L.  ed.  961.  peal  a  charter  authorizes  the  proper 

86  Stanislaus  County  v.  San  Joa-  legislative  body  to  make  any  addi- 
quin  &  Kings  River  Canal  &  Irriga-  tion,  alteration  or  amendment  which 
tion  Co.,  192  U.  S.  201,  213,  24  Sup.  does  not  substantially  impair  vested 
Ct.  241,  48  L.  ed.  406,  per  Peck-  rights  or  directly  impede  the  accom- 
ham,  J.  (after  reviewing  a  number  of  plishment  of  the  purposes  of  the 
cases).  grant,  and  which  the  legislative  body 

87  New  York  &  N.  E.  R.  Co.  v.  deems  proper  to  secure  the  best  in- 
Bristol,  151  U.  S.  556,  14  Sup.  Ct.  terests  of  the  public."  Union  Pac. 
437,  38  L.  ed.  269;  Holyoke  Co.  v.  Rd.  Co.  v.  Mason  City  &  Ft.  Dodge 
Lyman,  15  Wall.  (82  U.  S.)  500,  21  R.  Co.,  128  Fed.  230,  238,  64  C.  C.  A. 
L.  ed.  133.  See  also  McKee  v.  348  (case  affirms  124  Fed.  409),  cit- 
Chautauqua  Assembly,  130  Fed.  536,  ing  New  York  &  N.  E.  Rd.  Co.  v. 
124  Fed.  808;  Smith  v.  Atchison,  Bristol,  151  U.  S.  556,  14  Sup.  Ct. 
Topeka  &  Santa  Fe  R.  Co.  (C.  C),  437,  38  L.  ed.  269;  Sinking  Fund 
64  Fed.  272;  People  v.  O'Brien,  111  Cases  (Union  Pac.  R.  Co.  v.  United 
N.  Y.  1,19N.  Y.  St.  R.  173,  18  N.  E.  States  and  Central  Pac.  R.  Co.  v. 
692,  2  L.  R.  A.  255,  7  Am.  St.  Rep.  Gallatin),  99  U.  S.  700,  720,  721, 
684.  See  next  following  section  25  L.  ed.  496.  Principal  case  is  aff' d 
herein.  199  U.  S.  160,  50  L.  ed.  134,  26  Sup. 

The  reservation  in  a  charter  "of  a   Ct.  19. 

502 


OBLIGATION    OF    CONTRACTS  §   320 

to  secure  either  that  object  or  other  public  or  private  rights.88 
So  the  reservation,  in  a  charter  of  a  railroad  company,  of  the 
power  to  add  to,  alter,  amend  or  repeal  includes  the  reserva- 
tion of  power  to  condition  the  title  to  a  bridge  and  to  terminal 
facilities  with  the  provision  that  the  joint  use  of  them  shall  be 
allowed  to  other  railroad  companies  for  reasonable  compensa- 
tion, provided  that  this  use  does  not  deprive  the  holder  of  the 
property  of  the  use  of  it  requisite  to  the  handling  of  its  own 
engines  and  trains,  to  the  conduct  of  its  own  business,  and  to 
the  discharge  of  its  corporate  duty  to  the  government  and  to 
the  public.89  If  the  constitution  of  a  State  forbids  the  passage 
of  any  law  impairing  the  obligation  of  contracts  such  pro- 
vision is  held  to  limit  the  power  reserved  in  the  same  constitu- 
tion to  alter  or  repeal  general  laws  for  the  organization  of 
corporations,  so  that  the  legislature  cannot  impair  or  destroy 
contract  obligations  of  third  parties  with  a  corporation.90 

§  320.  Reservation  of  Power  to  Alter,  etc. — Fourteenth 
Amendment — Equal  Protection  of  the  Law — Deprivation  of 
Property — Railroad  Employees. — An  act  of  a  state  legislature 
entitled  "  An  act  to  provide  for  the  protection  of  servants  and 
employees  of  railroads,"  is  not  in  conflict  with  the  provisions  of 
the  Constitution  of  the  United  States.  "The  contention  is 
that  as  to  railroad  corporations  organized  prior  to  its  passage, 
the  act  was  void  because  in  violation  of  the  Fourteenth  Amend- 
ment. Corporations  are  the  creations  of  the  State,  endowed 
with  such  faculties  as  the  State  bestows  and  subject  to  such 
conditions  as  the  State  imposes,  and  if  the  power  to  modify 
their  charters  is  reserved,  that  reservation  is  a  part  of  the  con- 
tract, and  no  change  within  the  legitimate  exercise  of  the  power 
can  be  said  to  impair  its  obligations;  and  as  this  amendment 
rested  on  reasons  deduced  from  the  peculiar  character  of  the 
business  of  the  corporations  affected  and  the  public  nature  of 

88  Holyoke  Co.  v.  Lyman,  15  Wall.  409,  and  aff'd  in  199  U.  S.  160,  50 
(82  U.  S.)  500,  21  L.  ed.  133.  L.  ed.  134,  26  Sup.  Ct.  19. 

89  Union  Pac.  Rd.  Co.  v.  Mason  90  Omaha  Water  Co.  v.  City  of 
City  &  Fort  Dodge  R.  Co.,  128  Fed.  Omaha,  147  Fed.  1,  77  C.  C.  A. 
230,  64  C.  C.  A.  348,  aff'g  124  Fed.  267. 

503 


§    320  OBLIGATION    OF    CONTRACTS 

their  functions,  and  applied  to  all  alike,  the  equal  protection 
of  the  law  was  not  denied.91  The  question,  then,  is  whether 
the  amendment  should  have  been  held  unauthorized  because 
amounting  to  a  deprivation  of  property  forbidden  by  the 
Federal  Constitution.  The  power  to  amend  'cannot  be  used 
to  take  away  property  already  acquired  under  the  operation 
of  the  charter,  or  to  deprive  the  corporation  of  the  fruits  ac- 
tually reduced  to  possession  of  contracts  lawfully  made,' 92 
but  any  alteration  or  amendment  may  be  made  '  that  will  not 
defeat  or  substantially  impair  the  object  of  the  grant,  or  any 
rights  which  have  vested  under  it,  and  that  the  legislature  may 
deem  necessary  to  secure  either  that  object  or  other  public 
or  private  rights.' 93  This  act  was  purely  prospective  in  its 
operation.  It  did  not  interfere  with  vested  rights  or  existing 
contracts,  or  destroy  or  sensibly  encroach  upon,  the  right  to 
contract,  although  it  did  impose  a  duty  in  reference  to  the 
payment  of  wages  actually  earned,  which  restricted  future 
contracts  in  the  particular  named.  In  view  of  the  fact  that 
these  corporations  were  clothed  with  a  public  trust,  and  dis- 
charged duties  of  public  consequence,  affecting  the  community 
at  large,  the  Supreme  Court  held  the  regulation,  as  promoting 
the  public  interest  in  the  protection  of  employees  to  the  limited 
extent  stated,  to  be  properly  within  the  power  to  amend  re- 
served under  the  state  constitution.  Inasmuch  as  the  right 
to  contract  is  not  absolute,  but  may  be  subjected  to  the  re- 
straints demanded  by  the  safety  and  welfare  of  the  State, 
we  do  not  think  that  conclusion  in  its  application  to  the  power 
to  amend  can  be  disputed  on  the  ground  of  infraction  of  the 
Fourteenth  Amendment."  94 

91  Citing  Missouri  Pacific  Ry.  v.  per  Gray,  J.;  Greenwood  v.  Freight 
Mackey,  127  U.  S.  205,  32  L.  ed.  107,  Co.,  105  U.  S.  13,  26  L.  ed.  901; 
8  Sup.  Ct,  1161.  Spring     Valley     Water     Works     v. 

92  Citing  Sinking  Fund  Cases  Schottler,  110  U.  S.  347,  28  L.  ed. 
(Union    Pacific    R.    Co.    v.    United  173,  4  Sup.  Ct.  48. 

States),  99  U.  S.  700,  25  L.  ed.  496,  94  St.  Louis,  Iron  Mountain,  etc., 

per  Waite,  C.  J.  Ry.  Co.  v.  Paul,  173  U.  S.  404,  408, 

93  Citing  Commissioners  v.  Holyoke  19  Sup.  Ct.  419,  43  L.  ed.  746,  per 
Water  Power  Co.,  104  Mass.  446,  451,  Fuller,  C.  J. 

504 


OBLIGATION    OF    CONTRACTS    CONTINUED 


CHAPTER  XX. 


OBLIGATION   OF   CONTRACTS   CONTINUED. 


321.  Reserved  Powers  of  Congress    §  330. 

— Amendment  of  Charter 
of  Subsidized  Railroad — 
Railroad  and  Telegraph 
Company — Cemetery  Com- 
pany. 

322.  Obligation      of      Contract —       331. 

Vested  Rights — Conditions 
as  Affecting  —  Reserved 
Power  of  Congress — Rail- 
road Grants.  332. 

323.  Implied  Reservation  in  Favor 

of  Sovereign  Power.  333. 

324.  Obligation      of      Contract —        334. 

General  and  Special  Laws 

— Reservation  of  Power  to 

Alter  or  Repeal— Quo  War-       335. 

ranto. 

325.  Reservation  of  Right  to  Re-       336. 

peal  —  Exemption  from 
Legislative  Repeal  —  Im- 
pairment of  Obligation  of 
Contracts.  337. 

326.  Exemption  from  Execution — 

Corporation  Grantee  of 
Municipal  Waterworks  — 
Obligation  of  Contract.  338. 

327.  Exemption  —  Eminent      Do- 

main— Future     Legislation 

— Obligation    of   Contract.        339. 

328.  Reservation     of     Power     to 

Amend  Charters — Supple- 
mentary Charter. 

329.  Obligation      of      Contract  — 

— Mortgaged   Franchise   or        340. 
Property — Purchaser — Re- 
organization    of    Corpora- 
tion. 


Obligation  of  Contract  — 
Franchises  Expiring  at 
Different  Times  —  Exten- 
sion of  Franchise — Reser- 
vation of  Power  to  Amend 
or  Repeal. 
Obligation  of  Contract  not 
Impaired — Consolidation  of 
Corporations —  Reservation 
of  Power  to  Alter  or  Repeal. 
Eminent  Domain — Obligation 

of  Contracts. 
Same  Subject — Instances. 
Constitution        Subsequently 
Adopted — Obligation        of 
Contract. 
Obligation  of  Contracts — Po- 
lice Powers — Regulations. 
Obligation      of     Contracts — 
Conditions — Regulations  — 
Reserved     Power  to  Alter 
etc. 
Obligation      of     Contracts — 
Street    Paving    by    Street 
Railways — Conditions    and 
Regulations. 
Same       Subject — Exemption 
from  Assessment  for  Street 
Paving — Consolidation. 
Impairment  of  Obligation  of 
Contracts — Illustrative  De- 
cisions— Insurance —  Banks 
— Rate    of    Interest — Pull- 
man Cars. 
Impairment  of  Obligation  of 
Contracts — Illustrative  De- 
cisions Continued — Tunnel 
— Ferries — Bridges — Canal 

505 


§   321  OBLIGATION    OF    CONTRACTS    CONTINUED 

§  321.  Reserved  Powers  of  Congress — Amendment  of 
Charter  of  Subsidized  Railroad — Railroad  and  Telegraph 
Company — Cemetery  Company. — The  objects  which  Congress 
sought  to  accomplish  by  the  act  of  July  1,  1862, ]  granting  a 
subsidy  to  aid  in  the  construction  of  both  a  railroad  and  a 
telegraph  line  from  the  Missouri  River  to  the  Pacific  Ocean,  and 
by  the  act  of  July  2,  1864,2  amendatory  thereof,  were  the  con- 
struction, the  maintenance  and  the  operation  of  both  a  railroad 
and  a  telegraph  line  between  those  two  points;  the  govern- 
mental aid  was  extended  for  the  purpose  of  accomplishing  all 
these  important  results,  nor  is  there  anything  in  subsequent 
legislation  to  indicate  a  change  of  this  purpose.  The  provisions 
in  those  acts  permitting  the  railroad  company  to  arrange  with 
certain  telegraph  companies  for  placing  their  lines  upon  and 
along  the  route  of  the  railroad  and  its  branches,  did  not  affect 
the  authority  of  Congress,  under  its  reserved  power,  to  require 
the  maintenance  and  operation  by  the  railroad  company  itself, 
through  its  own  officers  and  employees,  of  a  telegraph  line 
over  and  along  its  main  line  and  branches.  An  arrangement 
between  the  railroad  company  and  the  telegraph  company, 
such  as  was  permitted  under  the  acts  of  1862  and  1864,3 
could  have  no  other  effect  than  to  relieve  the  railroad  com- 
pany from  any  present  duty  itself  to  construct  a  telegraph 
line  to  be  used  under  the  franchises  granted  and  for  the  pur- 
poses indicated  by  Congress.  No  arrangement  of  the  charac- 
ter indicated  by  Congress  could  have  been  made  except  in  view 
of  the  possibility  of  the  exercise  by  Congress  of  the  power  re- 
served to  add  to,  alter  or  amend  the  act  that  permitted  such 
arrangement.  It  was  not  competent  for  Congress  under  its 
reserved  power  to  add  to,  alter  or  amend  these  acts,  to  impose 
upon  the  railroad  companies  duties  wholly  foreign  to  the 
objects  for  which  it  was  created  or  for  which  governmental 
aid  was  given,  nor,  by  alteration  or  amendment  of  those  acts, 
destroy  rights  actually  vested,  nor  disturb  transactions  fully 

1  Chap.  120,  12  Stat.  489.  act  July  2,  1864,  chap.  220,  known  as 

2  Chap.  216,  13  Stat.  356.  the  Idaho  Act. 

3  Sec.  19,  act  July  118,  62,  and  §4, 

506 


OBLIGATION    OF    CONTRACTS    CONTINUED  §    321 

consummated.  The  provisions  of  the  act  of  1888,4  requiring 
all  railroad  and  telegraph  companies  to  which  the  United 
States  have  granted  subsidies,  to  "forthwith  and  hence- 
forward, by  and  through  their  own  respective  corporate 
officers  and  employees,  maintain  and  operate,  for  railroad, 
governmental,  commercial,  and  all  other  purposes,  telegraph 
lines,  and  exercise  by  themselves  alone  all  the  telegraph  fran- 
chises conferred  upon  them  and  obligations  assumed  by  them 
under  the  acts  making  the  grants,"  is  a  valid  exercise  of  the 
power  reserved  by  Congress.5  In  the  Sinking-Fund  Cases  the 
legislation  of  Congress  in  relation  to  the  Central  Pacific  Rail- 
road Company  and  the  Western  Pacific  Railroad  Company — 
the  latter  being  by  consolidation  a  part  of  the  former — was 
considered,  and  it  was  held,  1.  That,  to  the  extent  of  the 
powers,  rights,  privileges  and  immunities  thereby  granted, 
Congress  retained  the  right  of  amendment,  and  by  exercising 
it  could,  in  a  manner  not  inconsistent  with  the  original  charter 
granted  by  California,  as  modified  by  the  act  of  that  State 
passed  in  1864,  accepting  what  had  been  done  by  Congress, 
regulate  the  administration  of  the  affairs  of  the  company  in 
reference  to  the  debts  created  by  it  under  authority  of  such 
legislation.  2.  That  the  establishment  of  the  sinking-fund 
by  the  act  of  May  7,  1878,  did  not  conflict  with  anything  in 
said  charter.  It  was  also  decided  that  the  establishment  of 
the  fund  was  a  reasonable  regulation  of  the  administration 
of  the  affairs  of  the  companies,  promotive  alike  of  the  inter- 
ests of  the  public  and  of  the  corporators,  and  was  warranted 
under  the  authority  which  Congress  had,  by  way  of  amend- 
ment, to  change  or  modify  the  rights,  privileges  and  immuni- 
ties granted  by  it.  The  right  of  amendment,  alteration  or 
repeal  reserved  by  Congress  in  said  acts  of  1862  and  1864  was 
also  considered.8    In  another  case  it  appeared  that  a  cemetery 

4  Act  Aug.  7,  1888,  chap.  772,  25  190.      See  United  States  v.  Western 

Stat.  382.  Union  Teleg.  Co.,  50  Fed.  28. 

'United    States   v.    Union    Pacific        "Sinking  Fund  Cases  (Union  Pac, 

Ry.  Co.  &  Western   Un.  Teleg.  Co.,  R.   Co.   v.   United  States),  99  U.   S. 

160  U  S.  1,  40  L.  ed.  319,  16  Sup.  Ct.  700,  25  L.  ed.  496. 

507 


§    321  OBLIGATION    OF    CONTRACTS    CONTINUED 

company  was  incorporated  in  1854  by  an  act  of  Congress  which 
authorized  it  to  purchase  and  hold  ninety  acres  of  land  in  the 
District  of  Columbia,  and  to  receive  gifts  and  bequests  for  the 
purpose  of  ornamenting  and  improving  the  cemetery ;  enacted 
that  its  affairs  should  be  conducted  by  a  president  and  three 
other  managers,  to  be  elected  annually  by  the  votes  of  the 
proprietors,  and  to  have  power  to  lay  out  and  ornament  the 
grounds,  to  sell  or  dispose  of  burial  lots,  and  to  make  by-laws 
for  the  conduct  of  its  affairs  and  the  government  of  lot-holders 
and  visitors;  fixed  the  amount  of  capital  stock  to  be  divided 
among  the  proprietors  according  to  their  respective  interests; 
and  provided  that  the  land  dedicated  to  the  purposes  of  a 
cemetery  should  not  be  subject  to  taxation  of  any  kind,  and 
no  highways  should  be  opened  through  it,  and  that  it  should 
be  lawful  for  Congress  thereafter  to  alter,  amend,  modify  or 
repeal  the  act.  Presently  afterward  thirty  of  the  ninety  acres 
were  laid  out  as  a  cemetery,  the  cemetery  was  dedicated  by 
public  religious  services,  and  a  pamphlet  was  published,  con- 
taining a  copy  of  the  charter,  a  list  of  the  officers,  an  account  of 
the  proceedings  at  the  dedication,  describing  the  cemetery  as 
"altogether  comprising  ninety  acres,  thirty  of  which  are  now 
fully  prepared  for  interments,"  and  the  by-laws  of  the  corpo- 
ration, which  declared  that  all  lots  should  be  held  in  pursuance 
of  the  charter.  No  stock  was  ever  issued,  but  the  owner  of 
the  whole  tract,  named  in  the  charter  as  one  of  the  original 
associates,  and  in  the  list  published  in  the  pamphlet  as  the 
president  and  manager  of  the  corporation,  knowing  all  the 
above  facts,  and  never  objecting  to  the  appropriation  of  the 
property  as  appearing  thereby,  for  more  than  twenty  years 
managed  the  cemetery,  sold  about  two  thousand  burial  lots, 
and  gave  to  each  purchaser  a  copy  of  the  pamphlet,  and  a 
deed  of  the  lot,  signed  by  himself  as  president,  bearing  the 
seal  of  the  corporation,  and  having  the  by-laws  printed  thereon. 
In  1877  Congress  passed  an  act,  amending  the  charter  of  the 
corporation  providing  that  its  property  and  affairs  should  be 
managed,  so  as  to  secure  the  equitable  rights  of  all  persons 
having  any  vested  interest  in  the  cemetery  by  a  board  of  five 
508 


OBLIGATION    OF    CONTRACTS    CONTINUED  §   322 

trustees  to  be  elected  annually,  three  by  the  proprietors  of  lots 
owned  in  good  faith  upon  which  a  burial  had  been  made,  and 
two  by  the  original  proprietors;  and  that  of  the  gross  receipts 
arising  from  the  future  sale  of  lots  one-fourth  should  be  annually 
paid  by  the  trustees  to  the  original  proprietors  and  the  rest  be 
devoted  to  the  improvement  and  maintenance  of  the  cemetery. 
It  was  held  that  the  act  of  1877  wTas  a  constitutional  exercise 
of  the  power  of  amendment  reserved  in  the  act  of  1854;  that 
the  owner  of  the  land  was  estopped  to  deny  the  existence  of  the 
corporation,  the  setting  apart  of  the  whole  ninety  acres  as  a 
cemetery,  the  right  of  the  lot-holders  to  elect  a  majority  of 
the  trustees;  and  that  he  was  in  equity  bound  to  convey  the 
whole  tract  to  the  corporation  in  fee,  and  to  account  to  the 
corporation  for  three-fourths  of  the  sums  received  by  him 
from  sales  of  lots  since  the  act  of  1877;  and  the  corporation  to 
pay  him  one-fourth  of  the  gross  receipts  from  future  sales  of 
lots.7 

§322.  Obligation  of  Contract— Vested  Rights— Condi- 
tions as  Affecting — Reserved  Power  of  Congress — Railroad 
Grants. — Where  a  statute  authorizes  railway  companies  to 
build  across  and  upon  city  streets  but  makes  the  city's  assent 
a  prerequisite,  if  such  consent  in  due  form  is  secured  the  com- 
pany's right,  in  so  far  as  the  designated  streets  are  concerned, 
to  build  its  tracks,  is  complete.  If  the  company  accepts  the 
privilege  the  right  becomes  vested,  fixed  and  certain,  the  city's 
consent  cannot  be  recalled,  and  the  right  so  vested  can  only  be 
revoked  in  an  action,  brought  under  the  State's  authority, 
to  forfeit  it.8    And  when  an  act  granting  public  lands  to  aid 

7  Close  v.  Glenwood  Cemetery,  107  Bristol,  151  U.  S.  556,  567,  38  L.  ed. 

U.  S.  466,  27  L.  ed.  789,  3  Sup.  Ct.  10,  269,    14    Sup.    Ct.    437;    Louisville 

cited  in  Citizens'  Savings    Bunk   v.  Water  Co.  v.  Clark,  143  U.  S.  1,  14, 

Owensboro,  173  U.  S.  636,  647,  43  L.  12  Sup.  Ct.  346,  36  L.  ed.  55;  Gibbs 

ed.  840,  19  Sup.  Ct.  530;  Covington  v.  Consol.  Gas  Co.  of  Baltimore,  130 

v.  Kentucky,  173  U.  S.  231,  239,  19  U.  S.  396,  408,  32  L.  ed.  979,  9  Sup. 

Sup.  Ct.  383,  43  L.  ed.  679;  United  Ct.  553. 

States  v.  Union  Pacific  Ry.  Co.,  160       8  Denniston  &  Sherman  Ry.  Co.  v. 

U.  S.  1,  37,  40  L.  ed.  319,  16  Sup.  Ct.  St.  Louis  Southwestern  Ry.  Co.,  30 

190;  New  York  &  N.  E.  R.  Co.  v.  Tex.  Civ.  App.  474,476,  72  S.  W.  201. 

509 


§§    323,    324      OBLIGATION    OF    CONTRACTS    CONTINUED 

in  the  construction  of  a  railroad  provides  that  patents  shall 
issue  from  time  to  time,  as  sections  of  the  road  are  completed, 
but  reserves  to  Congress  the  right  at  any  time  "to  add  to,  alter, 
amend,  or  repeal  this  act,"  Congress  may,  without  violating 
the  Constitution  of  the  United  States,  by  subsequent  act 
passed  before  any  of  the  road  is  constructed,  or  any  of  the  land 
earned,  require  the  cost  of  surveying,  selecting  and  conveying 
the  land  to  be  paid  into  the  treasury  of  the  United  States  be- 
fore the  conveyance  of  the  granted  lands  to  any  party  entitled 
thereto.9 

§  323.  Implied  Reservation  in  Favor  of  Sovereign  Power. 

— When  a  grant  has  once  been  made  by  legislative  authority, 
to  the  extent  of  the  rights  conferred  the  power  which  made  it 
is  expended,  and  it  cannot  be  taken  back  or  transferred  to 
another,  until  the  public  interests  and  welfare  shall  demand 
its  resumption,  and  provision  shall  have  been  made  for  just 
compensation  to  the  owner  in  the  manner  required  by  law. 
This  rests  upon  an  implied  reservation  to  that  effect  or  extent 
in  favor  of  the  sovereign  power.10  So  the  right  to  lay  tracks  in 
city  streets  is  held  to  be  taken  subject  to  the  implied  power  of 
the  State  to  modify  ordinances  of  the  city  so  that  the  latter  may 
be  empowered  to  forbid  construction  of  tracks,  etc.,  without 
compensation  to  owners  of  abutting  property,  and  such  enact- 
ment will  not  be  unconstitutional.11  There  may  also  be  an 
implied  reservation  of  power,  in  a  charter  to  a  railroad  com- 
pany, to  incorporate  companies  to  transport  other  than  pas- 
sengers.12 

§  324.  Obligation  of  Contract — General  and  Special  Laws 
— Reservation  of  Power  to  Alter  or  Repeal — Quo  Warranto. 

— Where  a  state  constitution  provides  that  corporations  may 

0  Northern  Pac.  R.  R.  Co.  v.  Traill  R.    Co.,    57    Iowa,   393,    10    N.    W. 

County,  115  U.  S.  600,  29  L.  ed.  477,  754. 
6  Sup.  Ct.  201.  12  Richmond,  F.   &  P.  R.  Co.   v. 

10  Mills  v.  County  of  St.  Clair,  7  Louisa.  R.  Co.,  13  How.  (54  U.  S.) 
111.  197,  227.  71,   14   L.   ed.   55,   considered  more 

11  Drady  v.  Des  Moines  &  Ft.  D.  fully  under  §  333,  herein. 

510 


OBLIGATION    OF    CONTRACTS    CONTINUED  §    324 

be  formed  under  general  laws,  but  shall  not  be  created  by  special 
act,  except  for  municipal  purposes,  and  in  cases  where,  in  the 
judgment  of  the  legislature,  the  objects  of  the  corporation  can- 
not be  attained  under  general  laws,  and  reserves  the  power  to 
alter  or  repeal  from  time  to  time  all  general  laws  and  special 
acts  passed  in  pursuance  of  such  provision ;  a  special  act  may  be 
passed  taxing  the  receipts  of  a  corporation.13  The  legislature 
may  also  by  special  act  impose  restrictions  or  other  burdens 
upon  a  railroad ;  14  but  it  cannot  deprive  a  corporation  of  its 
property  or  annul  or  interfere  with  its  contracts  with  third 
persons;  15  and  it  is  also  held  that  the  charter  of  a  corporation 
cannot  be  amended  thereunder.16  In  a  case  in  the  Federal 
Supreme  Court  it  appeared  that  the  constitution  of  New  York, 
made  in  1826,  ordained  that  "corporations  may  be  formed 
under  general  laws,  but  shall  not  be  created  by  special  act 
except  in  certain  cases;"  and  also  "that  all  general  laws  and 
special  acts,  passed  pursuant  to  this  section,  may  be  altered 
from  time  to  time  or  repealed."  A  statute  of  New  York,  passed 
in  1828,  enacted,  "that  the  charter  of  every  corporation  that 
shall  be  thereafter  granted  by  the  legislature  shall  be  subject 
to  alteration,  suspension  and  repeal,  in  the  discretion  of  the 
legislature."  In  this  state  of  things,  a  general  railroad  law 
was  passed  in  1850,  authorizing  the  formation  of  railroad 
corporations  with  thirteen  directors.  The  formation  of  a  com- 
pany under  this  general  law  being  subsequently  contemplated, 
with  a  capital  of  $800,000,  to  build  a  road  fifty  miles  long, 
the  legislature  authorized  the  city  of  Rochester  to  subscribe 
$300,000  to  it,  and  enacted  that  if  the  company  accepted  the 

13  Mayor  v.  Twenty-Thinl  St.   R.  Co.,  113  N.  Y.  311,  22  N.  Y.  St.  R. 

Co.,  113  N.  Y.  311,  22  N.  Y.  St.  R.  958,  21  N.  E.  60,  aff'g  48  Hun,  552, 

958,  21  X.  E.  60,  aff'g  48  Hun,  552,  16  N.  Y.  St.  R.  137,  1  N.  Y.  Supp. 

16  X.  Y.  St.  R.  137,  1  X.  Y.  Supp.  2!).",;  Peoples  v.  O'Brien,  111  X.  Y.  1. 

295.  L9  X.  Y.  St.  H.   173,  18  N.  E.  692, 

"People,    Kimball,    v.    Boston    &  rev'g    I")   Hun,  519,  10  N.  Y.  St.  R. 

Albany  R.  Co.,  70  X.  Y.  569.     Ex-  596,  27  W.  D.  365;  People,  Gag<\  v. 

amine  Barnes  v.  Arnold,  45  N.   Y.  Lohnas,  54  Hun,  604. 

App.  Div.  314,  "Lord    v.    Equitable    bit'''    \ 

15  Mayor  v.  Twenty-Third  St.   R.  Soc.,  94  N.  Y.  Supp.  65,  47  Misc.  187, 

511 


§   324  OBLIGATION    OF    CONTRACTS    CONTINUED 

subscription,  the  city  should  appoint  one  director  for  every 
$75,000  subscribed  by  it,  that  is  to  say,  should  appoint  four 
directors  out  of  the  thirteen  contemplated;  the  other  stock- 
holders, of  course,  appointing  the  remaining  nine.  The  com- 
pany did  accept  the  subscription,  and  the  stockholders  other 
than  the  city  subscribed  $677,500,  but  paid  up  only,  $255,000. 
Then  the  enterprise  for  all  but  eighteen  miles  of  the  road  was 
abandoned.  The  city  had  paid  its  $300,000  subscribed.  In 
1867  the  legislature  passed  another  act  giving  the  city  power 
to  appoint  one  director  for  every  $42,855.57  of  stock  owned 
by  the  city;  in  other  words,  establishing  the  same  ratio  that 
existed  among  the  subscribers  for  the  stock  at  the  time  the 
original  subscription  was  made.  The  effect  was  to  give  the 
city  seven  directors  and  to  leave  the  other  stockholders  but 
six.  These  last  stockholders  regarding  the  act  of  1850  as 
making  a  contract  that  they  should  have  nine  directors  and 
the  city  but  four,  and  that  the  act  of  1867  violated  that  con- 
tract, elected  their  old  nine.  It  was  held,  on  a  quo  warranto, 
that  the  act  of  1867  did  not,  in  view  of  the  state  constitution 
and  the  act  of  1828  making  charters  subject  to  alteration, 
suspension  and  repeal,  make  such  a  contract,  and  that  the 
act  of  1867  was  constitutional.17  If  the  life  of  a  corporation  is 
by  special  charter  to  continue  for  sixty  years  and  is  not  sub- 
ject to  alteration  or  amendment  until  after  the  period  of  thirty 
years  except  in  case  of  a  violation  of  the  charter,  the  expiration 
of  the  period  of  thirty  years  limits  the  time  before  which  any 
amendment  or  alteration  of  the  charter  can  be  made,  even 
though  a  general  law  adopted  by  the  special  charter  would 
have  permitted  an  alteration  before  that  period  had  elapsed; 
this  especially  applies  where  the  legislature  had  not  attempted 
to  forfeit  or  alter  said  charter  within  the  thirty  years.18  If 
the  constitution  provides  for  the  alteration  or  repeal  of  all 
general  laws  and  special  acts,  a  railroad  corporation  whether 
incorporated  under  either  law  is  subject  to  the  constitu- 
tional provision  and  cannot  claim  an  impairment  of  the  obli- 

17  Miller  v.  State,  15  Wall.  (82  U.        1S  Tripp    v.    Pontiac    &  L.   Plank 
S.)  478,  21  L.  ed.  98.  Road  Co.,  66  Mich.  1.  32  N.  W.  907. 

512 


OBLIGATION    OF    CONTRACTS    CONTINUED  §    325 

gation  of   contract   in   case  of  an   alteration  or  repeal  of  its 
charter.19 


§  325.  Reservation  of  Right  to  Repeal — Exemption  from 
Legislative  Repeal — Impairment  of  Obligation  of  Con- 
tracts.— Statutory  reservations  of  the  right  to  repeal,  unlike 
similar  constitutional  provisions,  are  only  binding  on  a  suc- 
ceeding legislature  so  far  as  it  chooses  to  conform  to  them; 
and,  if  it  so  intends,  an  irrepealable  legislative  contract  may- 
be made.  It  is,  therefore,  in  every  case  a  question  whether 
the  legislature  making  the  contract  intended  that  the  former 
provision  for  repeal  or  amendment  should  by  implication  be- 
come a  part  of  the  new  contract.20  In  a  Federal  case  it  appeared 
that  on  February  14, 1856,  the  legislature  of  Kentucky  enacted: 
"That  all  charters  and  grants  of  and  to  corporations  or  amend- 
ments thereof,  shall  be  subject  to  amendment  or  repeal  at 
the  will  of  the  legislature,  unless  a  contrary  intent  be  therein 
expressed."  By  an  act  passed  January  22,  1869,  amending 
the  charter  of  a  gas  company  which  was  subject  to  that  pro- 
vision in  the  act  of  1856,  it  was  enacted:  "That  said  gas 
company  shall  have  the  exclusive  privilege  of  erecting  and  estab- 
lishing gas  works  in  the  city  of  Louisville  during  the  contin- 
uance of  this  charter,  and  of  vending  coal  gas  lights,  and  sup- 
plying the  city  and  citizens  with  gas  by  means  of  public  works," 
etc.;  it  was  held  that  the  latter  act  contained  a  clear  expression 
of  the  legislative  intent,  that  the  company  should  continue  to 
enjoy  the  franchise  then  possessed  by  it  for  the  term  named  in 
that  act  without  being  subject  to  have  its  charter  in  that 
respect  amended  or  repealed  at  the  will  of  the  legislature.21 
The  rule,  that  a  special  statutory  exemption  does  not  pass  to 
a  oew  corporation  succeeding  others  by  consolidation  or  pur- 
chase in  the  absence  of  express  direction  to  that  effect  in  the 
statute,  is  applicable  where  the  constituent  companies  arc 

19  Matthews    v.    Board   of  Corpo-       "  Louisville  Gas  Co.  v.  Citizens' 

ration  Commrs.  of  N.  C  ,97  I  -I    100  Gas  Co.,  LIS  U.  S.  683,29  L.  ed.  510, 

»New  Jersey  v    Yard,  '.»■",   I  .  S.  6  Sup.  Ct.  265. 
104,  24  L.  ed.  3.52. 

33  518 


§§    326,    327      OBLIGATION    OF    CONTRACTS    CONTINUED 

held  and  operated  by  one  of  them,  under  authority  of  the 
legislature.  And  where  a  contract  which  is  claimed  to  have 
been  impaired  was  made  with  one  of  several  corporations 
merged  into  the  complainant,  and  concededly  affects  only  the 
property  and  franchises  originally  belonging  to  such  constituent 
company,  divisional  relief  cannot  be  granted  affecting  only 
such  property,  when  the  bill  is  not  framed  in  that  aspect  but 
prays  for  a  suspension  of  the  impairing  ordinance  as  to  all  of 
complainant's   property.22 

326.  Exemption  from  Execution— Corporation  Grantee 
of  Municipal  Waterworks— Obligation  of  Contract.23— Where 
a  municipality  which  owned  waterworks  conveyed  them  to  a 
corporation,  formed  for  the  purpose  of  maintaining  and  en- 
larging them,  and  received  therefor  shares  of  stock,  which 
the  statute  authorizing  the  conveyance  declared  should  not 
be  liable  for  the  debts  of  the  city,  but  should  be  reserved  for 
the  benefit  of  the  holders  of  the  bonds  that  had  been  issued  by 
the  city  to  raise  the  means  wherewith  to  construct  the  works, 
such  statute  does  not,  by  thus  exempting  those  shares  from 
seizure,  impair  the  obligation  of  any  contract,  as  they  merely 
represent  the  city's  ownership  in  the  waterworks  which  was, 
before  the  enactment  of  the  statute,  exempt  from  seizure  and 
sale  under  execution.24 

§  327.  Exemption— Eminent  Domain— Future  Legisla- 
tion— Obligation  of  Contract.25 — There  exists  no  such  contract 
between  the  State  and  a  railroad  company  as  exempts  the 
latter  from  the  operation  of  a  state  constitutional  provision, 
requiring  that  corporations  invested  with  the  privilege  of  tak- 
ing private  property  for  public  use  shall  make  compensation 
for  property  injured  or  destroyed  by  the  construction  or  en- 

22  People's  Gas  Light  &  Coke  Co.  600,  26  L.  ed.  1184.  See  Myers  v. 
v.  Chicago,  194  U.  S.  1,  48  L.  ed.  Moran,  99  N.  Y.  Supp.  269,  113  App. 
851,  24  Sup.  Ct.  520.  Div.  427. 

23  See  §  20,  herein  as  to  an  exemp-  25  See  §  20,  herein,  as  to  an  exemp- 
tion being  a  franchise.  tion  being  a  franchise. 

24  New  Orleans  v.  Morris,  105  U.  S. 

514 


OBLIGATION    OF    CONTRACTS    CONTINUED        §§    328,    329 

largement  of  their  works,  highways  or  improvements,  where 
neither  the  charter  of  the  company  nor  supplementary  acts  of 
the  legislature  contain  such  a  contract;  nor  does  the  consti- 
tutional provision,  as  applied  to  the  company,  in  respect  to 
cases  afterward  arising,  impair  the  obligation  of  any  contract 
between  it  and  the  State.  Since  there  was  in  such  case  no 
prior  contract  with  the  company  exempting  it  from  liability 
from  future  legislation  in  respect  to  the  subject-matter  in- 
volved, the  company  took  its  original  charter  subject  to  the 
general  law  of  the  State,  and  to  such  changes  as  might  be 
made  in  that  general  law,  and  subject  to  future  constitutional 
provisions  and  future  general  legislation.  Exemption  from 
future  general  legislation  either  by  a  constitutional  provision 
or  by  an  act  of  the  legislature,  cannot  be  admitted  to  exist, 
unless  it  is  expressly  given,  or  unless  it  follows  by  an  impli- 
cation equally  clear  with  express  words.26 

§  328.  Reservation  of  Power  to  Amend  Charters — Sup- 
plementary Charter. — A  statute  of  a  State,  which  declares 
that  all  charters  of  corporations  granted  after  its  passage  may 
be  altered,  amended  or  repealed  by  the  legislature,  does  not 
necessarily  apply  to  supplements  to  an  existing  charter  which 
were  enacted  subsequently  to  the  statute.  Nor  does  a  pro- 
vision which  declares  that  "this  supplement,  and  the  charter 
to  which  it  is  a  supplement,  may  be  altered  or  amended  by 
the  legislature,"  apply  to  a  contract  with  the  corporation 
made  in  a  supplement  thereafter  passed.27 

§  329.  Obligation  of  Contract — Mortgaged  Franchise  or 
Property  —  Purchaser  —  Reorganization  of  Corporation.  — 

Where  a  new  corporation  is  organized  to  operate  a  road,  by 
a  mortgagee,  who  has  purchased  the  franchise  to  take  tolls, 
the  legislature  has  no  power  over  the  franchise  so  purchased 

"  Pennsylvania  R.  R.  Co.  v.  Miller,       "New  Jersey  v.  Yard,  <)5  U.  S. 

132  U.  S.  75,  10  Sup.  Ct.  34,  33  L.  ed.  104,  24  L.  ed.  352.    Examine  Pin. nix 

267,  cited  mi  the  las!  point  in  Pearsall  v.  Trustees  of  Columbia  College,  84 

v.Greal  Northern  Ry. Co.,  161   U.S.  X.    Y.    Bupp.    897,    87    App.   Div. 

646,  40  L.  cd.  838,  16  Sup.  Ct.  705.  438. 

515 


§    330  OBLIGATION    OF    CONTRACTS    CONTINUED 

even  though  the  new  corporation's  charter  is  made  subject 
to  legislative  changes.28  But  provisions  in  the  railway  law  of 
Michigan  of  1873,  for  the  creation  of  a  new  corporation  upon 
the  reorganization  of  a  railroad  by  the  purchaser  at  a  fore- 
closure sale,  are  held  not  to  constitute  a  contract  within  the 
impairment  clause  of  the  Constitution  of  the  United  States.29 
So  the  authority  conferred  by  acts  of  the  legislature  of  New 
York  30  upon  purchasers  at  a  foreclosure  sale  of  a  railroad,  to 
organize  a  corporation  to  receive  and  hold  the  purchased 
property,  creates  no  contract  with  the  State.  The  imposition 
under  the  provisions  of  the  act  of  the  legislature  of  New  York 
of  1886,31  of  a  tax  upon  a  corporation  so  organized  after  the 
passage  of  that  act  by  purchasers  who  purchased  at  a  fore- 
closure sale  made  before  its  passage,  for  the  privilege  of  be- 
coming a  corporation,  violates  no  contract  of  the  State  and  is 
no  violation  of  the  Constitution  of  the  United  States.32  A 
provision  in  an  act  for  the  reorganization  of  an  embarrassed 
corporation,  which  provides  that  all  holders  of  its  mortgage 
bonds  who  do  not,  within  a  given  time  named  in  the  act,  ex- 
pressly dissent  from  the  plan  of  reorganization,  shall  be  deemed 
to  have  assented  to  it,  and  which  provides  for  reasonable  no- 
tice to  all  bondholders,  does  not  impair  the  obligation  of  a 
contract,  and  is  valid.33 

§  330.  Obligation  of  Contract— Franchises  Expiring  at 
Different  Times — Extension  of  Franchise — Reservation  of 
Power  to  Amend  or  Repeal. — Ordinances  granting  an  exten- 
sion to  a  consolidated  street  railway  corporation,  possessing 
franchises  expiring  at  different  times,  on  conditions  involving 
great  expense  to  the  corporation  and  resulting  in  substantial 
benefits  to  the  public  as  to  transfers  for  single  fares  and  re- 

28  Ball  v.  Rutland  R.  Co.   (C.  C),  p.  547,  as  amended  by  act  June  2, 
93  Fed.  513.  1876,  chap.  446,  p.  480. 

29  Grand  Rapids  &  Ind.  Ry.  Co.  v.  31  Act  April  16,  1886,  chap.  143. 
Osborn,  193  U.  S.  17,  48  L.  ed.  598,  32  Schurz  v.  Cook,  148  U.  S.  397,  13 
24  Sup.  Ct.  310.  Sup.  Ct.  645,  37  L.  ed.  498. 

30  Act    May    11,  1874,  chap.  430,  33  Gilfillan  v.  Union  Canal  Co.,  109 


U.  S.  401,  27  L.  ed.  977. 


516 


OBLIGATION    OF    CONTRACTS    CONTINUED  §    330 

lating  to  the  entire  system  as  well  as  the  extensions  granted, 
and  provided  that  the  right  granted  terminate  with  the  then 
existing  grants  of  the  main  line  at  a  specified  date  later  than 
that  of  termination  of  some  of  the  franchises,  amount,  on  the 
acceptance  by  the  company  and  compliance  with  the  condi- 
tions, to  a  contract  within  the  protection  of  the  impairment 
clause  of  the  constitution  extending  the  various  franchises  to 
that  date;  the  period,  in  this  case  of  four  years,  not  being  an 
unreasonable  one  in  view  of  the  substantial  benefits  accruing 
to  the  public.34  Under  another  decision  it  appeared  that  the 
Citizens'  Street  Railway  Company  of  Indianapolis  was  organ- 
ized in  1864  under  an  act  of  the  legislature  of  Indiana  of  1861, 
authorizing  such  a  company  to  be  "a  body  politic  and  corpora- 
tion in  perpetuity."  January  18,  1864,  the  common  council  of 
that  city  passed  an  ordinance  authorizing  the  company  to  lay 
tracks  upon  designated  streets,  and  providing  that  "the  right 
to  operate  said  railways  shall  extend  to  the  full  time  of  thirty 
years,"  during  which  time  the  city  authorities  were  not  to  ex- 
tend to  other  companies  privileges  which  would  impair  or 
destroy  the  rights  so  granted.  In  April,  1880,  the  common 
council  amended  the  original  grant  "so  as  to  read  thirty-seven 
years  where  the  same  now  reads  thirty  years."  The  company, 
desiring  to  issue  bonds  to  run  for  a  longer  period  than  the 
thirty  years,  had,  for  that  purpose,  petitioned  the  common 
council  for  an  extension  to  forty-five  years.  The  city  govern- 
ment was  willing  to  extend  to  thirty-seven  years,  and  this  was 
accepted  by  the  company  as  a  compromise.  On  the  23d  of 
April,  1888,  the  road  and  franchises  were  sold  and  conveyed 
to  the  Citizens'  Street  Railroad  Company,  which  sale  and 
transfer  were  duly  approved  by  the  city  government.  De- 
cember is,  1889,  a  further  ordinance  authorized  the  use  of 
electric  power  by  the  company,  and  provided  how  it  should 
be  applied.  In  aecnrdance  with  its  provisions  the  company, 
at  great  expense,  built  a  power  house,  and  changed  its  plant 
to  an  electric  system.    In  April,  1893,  the  city  council,  claim- 

M  Cleveland  v.  Cleveland  Electric    854,  26   Sup.  Ct.  513,  aff'g  135  Fed. 
Ry.  Co.,  201   U.   S.  529,  50  L.  ed.    368. 

517 


§    330  OBLIGATION    OF    CONTRACTS    CONTINUED 

ing  that  the  rights  of  the  company  would  expire  in  thirty 
years  from  January  18,  1864,  granted  to  another  corporation 
called  the  City  Eailway  Company  the  right  to  lay  tracks  to 
be  operated  by  electricity  in  a  large  number  of  streets  then 
occupied  by  the  tracks  of  the  Citizens'  Street  Railroad  Com- 
pany, whereupon  a  bill  was  filed  in  the  Circuit  Court  of  the 
United  States  by  the  street  railway  company,  to  enjoin  it  from 
interrupting  or  disturbing  the  railroad  company  in  the  main- 
tenance and  operation  of  its  car  system,  alleging  that  the 
action  of  the  city  council  sought  to  impair,  annul  and  destroy 
the  obligation  of  the  city's  contract  with  the  plaintiff.  It  was 
held  that  the  Circuit  Court  had  jurisdiction,  although  both 
parties  were  corporations  and  citizens  of  Indiana;  that  the 
right  of  repeal  reserved  to  the  legislature  in  the  act  of  1861 
was  not  delegated  to  the  city  government;  that  the  circum- 
stances connected  with  the  passage  of  the  amended  ordinance 
of  April  7,  1880,  operated  to  estop  the  city  from  denying  that 
the  charter  was  extended  to  thirty-seven  years;  that  the  con- 
tinued operation  of  the  road  was  a  sufficient  consideration  for 
the  extension  of  the  franchise;  that  the  citizens'  company  had 
a  valid  contract  with  the  city  which  would  not  expire  until 
January  18,  1901,  and  that  the  contract  of  April  24,  1893, 
with  the  City  Railway  Company  was  invalid.  But  no  opinion 
was  expressed  whether  complainant  was  entitled  to  a  perpetual 
franchise  from  the  city.35  In  another  case,  however,  it  is  de- 
termined that  where  the  legislature  grants  to  a  city  compre- 
hensive power  to  contract  with  street  railroad  companies  with 
regard  to  the  use  of  its  streets  and  length  of  time,  not  exceed- 
ing twenty-five  years,  for  which  such  franchise  may  be  granted, 
the  action  of  the  city  council  of  such  city,  and  the  acceptance 
by  a  street  railway  company  of  various  ordinances  adopted 
by  the  council  do  not  amount  to  a  contract  between  the  city 
and  the  company  extending  the  time  of  the  franchise,  and  a 

35  City  Ry.  Co.  v.  Citizens'  Street  400,  50  L.  ed.  801,  26  Sup.  Ct.  427, 

R.  R.  Co.,  166  U.  S.  557,  41  L.  ed.  rev'g  Covin  v.  City  of  Chicago,  132 

1114,    17    Sup.    Ct.    653.      Examine  Fed.  848. 
Blair  v.  City  of  Chicago,  201  U.  S. 

518 


OBLIGATION    OF    CONTRACTS    CONTINUED  §   331 

later  ordinance  affecting  that  franchise  after  its  expiration  as 
originally  granted  is  not  void  under  the  impairment  clause  of 
the  Federal  Constitution.36  But  even  though  an  ordinance  ex- 
tending a  franchise  may  be  construed  as  a  contract  it  is  still 
subject  to  the  control  of  the  legislature  if  the  constitution  of 
the  State  then  in  force  provides  that  no  irrevocable  or  uncon- 
trollable grant  of  privileges  shall  be  made  and  that  all  privi- 
leges granted  by  the  legislature,  or  under  its  authority,  shall 
be  subject  to  its  control;  nor  is  the  legislature  deprived  of 
this  control  because  the  contract  was  not  made  by  it  but  by 
a  municipal  corporation,  as  the  latter  is  for  such  purpose 
merely  an  agency  of  the  State.37  If  a  statute  reserves  the 
power  to  amend  or  repeal  charters  or  grants,  unless  a  contrary 
intent  therein  is  plainly  expressed  such  provision  embraces 
extensions  of  original  charters  or  grants  as  well  as  those  granted 
after  such  enactment.38 

§331.  Obligation  of  Contract  not  Impaired — Consolida- 
tion of  Corporations — Reservation  of  Power  to  Alter  or 
Repeal. — In  the  Pennsylvania  College  Cases 39  it  appeared  that 
the  legislature  of  Pennsylvania  chartered  a  college  "atCan- 
nonsburg,"  by  name  of  the  Jefferson  College,  "in  Cannons- 
burg,"  giving  to  it  a  constitution  and  declaring  that  the  same 
should  "  be  and  remain  the  inviolable  constitution  of  the  said 
college  forever"  and  should  not  be  "altered  or  alterable  by  an 

39  Cleveland    Electric    Ry.    Co.    v.  tucky  and  the  members  of  the  state 

Cleveland,  204  U.  S.  116,  51   L.  ed.  board    of   valuation    restraining   the 

— ,  27  Sup.  Ct.  — .  en licet  ion  of  taxes  of  that  county  as 

3au    Antonio    Traction    Co.    v.  impairing   the   obligation   of  a   con- 

Altgelt,  200  U.  8.  304,  50  L.  ed,  491,  trad  created  by  a  law  of  the  State 

20  Sup.  Ct,  261.  and    within    the    protection    of    the 

Northern  Bank  of  Kentucky  v.  Federal  Constitution  is  not,  because 

Stone,  88   Fed.  413,  aff'd   Btone   v.  such  state  officers  were  parties,  res 

Bank  of  Kentucky.  171  U.  S.  799,  43  judicata  to  the  validity  of  taxes  im- 

I..  ed    1 187,  19  Sup.  Ct.  881    by  a  di-  posed  by  another  county,  nor  is  such 

vided  court,  and  cited  in    Bank  of  other    county    privy    to    the    ju<lg~ 

Kentucky    v.    Kentucky.    207    U.    S     ment. 

2.58,  266,  267,   which   holds   thai   a       w  13  Wall.  (80  U.  S.)  190, 20  L.  ed. 
judgmenl  against  a  county  of  Ken-   .550. 

519 


§   331  OBLIGATION    OF    CONTRACTS    CONTINUED 

ordinance  or  law  of  the  said  trustees  or  in  any  other  manner 
than  by  an  act  of  the  legislature"  of  Pennsylvania.  The 
college  becoming  in  need  of  funds  put  into  operation  a  plan  of 
endowment  whereby  in  virtue  of  different  specific  sums  named, 
different  sorts  of  scholarships  were  created;  one,  ex.  gr.,  by 
which  on  paying  $400  a  subscriber  became  entitled  to  a  per- 
petual scholarship,  capable  of  being  sold  or  bequeathed;  and 
another  by  which  on  payment  of  $1,200  he  became  entitled  to 
a  perpetual  scholarship,  entitling  a  student  to  tuition,  room 
rent  and  boarding;  this  sort  of  scholarship  being  capable,  by 
the  terms  of  the  subscription,  of  being  disposed  of  as  other 
property.  But  nothing  was  specified  in  this  plan  as  to  where 
this  education,  under  the  scholarships,  was  to  be.  On  payment 
of  the  different  subscriptions,  certificates  were  issued  by  the 

college,  certifying  that  A.  B.  had  paid  $ ,  which  entitled 

him  "  to  a  scholarship  as  specified  in  plan  of  endowment  adopted 
by  the  trustees  of  Jefferson  College,  Cannonsburg,"  etc.  An 
act  of  the  legislature,  in  1865,  by  consent  of  the  trustees  of 
the  college  at  Cannonsburg  and  of  the  trustees  of  another 
college  at  Washington,  Pennsylvania,  seven  miles  from  Can- 
nonsburg, created  a  new  corporation,  consolidating  the  two 
corporations,  vesting  the  funds  of  each  in  the  new  one,  and  in 
their  separate  form  making  them  to  cease,  but  providing  that 
all  the  several  liabilities  of  each,  including  the  scholarships, 
should  be  assumed  and  discharged  without  diminution  or 
abatement  by  the  new  corporation.  Notwithstanding  the  act 
of  assembly,  the  collegiate  buildings,  etc.,  of  Jefferson  College 
were  left  at  Cannonsburg,  and  certain  parts  of  the  collegiate 
course  were  still  pursued  there;  the  residue  being  pursued  at 
Washington  College,  Washington.  Subsequently,  in  1869 — 
the  then  existing  constitution  of  Pennsylvania  (one  adopted 
in  1857,  allowing  the  legislature  of  the  State  "to  alter,  revoke, 
or  annul  any  charter  of  incorporation  thereafter  granted, 
whenever  in  their  opinion  it  may  be  injurious  to  the  citi- 
zens *  *  *  m  such  manner,  however,  that  no  injustice 
shall  be  done  to  the  corporators")  being  in  force — a  supple- 
ment to  this  act  of  1865  was  passed,  "closely  uniting"  the 
520 


OBLIGATION    OF    CONTRACTS    CONTINUED  §   331 

several  departments  of  the  new  college  created  by  the  act  of 
1865,  and  authorizing  the  trustees  of  it  to  locate  them  either 
at  Cannonsburg,  Washington,  or  some  other  suitable  place 
within  the  commonwealth;  they  giving  to  whichever  of  the 
two  towns  named  had  the  college  taken  away  from  it,  or  to 
both  if  it  was  taken  away  from  both,  an  academy,  normal 
school,  or  other  institution  of  a  grade  lower  than  a  college, 
with  some  property  of  the  college  for  its  use.  It  was  held  that 
the  legislature  of  Pennsylvania,  by  its  act  of  1869,  had  not 
passed  any  law  violating  the  obligation  of  a  contract.40  This  de- 
cision was  followed  in  another  case  under  the  following  cir- 
cumstances, viz. :  The  citizens  of  Millersburg,  Kentucky,  raised 
a  fund  for  the  purpose  of  establishing  a  collegiate  institute 
in  that  place  or  its  vicinity,  and  invited  the  Kentucky  Annual 
Conference  of  the  Methodist  Episcopal  Church,  South,  to  take 
charge  of  it  when  established.  The  invitation  was  accepted, 
and  the  legislature  of  the  State  incorporated  the  Institute  by 
an  act,  one  provision  in  which  was  a  reservation  to  the  legis- 
lature of  the  right  to  amend  or  repeal  it.  Large  additions  were 
then  made  to  the  fund  from  other  sources,  and  in  1860  another 
act  was  passed  incorporating  the  Board  of  Education  of  that 
Conference  of  the  Methodist  Church.  In  this  act,  after  reciting 
the  raising  of  the  money,  and  the  establishment  of  the  institu- 
tion at  Millersburg,  the  control  of  the  college  and  the  dis- 
position of  the  sums  raised  were  placed  in  the  hands  of  the 
Conference.  This  act,  also,  was  passed  subject  to  the  right  of 
the  legislature  to  amend  or  repeal.  In  1861,  the  legislature 
passed  another  act,  in  which,  as  construed  by  the  courts,  power 
was  conferred  upon  the  Conference  to  remove  the  college  from 
Millersburg  to  any  other  place  within  the  bounds  of  Kentucky 
Annual  Conference.    It  was  decided  that  the  latter  act  did  not 

*°  Tin's  case  is  cited  in  New  York  540,  25  L.  ed.  912;  Railroad  Co.  v. 

&  N.  E.  R.  Co.  v.  Bristol,  151  U.  S.  Georgia,  98  U.  S.  359,  366,  25  L.  ed. 

567,  38  I-.  ed.  269,  It  Sup.  Ct.  185;  Holyoke  Co.  v.  Lyman,  15  Wall. 

437;  Greenwood  v.  Freighl  <V,  105  (82  U.  S.)  500,  511,  522,  21  L.  ed. 

('.  S.  13,  18,  26  I,  ed;  '.tot;  Railway  133;  Miller  v.  State,  15  Wall.  (82  U. 

Co.  v.  Philadelphia,  101    U.  S.  528,  S.)  478,  188,  195,497,21  L.  ed.  98. 

521 


§   332  OBLIGATION    OF    CONTRACTS    CONTINUED 

impair  any  contract  created  by  the  former  statutes  and  pro- 
ceedings.41 

§  332.  Eminent  Domain— Obligation  of  Contracts.— The 

Constitution  of  the  United  States  cannot  be  so  construed  as 
to  take  away  the  right  of  eminent  domain  from  the  States. 
Nor  does  the  exercise  of  this  right  interfere  with  the  inviola- 
bility of  contracts.  All  property  is  held  by  tenure  from  the 
State,  and  all  contracts  are  made  subject  to  the  right  of  eminent 
domain.  No  contract  is,  therefore,  violated  by  the  exercise 
of  the  right.  The  Constitution  of  the  United  States  intended 
to  prohibit  all  such  laws  impairing  the  obligation  of  contracts 
as  interpolate  some  new  term  or  condition,  foreign  to  the 
original  agreement.42  Nor  in  the  proceeding  to  condemn 
property  for  public  use,  is  there  anything  in  the  nature  of  a 
contract  between  the  owner  and  the  State,  or  the  corporation 
which  the  State  in  virtue  of  her  right  of  eminent  domain  au- 
thorizes to  take  the  property;  all  that  the  constitution  of  the 
State  or  of  the  United  States  or  justice  require  in  such  cases 
is  that  a  just  compensation  shall  be  made  to  the  owner,  his 
property  can  then  be  taken  without  his  consent.43  Again, 
while  the  legislative  power  to  amend  or  repeal  a  statute  cannot 
be  availed  of  to  take  away  property  already  acquired,  or  to 
deprive  a  corporation  of  fruits  of  contracts  lawfully  made, 
already  reduced  to  possession,  the  capacity  to  acquire  land  by 
condemnation  for  the  construction  of  a  railroad  attends  the 
franchise  to  be  a  railroad  corporation,  and,  when  unexecuted, 
cannot  be  held  to  be  in  itself  a  vested  right  surviving  the  ex- 
istence of  the  franchise,  or  an  authorized  circumscription  of 
its  scope.44    Nor  is  the  right  to  proceed  in  a  certain  prescribed 

41  Bryan  v.  Board  of  Education,  See  Baltimore  &  F.  Turnpike  Road 
Kentucky  Conference,  151  U.  S.  639,  v.  Baltimore,  C.  &  E.  M.  P.  R.  Co., 
38  L.  ed.  297, 14  Sup.  Ct.  — ,  cited  in    81  Md.  247,  31  Atl.  854. 

Mobile  &  Ohio  Rd.  v.  Tennessee,  153  43  Garrison  v.  New  York,  21  Wall. 

U.  S.  486,  495,  14  Sup.  Ct.  968,  38  (88  U.  S.)  196,  22  L.  ed.  612. 

L.  ed.  793.  "4  Adirondack    Ry.    Co.    v.    New 

42  West  River  Bridge  Co.  v.  Dix,  6  York,  176  IT.  S.  335,  20  Sup.  Ct.  460, 
How.  (47  U.  S.)  507,  12  L.  ed.  535.  44   L.  ed.  — ,  20   Sup.  Ct.  460,  aff'g 

522 


OBLIGATION    OF    CONTRACTS    CONTINUED  §   333 

manner  a  vested  right,  under  a  charter  authorizing  a  corpora- 
tion to  acquire  real  estate  under  the  exercise  of  the  power  of 
eminent  domain,  and  such  right  may  be  repealed  by  the  leg- 
islature notwithstanding  there  is  no  reservation  of  power  to 
alter  or  repeal.45  It  is  also  within  the  power  of  a  State  to  pro- 
vide for  condemnation  of  minority  shares  of  stock  in  railroad 
and  other  corporations  where  the  majority  of  the  shares  are 
held  by  another  railroad  corporation,  if  public  interest  de- 
mands; and  the  improvement  of  the  railroad  owning  the  ma- 
jority of  stock  of  another  corporation  may  be  a  public  use  if 
the  state  court  so  declare,  and  the  condemnation  under  the 
Public  Laws  of  Connecticut 46  of  such  minority  shares  of  a 
corporation  is  not  void  under  the  impairment  clause  of  the 
constitution  either  because  it  impairs  the  obligation  of  a  lease 
made  by  the  corporation  to  the  corporation  obtaining  the 
shares  by  condemnation,  or  because  it  impairs  the  contract 
rights  of  the  stockholder.47  Where  the  highest  court  of  a 
State  held  that  there  was  no  property  in  a  naked  railroad 
route  in  such  State  which  the  State  was  obliged  to  pay  for 
when  it  needed  the  land  covered  by  that  route  for  a  great 
public  use,  and  its  officers  were  by  appropriate  legislation 
authorized  to  act,  the  Federal  Supreme  Court  accepted  the 
views  of  the  state  court,  and  accordingly  held  that  the  pro- 
ceedings  on  the  part  of  the  State  which  were  complained  of 
in  the  case,  impaired  the  obligation  of  no  contract  between  it 
and  the  railroad  company.48 

§  333.  Same  Subject  -  Instances. — The  use  of  a  team  track 
and  delivery  space  of  a  railroad  company  is  not  so  essential  as 

People  v.  Adirondack  Ry.  Co.,  160  Ry.  Co.,  203  U.  S.  372,  51  L.  ed.  231, 

N.  Y.  225,  54   N.   E.  689,  cited   in  27   Sup.   Ct.    72,   aff'g  78  Conn.    1, 

Underground    Etd.    v.   City   of    New  60  Ail.  710. 

York,  193  U.  S.  416,  428,  48  L.  ed.        "Adirondack    Ry    Co.    v.    New 

733,  21  Sup.  Ct.  494.  York,  176  (J.  S.  335,  44  L.  ed.  492, 

«Chattaroi   It.  <',,.  v.  Kinner,  81  20    Sup.    Ct.    4(H),    aff'g    People   v. 

Ky.  281,5  Ky.  Law  Rep.  33.  Adirondack  Ry.  Co.,  160  N.  Y.  225, 

"Sees.  3694,  3695,  .r>i  N.  E.  689. 


"Offli-M  v.  New  York,  X.  H.  &  H. 


523 


§    333  OBLIGATION    OF    CONTRACTS    CONTINUED 

to  result  in  impairing  the  franchise  and  use  of  a  railroad  com- 
pany in  case  another  railroad  is  permitted  to  use  three  feet 
for  clearance  space,  which  clearance  does  not  interfere  with 
the  running  of  defendant's  trains,  nor  to  an  irremediable  ex- 
tent with  the  use  of  defendant's  team  track  and  delivery  space. 
A  railroad  corporation  having  secured  a  franchise  and  right 
of  way  for  the  purpose  of  constructing  its  tracks  upon  a  locus 
publicus  of  a  city  has  the  right  to  expropriate  from  another 
railroad  corporation  sufficient  clearance  space  to  enable  it  to 
pass  its  trains  free  of  obstructions  and  hindrances  from  the 
latter,  if  the  use  thereof  be  not  of  such  a  character  as  to  be 
indispensable  to  the  movement  of  its  own  trains  or  its  other 
business.49  In  another  case  it  appeared  that  the  legislature 
of  Virginia  incorporated  the  stockholders  of  the  Richmond, 
Fredericksburg  and  Potomac  railroad  company,  and  in  the 
charter  pledged  itself  not  to  allow  any  other  railroad  to  be 
constructed  between  those  places,  or  any  portion  of  that  dis- 
tance; the  probable  effect  would  be  to  diminish  the  number 
of  passengers  travelling  between  the  one  city  and  the  other 
upon  the  railroad  authorized  by  that  act,  or  to  compel  the 
said  company,  in  order  to  retain  such  passengers,  to  reduce  the 
passage  money.  Afterwards  the  legislature  incorporated  the 
Louisa  Railroad  Company,  whose  road  came  from  the  West 
and  struck  the  first  named  company's  track  nearly  at  right 
angles,  at  some  distance  from  Richmond;  and  the  legislature 
authorized  the  Louisa  Railroad  Company  to  cross  the  track  of 
the  other,  and  continue  their  road  to  Richmond.  In  this 
latter  grant,  the  obligation  of  the  contract  with  the  first  com- 
pany was  held  not  to  be  impaired  within  the  meaning  of  the 
Constitution  of  the  United  States.  It  was  also  decided  that 
in  the  first  charter  there  was  an  implied  reservation  of  the  power 
to  incorporate  companies  to  transport  other  than  passengers; 
and  if  the  Louisa  Railroad  Company  should  infringe  upon  the 
rights  of  the  Richmond  Company,  there  would  be  a  remedy 
at  law,  but  that  the  apprehension  of  it  would  not  justify  an 

49  Shreveport  &  R.  R.  V.  R.  Co.  v.    St.  Louis  S.  W.  R.  Co.,  51  La.  Ann. 

814,  25  So.  424. 

524 


OBLIGATION    OF    CONTRACTS    CONTINUED  §    333 

injunction  to  prevent  them  from  building  their  road;  and  that 
the  obligation  of  the  contract  was  not  impaired  by  crossing 
the  road,  since  a  franchise  may  be  condemned  in  the  same 
manner  as  individual  property.50  In  Baltimore  &  Susque- 
hanna R.  Co.  v.  Nesbit,51  the  State  of  Maryland  granted  a 
charter  to  a  railroad  company,  in  which  provision  was  made 
for  the  condemnation  of  land  to  the  following  effect :  namely, 
that  a  jury  should  be  summoned  to  assess  the  damages,  which 
award  should  be  confirmed  by  the  county  court,  unless  cause 
to  the  contrary  was  shown.  The  charter  further  provided, 
that  the  payment,  or  tender  of  payment,  of  such  valuation 
should  entitle  the  company  to  the  estate  as  fully  as  if  it  had 
been  conveyed.  In  1836  there  was  an  inquisition  by  a  jury, 
condemning  certain  lands,  which  was  ratified  and  confirmed 
by  the  county  court.  In  1841,  the  legislature  passed  an  act 
directing  the  county  court  to  set  aside  the  inquisition  and  order 
a  new  one.  On  the  18th  of  April,  1844,  the  railroad  company 
tendered  the  amount  of  the  damages,  with  interest,  to  the 
owner  of  the  land,  which  offer  was  refused;  and  on  the  26th 
of  April,  1844,  the  owner  applied  to  the  county  court  to  set 
aside  the  inquisition,  and  order  a  new  one,  which  the  court 
directed  to  be  done.  It  was  decided  that  the  law  of  1841  was 
not  a  law  impairing  the  obligation  of  a  contract;  it  neither 
changed  the  contract  between  the  company  and  the  State, 
nor  did  it  divest  the  company  of  a  vested  title  to  the  land. 
The  charter  provided  that,  upon  tendering  the  damages  to 
the  owner,  the  title  to  the  land  should  become  vested  in  the 
company.  There  having  been  no  such  tender  when  the  act 
of  1841  was  passed,  five  years  after  the  inquisition,  that  act 
only  left  the  parties  in  the  situation  where  the  charter  placed 
them,  and  no  title  was  divested  out  of  the  company,  because 
they  had  none.  It  was  further  held  that  the  Staff's  have  a 
right  to  direct  a  rehearing  of  eases  decided  in  their  own  courts. 
The  only  limit  upon  the  power  to  pass  retrospective  laws  is, 

"Richmond,  F.   &  P.  R.  Co.  v.       ll  10  How.  (51 U.  S.)  395, 13  L.  ed. 
Louisa.  Ii.  R.Co.,  13  Bow.  (54  U.  S.)   469. 
71,  14  L.  ed.  55. 

525 


§    334  OBLIGATION    OF    CONTRACTS    CONTINUED 

that  the  Constitution  of  the  United  States  forbids  their  passing 
ex  post  facto  laws,  which  are  retrospective  penal  laws.  But  a 
law  merely  divesting  antecedent  vested  rights  of  property, 
where  there  is  no  contract,  is  not  inconsistent  with  the  Federal 
Constitution. 


§  334.  Constitution  Subsequently  Adopted— Obligation  of 
Contract. — If  a  charter  from  the  legislature  is  amended  so  as 
to  confer  upon  a  city  or  village  the  power  to  grant  and  it  does 
grant  a  franchise  to  a  railroad  company  of  certain  rights  or 
privileges  in  a  business  street,  such  franchise  is  irrevocable  to 
the  extent  that  it  is  protected  from  impairment  by  the  consti- 
tution and  it  is  not  affected  by  the  terms  of  a  new  constitution 
prohibiting  grants  of  special  privileges  of  such  a  nature.52 
So  a  distinction  is  made  between  grants  of  land,  repealed  by 
the  operation  of  a  state  constitution  prohibiting  grants,  where 
the  grants  were  made  to  aid  in  the  construction  of  lines  of 
railway  not  authorized  until  after  such  provision  of  the  con- 
stitution took  effect,53  and  a  case  where  the  grants  which  were 
claimed  to  be  affected  by  it  were  made  prior  to  the  adop- 
tion of  that  constitution,  for  the  purpose  of  aiding  in  the  con- 
struction of  the  road,  since  in  the  latter  case  the  enforcement 
of  that  constitution  against  the  accepted  grant  and  vested 
rights  will  impair  the  obligation  of  the  contract  between  the 
State  and  the  railway  company  and  cannot  be  sustained.54 
Where  the  State  of  Ohio  chartered  a  bank  in  1845,  in  which 


52  Port  of  Mobile  v.  Louisville  &  the  successor  of  the  Buffalo,  Bayou 
Nashville  R.  Co.,  84  Ala.  115,  4  So.  Brazos  and  Colorado  Railway  Com- 
106,  5  Am.  St.  Rep.  342.  pany,  which  had  received  grants  of 

53  Galveston,  Harrisburg  &  San  land  under  previous  legislation  to  en- 
Antonio  Ry.  Co.  v.  Texas,  170  U.  S.  courage  the  construction  of  railroads 
226,  18  Sup.  Ct.  603,  42  L.  ed.  1017  in  that  State,  was  held  to  involve  no 
(provision  in  the  constitution  of  infraction  of  the  Federal  Constitu- 
Texas  of   1869,  that   the  legislature  tion). 

should  not  thereafter  grant  lands  to        54  Houston-Texas  Central  Ry.  Co. 

any  person   or  persons,  as  enforced  v.  Texas,   170  U.   S.  243,  42  L.  ed. 

against    the    Galveston,    Harrisburg  1023,  18  Sup.  Ct.  610. 
and  San  Antonio  Railway  Company, 

526 


OBLIGATION    OF    CONTRACTS    CONTINUED  §    334 

charter  was  stipulated  the  amount  of  the  tax  which  the  bank 
should  pay,  in  lieu  of  all  taxes  to  which  said  company  or  the 
stockholders  thereof,  on  account  of  stock  owned  therein  would 
otherwise  be  subject,  and  in  1852,  the  legislature  passed  an 
act  levying  taxes  upon  the  bank  to  a  greater  amount  and 
founded  upon  a  different  principle,  said  act  was  held  to  be 
in  conflict  with  the  Constitution  of  the  United  States,  as  im- 
pairing the  obligation  of  a  contract,  and  therefore  void.  The 
fact  that  the  people  of  the  State  had,  in  1851,  adopted  a  new 
constitution,  in  which  it  was  declared  that  taxes  should  be 
imposed  upon  banks  in  the  mode  which  the  act  of  1852  pur- 
ported to  carry  out,  could  not,  it  was  decided,  release  the  State 
from  the  obligations  and  duties  imposed  upon  it  by  the  Con- 
stitution of  the  United  States.55  Where  the  constitution  of  a 
State  makes  each  stockholder  in  a  corporation  "  individually 
liable  for  its  debts,  over  and  above  the  stock  owned  by  him," 
in  a  further  sum  at  least  equal  in  amount  to  such  stock,  and  the 
corporation  incurs  debts  and  is  then  authorized  to  obtain  sub- 
scriptions for  new  stock,  but  does  not  then  obtain  them,  and 
the  constitution  of  the  State  is  afterwards  amended  and  de- 
clares that,  "in  no  case  shall  any  stockholder  be  individually 
liable  in  any  amount  over  or  above  the  amount  of  stock  owned 
by  him,"  and  the  corporation  then,  for  the  first  time,  issues  the 
new  stock,  the  holders  of  such  new  stock  are  not  personally 
liable  under  the  first  constitution.  The  amended  constitution 
does  not  impair  the  obligation  of  the  contract  between  the 

55  Dodge    v.    Woolsey,    18    How.  Tennessee,  95  U.  S.  679,  690,  24  L.  ed. 

(59  U.  S.)  331,  15  L.  ed.  401,  cited  in  558;  Erie  Ry.  Co.  v.  Pennsylvania,  21 

Grand    Lodge,    F.    &    A.     Masons,  Wall.  (88  U.  S.)  492,  498,  22  L.  ed. 

Louisiana,  v.  New  Orleans,  166  U.  S.  595;   Salt  Co.   v.   East  Saginaw,   13 

143,  146,  41  L.  ed.  951,  17  Sup.  Ct.  Wall.  (80  U.  S.)  373,  376,  20  L.  ed. 

523;  Pearsall  v.  Great  Northern  Ry.  611;    Home    of    The    Friendless    v. 

Co.,  161   C.  S.  616,  662,  16  Sup.  Ct.  Rouse,  8  Wall.    (75  U.   S.)    130,   19 

Tor,,  40  L.  ed.  838;  Shelby  County  v.  L.  ed.  495;  Von  Hoffman  v.  City  of 

Union  A'  I'.  Bank,  161  (J.  S.  149,  150,  Quincy,  4  Wall.  (71  V.  S.)  535,  554, 

40    L.    ed.    650,    16    Sup.    Ct.    558;  18  L.  ed.  403;  Wright  v.  Sill,  2  Black 

Louisiana  v.  Jumel,  107  U.  S.  711,  (67  U.  S.),  544,  515.  17  L.  ed.  333; 

760,  27  L.  ed.    lis.  2   Sup.  Ct.    128,  Franklin   Bank  v.  Ohio,  1    Hlack  (66 

in  dissenting  opinion;  Farrington  v.  U.  S.),  474,  475,  17  L.  ed.  180. 

527 


§   335  OBLIGATION    OF    CONTRACTS    CONTINUED 

corporation  and  its  debtor    made  under  the  first  constitu- 
tion.56 

§  335.  Obligation  of  Contracts— Police  Powers— Regu- 
lations.— Legislative  power  to  create  corporations  implies 
power  to  thereafter  prescribe  reasonable  regulations  even 
though  the  right  to  repeal  or  amend  the  charter  is  not  reserved 
by  the  State.57  So  the  exemption  of  a  company  from  require- 
ments inconsistent  with  its  charter  cannot  operate  to  relieve 
it  from  submitting  itself  to  euch  police  regulations  as  the  city 
may  lawfully  impose;  and  until  it  has  complied,  or  offered 
to  comply,  to  regulations  to  which  it  is  bound  to  conform,  it 
is  not  in  a  position  to  assert  that  its  charter  rights  are  in- 
vaded because  of  other  regulations,  which,  though  applicable 
to  other  companies,  it  contends  will  be  invalid  if  applied  to  it.58 
Again,  in  granting  the  exclusive  franchise  to  supply  gas  to 
a  municipality  and  its  inhabitants,  a  state  legislature  does 
not  part  with  the  police  power  and  duty  of  protecting  the 
public  health,  the  public  morals  and  the  public  safety,  as  one 
or  the  other  may  be  affected  by  the  exercise  of  that  franchise 
by  the  grantee.59  The  railroad  law  of  New  York  of  1850  60 
required  the  consent  of  a  municipality  to  the  construction  of 
a  surface  railroad  through  its  streets.  Whatever  may  have  been 
the  effect  of  conditions  attached  to  such  consent  by  the  munici- 
pality it  had  no  power  to  contract  away  or  limit  the  taxing 
or  police  powers  of  the  legislature.  A  consent,  however,  not- 
withstanding unauthorized  conditions,  became  effective  and 


56  Ochiltree    v.    Railroad    Co.,    21  Department    of    Public    Health    of 
Wall.  (88  U.  S.)  249,  22  L.  ed.  546.  N.  Y.,  67  N.  Y.  Supp.  324,  32  Misc. 

57  McGuire  v.  Chicago,  Burlington  377,  70  N.  Y.  Supp.  510,  61  App.  Div. 
&  Quincy  Rd.  Co.,  131  Iowa,  340,  108  106. 

N.  W.  902.     See  Platte  &  D.  Canal  58  Laclede  Gas  Light  Co.  v.  Mur- 

&  M.  Co.  v.  Dowell,  17  Colo.  376,  30  phy,  170  U.  S.  78,  42  L.  ed.  955,  18 

Pac.  68;  Westport,  City  of,  v.  Mul-  Sup.  Ct.  505. 

holland,  159  Mo.  86,  60  S.  W.  77;  59  New  Orleans  Gas  Co.  v.  Louisi- 

Martin  v.  Remington-Martin  Co.,  88  ana   Light   Co.,    115   U.    S.    650,  29 

N.  Y.  Supp.  573,  95  App.  Div.  18;  L.  ed.  615,  6  Sup.  Ct.  252. 

New  York  Sanitary  Utilization  Co.  v.  eo  Laws  1850,  chap.  140. 

528 


OBLIGATION    OF    CONTRACTS    CONTINUED  §    336 

conferred  a  valid  franchise.61  The  law  of  New  York  of  1885 
transferred  the  reserved  police  power  of  the  State  from  one 
set  of  functionaries  to  another  and  required  companies  intend- 
ing to  operate  electrical  conductors  to  submit  their  plans  and 
specifications  to  the  commissioners  of  electrical  subways,  who 
would  determine  whether  they  were  in  accordance  with  the 
terms  of  the  ordinance  giving  to  them  the  right  to  enter  and 
dig  up  the  streets  of  the  city;  and,  being  so  construed,  it  vio- 
lated no  contract  rights  of  companies  which  might  grow  out 
of  the  permission  granted  by  the  municipality.62 

§  336.  Obligation  of  Contracts — Conditions — Regulations 
— Reserved  Power  to  Alter,  etc. — Laws  requiring  gas  com- 
panies, water  companies,  and  other  corporations  of  like  char- 
acter to  supply  their  customers  at  prices  fixed  by  the  mu- 
nicipal authorities  of  the  locality,  arc  within  the  scope  of 
legislative  power  unless  prohibited  by  constitutional  limitation 
or  valid  contract  obligation.  Where  the  constitution  of  a 
State  provided  that  corporations  might  be  formed  under  gen- 
eral laws,  and  should  not  be  created  by  special  act,  except  for 
municipal  purposes,  and  that  all  laws,  general  and  special, 
passed  pursuant  to  that  provision  might  be  from  time  to  time 
altered  and  repealed,  and  a  general  law  was  enacted  by  the 
legislature  for  the  formation  of  corporations  for  supplying 
cities,  counties  and  towns  with  water,  which  provided  that 
the  rates  to  be  charged  for  water  should  be  fixed  by  a  board 
of  commissioners  to  be  appointed  in  part  by  the  corporations 
and  in  part  by  municipal  authorities;  and  the  constitution  and 
laws  of  the  State  were  subsequently  changed  so  as  to  take 
away  from  corporations,  which  had  been  organized  and  put 
into  operation  under  the  old  constitution  and  laws,  the  power 
to  name  members  of  the  boards  of  commissioners,  so  as  to 
place  in  municipal  authorities  the  sole  power  of  fixing  rates 

61  City  of  Rochester  v.  Rochester  82  New  York  v.  Squire,  145  U.  S. 

Ry.   Co.,   182   N.   Y.   99,  case   aff'd  175,    12    Sup.    Ct.    880,    36   L.   ed. 

Rochester  Railway  Co.  v.  Rochester,  666. 
205  U.  S.  236,  27  Sup.  Ct.  469. 

34  520 


§   337  OBLIGATION    OF    CONTRACTS    CONTINUED 

for  water.  It  was  held,  that  these  changes  violated  no  pro- 
vision of  the  Constitution  of  the  United  States.63  If  require- 
ments are  exacted  or  duties  imposed  by  ordinances,  which, 
if  enforced,  would  impair  the  obligation  of  a  gas  and  electric 
light  company's  contract,  nevertheless  the  company  is  not 
thereby  relieved  from  offering  to  do  those  things  which  it  is 
lawfully  bound  to  do.64  And  a  license  of  a  street  railway  com- 
pany may  be  revoked  because  of  non-compliance  with  con- 
ditions to  which  the  franchise  was  made  subject,  especially 
where  such  right  to  revoke  is  reserved.65  And  where  a  statute 
authorizes  any  city  to  grant  by  resolution  or  ordinance,  under 
such  restrictions  as  the  common  council  may  deem  proper, 
to  any  person  or  corporation,  the  right  to  erect  and  maintain, 
in  the  streets,  alleys  and  other  public  places  of  such  city, 
poles,  wires  and  other  necessary  appliances  for  the  purpose 
of  supplying  electric  or  other  light,  the  discretion  of  the  com- 
mon council  is  not  confined  to  the  mere  restriction  of  methods 
of  use,  but  extends  to  restriction  of  time  and  the  statutory 
authority  conferred  carries  with  it  an  unreserved  discretion 
and  the  right  to  impose  any  terms  on  the  grant  not  forbidden 
by  law,  and  a  statutory  authority  to  revoke  such  license  may 
be  given  to  such  city  and  it  may  be  exercised  by  it.66  But, 
contract  rights  may  be  given  by  an  act  of  incorporation  to  a 
navigation  company,  in  consideration  of  the  performance  of 
certain  conditions,  which  obligation  cannot  be  impaired  by  a 
subsequent  attempt  to  repeal  in  part  such  prior  statute  of  in- 
corporation.67 

§  337.  Obligation  of  Contracts — Street  Paving  by  Street 
Railways — Conditions  and  Regulations. — A  subsequent  ordi- 

63  Spring   Valley  Water  Works  v.    Co.,  152  111.  171,  26  L.  R.  A.  681,  38 
Schottler,   1 10  U.   S.  347,  28  L.  ed.    N.  E.  584. 

173,  4  Sup.  Ct.  48.  08  Coverdaie  v.  Edwards,  155  Ind. 

64  Laclede  Gas  Light  Co.  v.  Mur-   374,  58  N.  E.  495,  7  Am.  Elect.  Cas. 
phy,  170  U.  S.  78,  42  L.  ed.  955,  18    15. 

Sup.  Ct.  505.  67  Commissioners'  Sinking  Fund  v. 

"  Belleville  v.  Citizens'  Horse  R.    Green  &  Barren  River  Nav.  Co.,  79 

Ky.  73. 

530 


OBLIGATION    OF    CONTRACTS    CONTINUED  §    337 

nance  requiring  additional  paving  impairs  the  obligation  of 
the  contract  and  is  not  such  an  exercise  of  the  police  power 
as  will  be  upheld.68  So  a  city  ordinance  which  contains  by 
agreement  as  to  its  stipulations  a  contract  by  the  city  with  a 
street  railway  company  to  pave  certain  portions  of  the  street 
cannot  be  thereafter  so  altered  by  the  legislature  as  to  impose 
additional  obligations  upon  the  company  in  the  matter  of 
paving,  even  though  the  Code  of  the  State  reserves  to  it  the 
power  to  control  the  company's  rights,  privileges  and  immuni- 
ties and  to  withdraw  the  franchise.69    If,  however,  a  power  be 

68  State  ex  rel.  City  of  Kansas  1S6  Mass.  115,  71  N.  E.  118;  Worces- 
City  v.  Corrigan  Consol.  St.  Ry.  Co.,  ter  v.  Worcester  Consol.  St.  Ry.  Co., 
85  Mo.  263,  55  Am.  Rep.  361.  182  Mass.  49,  64  N.  E.  581;  Spring- 

69  Coast-Line  R.  Co.  v.  Savannah,  field  v.  Springfield  St.  Ry.  Co.,  182 
30  Fed.  646.  Mass.  41,  64   N.   E.   577;   Boston  v. 

Examine  the  following  cases  as  to  Union  Freight  R.  Co.,  181  Mass.  205, 

street  paving  and  repairing  by  street  63  N.  E.  412. 

railroad  companies:  Michigan:  Detroit  v.  Detroit  Ry., 

Alabama:  Montgomery  St.  Ry.  Co.  134  Mich.  11,  11  Det.  Leg.  N.  86,  99 

v.  Smith  (Ala.),  39  So.  757;  Mobile  N.  W.  411;  Detroit  v.  Detroit  United 

v.  Mobile  Light  &  Ry.  Co.,  141  Ala.  Ry.,  133  Mich.  608,  10  Det.  Leg.  N. 

442,  38  So.  127.  320,  95  N.  W.  736;  Lansing  v.  Lan- 

Connecticut:    Hartford    v.    Hart-  sing  City  Elec.  R.  Co.,  109  Mich.  123, 

ford  St.   Ry.  Co.,  75  Conn.  471,  53  66  N.  W.  949,  3  Det.  L.  News,  41. 

Atl.  1010;  Fair  Haven  &  W.  R.  Co.  Nebraska:    Lincoln,    City    of,    v. 

v.  City  of  New  Haven,  75  Conn.  442,  Lincoln  St.  Ry.  Co.,  67  Neb.  469,  93 

53  Atl.  960,  aff  'd  in  203  U.  S.  379,  27  N.  W.  766,  84  N.  W.  802. 

Sup.  Ct.  74,  51  L.  ed.  239.  New  Jersey:  Cook  v.  North  Ber- 

Illinois:  Chicago  v.  Chicago  Union  gen  Township  (N.  J.),  59  Atl.  1035; 

Traction  Co.,  199  111.  259,  65  N.  E.  Fielders  v.  North  Jersey  St.  Ry.  Co., 

243,  59  L.  R.  A.  666;   Danville  St.  68  N.  J.  L.  434,  54  Atl.  822,  53  Atl. 

Ry.  &  Light  Co.  v.  Mater,  116  111.  401,  rev'g  (17  N.  J.  L.  76,  50  Atl.  533; 

App.  519.  Fielders  v.  North  Jersey  St.  Ry.  Co., 

Iowa:    Marshalltown  Light,  P.  &  68  N.  J.  L.  343,  53  Atl.  404,  13  Am. 

Ry.  Co.   v.   .Marshalltown,    IL'7   Iowa,  Neg.  Rep.  156. 

837,  103  X.  W.  loo.-,.  New  York:  People  v.  Geneva,  W. 

Louisiana:  Shreveporl   v.  Shreve-  S.  F.  &  C.  L.  Traction  Co.,  98  N.  Y. 

port   Bell   Ry.  Co.,  107  La.  785,  32  Supp.  719,  112  App.  Div.  581;  New 

So.  189;  State,  New  Orleans,  v.  New  York  City  v.   Harlem   Bridge,  M.  & 

Orleans  Tract.  Co.,  48  La.  Ann.  567,  I'.  Ry.  Co.,  91  V  V.  Supp.  557,  100 

19  So.  565.  \pp.     Div.    257;     Mechanicville    v. 

Massachusetts:    Dunbar   v.    Old  Stillwater  &  M.  St.  Ry.  Co.,  71  N.  Y. 

Colony  St.    Ry.   Co.,    188  Mass.    ISO,  Supp.     1102,    35    Misc.     513;     Bing- 

74  N.  E.  352;  Hyde  v.  City  of  Boston,  hamton    v.   Binghamton    &    P.    D. 

531 


§    337  OBLIGATION    OF    CONTRACTS    CONTINUED 

reserved  to  the  city  so  to  do  it  may  impose  additional  require- 
ments as  to  street  paving  upon  street  railroad  companies  as 
where  there  is  reserved  the  power  of  legislative  control  and 
the  right  to  alter  when  deemed  necessary.70  So  a  right  may 
exist  to  declare  void  a  street  railway's  franchises  or  privileges 
in  streets  of  a  municipality  in  case  of  failure  to  accept  in 
writing  the  conditions  on  which  it  is  permitted  to  use  said 
streets,  a  right  to  revoke  such  franchise  having  been  reserved, 
one  of  such  conditions  being  the  payment  of  street  paving  im- 
provements.71 On  December  12,  1883,  the  city  of  Sioux  City, 
in  Iowa,  by  ordinance,  conferred  on  a  street  railway  company, 
incorporated  December  6,  1883,  under  the  general  laws  of 
Iowa,  the  right  of  operating  a  street  railway,  with  the  require- 
ment that  it  should  pave  the  street  between  the  rails.  Sub- 
sequently, under  an  act  of  1884,  the  city,  by  ordinance,  re- 
quired the  company  also  to  pave  the  street  for  one  foot  outside 
of  the  rails,  and  assessed  a  special  tax  against  it  for  the  cost 
of  the  paving  outside  of  the  rails.  It  was  held,  that  there  was 
no  contract  between  the  company  and  the  State  or  the  city, 
the  obligation  of  which  was  impaired  by  the  laying  of  the  tax. 
But  it  appeared  that  under  section  1090  of  the  Code  of  Iowa, 
which  was  in  force  when  the  company  was  incorporated,  its 
franchise  was  subject  to  such  conditions  as  the  legislature 
should  thereafter  impose  as  necessary  for  the  public  good.72 

Ry.  Co.,  16  N.  Y.  Supp.  225,  61  Hun,  Texas:   Kettle  v.  City  of  Dallas, 

479.  35  Tex.  Civ.  App.  632,  80  S.  W.  874; 

Ohio:  Cleveland  v.  Cleveland  Elec-  Laredo  Elect.  &  Ry.  Co.  v.  Hamilton, 

trie  R.  Co.,  3  Ohio  Dec.  92,  1  Ohio  N.  23  Tex.  Civ.  App.  480,  56  S.  W.  998. 

P.  413.  Wisconsin:  Milwaukee  Elec.  Ry.  & 

Pennsylvania:  West  Chester  Bor-  L.  Co.  v.  Milwaukee,  95  Wis.  39,  69 

ough  v.  West  Chester  St.  Ry.  Co.,  N.  W.  794,  36  L.  R.  A.  45. 

203  Pa.  201,  52  Atl.  252;  Philadelphia  70  Sioux  City  St.  Ry.  Co.  v.  Sioux 

v.  Hestonville,  M.  &  F.  Pass.  Ry.  Co.,  City,  78  Iowa,  367,  43  N.  W.  224,  39 

203    Pa.  38,  52  Atl.    184;   Reading,  N.  W.  498. 

City  of,  v.  United  Traction  Co.,  202  «  Union  St.  Rd.  Co.  v.  Snow,  113 

Pa.    571,    52    Atl.    106;    Reeves    v.  Mich.  694,  4  Det.  L.  N.  455,  71  N.  W. 

Philadelphia   Traction   Co.,   152   Pa.  1073. 

153,  4  Am.    Elec.   Cas.   27,  25  Atl.  72  Sioux  City  R.  Co.  v.  Sioux  City, 

516;  Philadelphia  v.  Ridge  Ave.  Pass.  138  U.  S.  98,  34  L.  ed.  898, 11  Sup.  Ct. 

Ry.  Co.,  143  Pa.  St.  444,  22  Atl.  695.  226,  9  Ry.  &  Corp.  L.  J.  251,  46  Am. 

532 


OBLIGATION    OF    CONTRACTS    CONTINUED  §   338 

Again,  the  act  of  the  legislature  of  Louisiana73  authorizing 
the  enforcement  by  mandamus  without  a  jury  of  contracts 
by  corporations  with  municipal  corporations  in  that  State 
with  reference  to  the  paving,  grading,  repairing,  etc.,  of  streets, 
highways,  bridges,  etc.,  simply  gives  an  additional  remedy  to 
the  party  entitled  to  the  performance,  without  impairing  any 
substantial  right  of  the  other  party,  and  does  not  impair  the 
obligation  of  the  contract  sought  to  be  enforced,  and  is  not  in 
conflict  with  the  Constitution  of  the  United  States.74  The 
statute  of  Massachusetts  of  1898 75  providing  for  taxation  of 
street  railway  companies  is  held  not  void,  as  violating  the  im- 
pairment of  obligation  clause  of  the  Federal  Constitution, 
because  it  relieved  a  railroad  company  from  the  obligation  to 
pave  and  repair  streets  under  the  terms  and  conditions  of  cer- 
tain municipal  ordinances  which  the  company  had  duly  ac- 
cepted.76 

§  338.  Same  Subject — Exemption  from  Assessment  for 
Street  Paving — Consolidation.77 — Although  the  obligations  of 
a  legislative  contract  granting  immunity  from  the  exercise  of 
governmental  authority  are  protected  by  the  Federal  Con- 
stitution from  immunity  by  the  State,  the  contract  itself  is 
not  property  which  can  be  transferred  by  the  owner  to  another, 
but  is  personal  to  him  with  whom  it  is  made  and  incapable  of 
assignment,  unless  by  the  same  or  a  subsequent  law  the  State 
authorizes  or  directs  such  transfer;  and  this  applies  to  a  con- 
tract of  exemption  with  a  street  railway  company  from  assess- 
ments for  paving  between  its  tracks.  A  legislative  authority 
to  transfer  the  estate,  property,  rights,  privileges  and  fran- 
chises of  a  corporation  to  another  corporation  does  not  au- 
thorize the  transfer  of  a  legislative  contract  of  immunity  from 
assessment.     And  where  a  corporation  incorporates  under  a 

&  Eng.  R.  Cas.  169,  aff'g  78  Iowa,  "  Laws  1898,  chap.  578. 

367,  43  N.  W.  224.  7e  City  of  Worcester  v.  Worcester 

71  Art  July  12,  1888,  No.  133.  Con.  St.  Ry.  Co.,  196  U.  S.  539,  49 

74  New  Orleans,  C.  &  L.  R.  Co.  v.  L.  ed.  591,  25  Sup.  Ct.  327. 

New  Orleans,  L57  1'.  S.  219,  39  L.  ed.  "  See  §  20,  herein. 

679,  15  Sup.  Ct.  581. 

533 


§   338  OBLIGATION    OF    CONTRACTS    CONTINUED 

general  act  which  creates  certain  obligations  and  regulations, 
it  cannot  receive  by  transfer  from  another  corporation  an  ex- 
emption which  is  inconsistent  with  its  own  charter  or  with  the 
constitution  or  laws  of  the  State  then  applicable,  even  though 
under  legislative  authority  the  exemption  is  transferred  by 
words  which  clearly  include  it.     Again,  although  two  corpo- 
rations may  be  so  united  by  one  of  them  holding  the  stock  and 
franchises  of  the  other,  that  the  latter  may  continue  to  exist 
and  also  to  hold  an  exemption  under  legislative  contract,  that 
is  not  the  case  where  its  stock  is  exchanged  for  that  of  the 
former  and  by  operation  of  law  it  is  left  without  stock,  officers, 
property  or  franchises,  but  under  such  circumstances  it  is 
dissolved  by  operation  of  the  law  which  brings  this  condition 
into  existence.78    In  the  state  court  in  this  case  the  following 
decision  was  rendered :  the  immunity  from  contribution  to  the 
expense  of  new  pavements  in  the  city  of  Rochester,  conferred 
by  chapter  34  of  the  Laws  of  1869  upon  the  Rochester  City 
and   Brighton  Railroad  Company,   a  street  surface  railroad 
incorporated  in  1868  under  the  Railroad  Law  of  1850,  which, 
by  purchase  at  foreclosure  sale,  had  acquired  the  franchises 
of  a  prior  company  organized  under  the  same  act,  and  which 
had  constructed  the  road,  was  not  a  contract  right  of  which 
the  company  could  not  be  deprived  by  subsequent  legislation. 
The  fact  that  the  conditions  attached  to  the  original  consent 
were  modified  by  the  city,  they  being  deemed  too  onerous  for 
the  company,  by  an  ordinance  passed  prior  to  the  act,  which 
exempted   it   from  the   expense  of  new   pavements   for  five 
years,  and  also  provided  that  the  fare  for  children  between 
twelve  and  five  years  should  be  reduced,  and  that  both  parties 
united  in  submitting  it  to  the  legislature  which  enacted  the  law 
in  question,  except  as  to  the  five  year  limitation,  and  that  after 
its  passage  the  company  extended  its  lines  into  other  streets, 
as  permitted  by  the  statute,  does  not  render  it  an  irrevocable 
agreement  by  the  State  to  exempt  the  company  from  such 
expense  as  to  those  streets.    The  statute  did  not  recite  that 

78  Rochester  Railway  Co.  v.  Roch-    Sup.   Ct.   469,   aff'g    182  N.   Y.  99, 
ester,  205  U.  S.  236,  51   L.  ed.  — ,  27    116. 
534 


OBLIGATION    OF    CONTRACTS    CONTINUED  §   339 

application  was  made  to  the  legislature  by  either  party  for 
the  adoption  of  any  contract  between  the  city  and  the  com- 
pany. It  did  not  ratify  or  assume  to  ratify  any  contract.  It 
did  not  grant  a  franchise,  since  that  had  already  been  acquired. 
It  did  not  amend  or  assume  to  amend  the  charter  of  the  com- 
pany, and  if  it  had,  the  charter  would  have  been  subject  to 
repeal.  No  acceptance  by  the  railroad  company  was  requisite, 
and,  therefore,  the  fact  that  it  continued  to  operate  its  road 
and  to  construct  lines  in  other  streets,  in  alleged  reliance  upon 
perpetual  exemption  as  to  such  streets,  cannot  be  regarded  as 
furnishing  a  consideration  therefor.  The  statute  did  give  an 
exemption,  but  being  without  a  consideration,  a  mere  gratuity 
or  privilege  was  conferred  which  was  revocable  at  the  pleasure 
of  the  legislature.  When,  therefore,  by  section  9  of  chapter  250 
of  the  Laws  of  1884,  the  provisions  of  which  were  re-enacted 
in  the  General  Railroad  Law,79  the  cost  of  repavement  as 
specified  was  imposed  upon  all  street  surface  railroads  operat- 
ing in  cities,  a  contention  by  the  lessee  of  such  railroad  com- 
pany that  it  did  not  apply  to  streets  in  which  the  lessor  had 
constructed  and  operated  its  lines  before  its  enactment,  and 
that  as  to  these  a  contract  of  exemption  existed,  the  obligation 
of  which  could  not  be  impaired  by  subsequent  legislation,  is 
untenable.  Assuming,  however,  that  the  statute  constituted 
a  contract,  exemptions  from  taxation  or  from  the  exercise  of 
the  police  power  are  to  be  construed  strictissimi  juris;  they  are 
against  common  right  and  must  be  held  to  be  personal  and 
limited  to  the  grantee  unless  a  contrary  intention  clearly  ap- 
pears. The  right  to  exemption,  therefore,  did  not  pass  to  the 
lessee,  the  language  being  personal  and  not  attached  to  the 
property,  the  statute  enacting  that  "said  company,"  not 
"said  company,  its  successors  and  assigns,"  shall  not  be  re- 
quired to  bear  any  part  of  the  expense  of  repaving  the  streets.80 

§  339.  Impairment    of    Obligation    of    Contracts — Illus- 

78  L.  1890,  chap.  565,  §  98.  Ry.  Co.  v.  Rochester,  205  U.  S.  236, 

80  City  of  Rochester  v.  Rochester   27  Sup.  Ct.  469. 
Ry.  Co.,  182  N.  Y.  99,  aff'd  Rochester 

535 


§   339  OBLIGATION  OF    CONTRACTS    CONTINUED 

trative  Decisions — Insurance — Banks — Rate  of  Interest — 
Pullman  Cars. — Where  there  is  a  reserved  power  in  the  legis- 
lature to  alter,  amend  or  repeal  charters,  a  law  permitting 
mutual  life  associations  to  reincorporate  as  regular  life  in- 
surance companies  is  not  unconstitutional  as  impairing  the 
obligation  of  the  contracts  existing  between  such  associa- 
tions and  their  policy  holders,  or  as  depriving  such  policy 
holders  of  their  property  without  due  process  of  law.  Under 
the  power  to  alter,  amend  and  repeal  charters  reserved  in  the 
constitution  of  1846  of  New  York,  chapter  722  of  the  Laws  of 
1901  does  not  impair  the  obligation  of  contracts  existing  be- 
tween mutual  life  associations  and  their  policy  holders,  nor  in 
this  case  did  the  reincorporation  of  such  an  association  as  a 
regular  life  insurance  company  deprive  its  policy  holders  of 
their  property  without  due  process  of  law.81  The  act  of  the 
legislature  of  Kentucky  of  February  14,  1856,  and  the  act  of 
May  12,  1884,  c.  1412,  incorporating  the  Citizens'  Savings 
Bank  of  Owensboro,  and  the  act  of  May  17,  1886,  commonly 
known  as  the  Hewitt  Act,  and  other  acts  referred  to,  did  not 
create  an  irrevocable  contract  on  the  part  of  the  State,  pro- 
tecting the  bank  from  other  taxation,  and  therefore  the  tax- 
ing law  of  Kentucky  of  November  11,  1892,  c.  108,  did  not 
violate  the  contract  clause  of  the  Constitution  of  the  United 
States.82    The  provision  in  section  10  of  article  1,  of  the  Con- 

81  Polk  v.  Mutual  Reserve  Fund  privileges,  constituted  a  valid  and 
Life  Association  of  New  York,  207  binding  contract.  Commonwealth 
U.  S.  310;  Wright  v.  Minnesota  Life  to  use  of  Franklin  Co.  v.  Farmers' 
Ins.  Co.,  193  U.  S.  657,  48  L.  ed.  832,  Bank  of  Kentucky  et  al.,  97  Ken- 
24  Sup.  Ct.  549.  tucky,  590.    In  a  later  case  the  Court 

82  Citizens'  Savings  Bank  of  Owens-  of  Appeals  of  Kentucky  held  the  law 
boro  v.  Owensboro,  173  U.  S.  636,  43  not  to  constitute  an  inviolable  con- 
L.  ed.  840,  19  Sup.  Ct.  530.  tract.     Deposit  Bank  of  Owensboro 

"The  so-called  Hewitt  law,    *    *    *  v.  Daviess  Co.,  102  Kentucky,  174. 

has  given  rise  to  much  litigation  in  When  the  law  was  before  this  court, 

the  courts  of  Kentucky,  as  well  as  in  the    same    conclusion    was    reached, 

those  of  the  United  States.     At  one  Citizens'  Savings  Bank  of  Owensboro 

time  it  was  held  by  the  Court  of  Ap-  v.  Owensboro,  173  U.  S.  636,  43  L. 

peals    of    Kentucky    that    its    pro-  ed.  840,  19  Sup.  Ct.  530.    It  may  be 

visions,  when  complied  with  by  the  now  regarded  as  the  settled  law  that 

bank    seeking   to   avail    itself   of   its  this  enactment  did  not  constitute  a 

536 


OBLIGATION    OF   CONTRACTS   CONTINUED  §   339 

stitution  of  the  United  States  that  "no  State  shall  'pass  any' 
law  impairing  the  obligation  of  contracts,"  does  not  forbid  a 
State  from  legislating,  within  its  discretion,  to  reduce  the  rate 
of  interest  upon  judgments  previously  obtained  in  its  courts; 
as  the  judgment  creditor  has  no  contract  whatever  in  that 
respect  with  the  judgment  debtor,  and  as  the  former's  right 
to  receive,  and  the  latter's  obligation  to  pay  exists  only  as  to 
such  an  amount  of  interest  as  the  State  chooses  to  prescribe 
as  a  penalty  or  liquidated  damages  for  the  nonpayment  of  the 
judgment.83  The  Pullman  company,  a  corporation  of  the 
State  of  Illinois,  contracted  with  the  railway  companies  op- 
erating lines  of  interstate  railroads  in  Kansas  to  furnish  them 
a  sufficient  number  of  Pullman  cars  to  meet  the  demands  of 
the  travelling  public  for  that  kind  of  service,  to  equip  such 
cars  for  use,  to  provide  conductors  and  porters  for  them,  and 
to  supply  Pullman  accommodations  to  railway  passengers 
holding  proper  tickets  without  discrimination  between  such 
passengers,  reserving  the  right  to  charge  and  collect  from 
passengers  demanding  the  service  compensation  therefor. 
Subsequently  the  legislature  enacted  a  law  requiring  foreign 
corporations  to  comply  with  certain  conditions,  including  the 
payment  of  charter  fees  for  the  privilege  of  transacting  inter- 
state business,  to  which  law  the  Pullman  company  refused 
to  submit.  It  was  held,  that  a  judgment  ousting  it  from  the 
franchise  of  charging  and  collecting  compensation  for  Pullman 
accommodations  furnished  to  passengers  taken  up  and  set 
down  within  the  limits  of  the  State  did  not  violate  the  obli- 
gation of  its  contracts  with  the  railway  companies.84 

fon tract  between  the  State  and  the  criticism   of  the   Dartmouth   College 

banks  as  to  taxation,  bul  is  subject  v.  Woodward,  4  Wheat.   (17  U.  S.) 

to  modification  and  repeal  by  subse-  518,  4  L.  ed.  629,  see  Knoup  v.  Piqua 

quent  laws  of  the  State  undertaking  Bank,  1  Ohio  St.  603,  60S,  609,  per 

to    tax    bank    property."      Deposit  Corwfn,  J. 

Bank  v.  Frankfort,  I'M  V.  S.  499,48  83  Morley  v.  Lake  Shore  &  M.  S.  Ry. 

I.,  ed.  229,  24  Sup.  Ct.  107,  per  Day,  Co.,  146  U.  S.  162,  36  L.  ed.  925,  13 

J.  Sup.  Ct.  47. 

As    to    corporations    for    banking  84  State    v.    Pullman    Co.     (Kan., 

purposes  not   being  a  contract  and  1907),  90  Pac.  319. 

537 


§    340  OBLIGATION    OF   CONTRACTS    CONTINUED 

§  340.  Impairment  of  Obligation  of  Contracts — Illus- 
trative Decisions  Continued — Tunnel — Ferries — Bridges — 
Canal. — A  municipal  ordinance  giving  permission  to  a  street 
railroad  company  to  construct  a  tunnel  under  a  navigable 
stream,  the  law  of  the  State  providing  that  railways  shall  not 
be  constructed  so  as  to  interrupt  the  navigation  of  any  water 
in  the  State,  does  not  amount  to  a  contract  under  the  con- 
tract clause  of  the  constitution,  so  that  the  city  could  not 
subsequently  require  the  company  to  lower  the  tunnel  so  as 
not  to  interfere  with  the  increased  demands  of  navigation; 
nor,  in  the  absence  of  any  provision  to  that  effect,  would 
it  be  construed  as  containing  an  implied  covenant  that  the 
municipality  would  bear  the  expense  of  such  alterations  re- 
quired by  subsequent  ordinances.  In  a  navigable  stream  the 
public  right  is  paramount,  and  the  owner  of  the  soil  under  the 
bed  can  only  use  it  so  far  as  consistent  with  the  public  right; 
and  a  municipality,  through  which  a  navigable  stream  flows, 
cannot  grant  a  right  to  obstruct  the  navigation  thereof  nor 
bind  itself  to  permit  the  continuance  of  an  obstruction;  and 
the  rule  is  not  affected  by  the  fact  that  the  person  claiming  a 
right  to  continue  such  an  obstruction  is  the  owner  in  fee  of  the 
bed  of  the  stream.85  A  ferry  connecting  Wheeling  with  Wheel- 
ing Island  was  licensed  at  an  early  day  in  Virginia.  Subse- 
quently a  general  law  of  that  State  prohibited  the  courts  of 
the  different  counties  from  licensing  a  ferry  within  a  half  a 
mile  in  a  direct  line  from  an  established  ferry.  In  1847  the 
defendant  purchased  the  ferry  and  its  rights.  It  was  held 
(1)  that  the  general  law  of  Virginia  had  in  it  nothing  in  the 
nature  of  a  contract ;  (2)  that  the  transfer  of  the  existing  rights 
from  the  vendor  to  the  vendee  added  nothing  to  them.86 
From  the  year  1681  to  1783,  a  franchise  on  the  ferry  over  the 
Connecticut  River  belonged  to  the  town  of  Hartford,  situated 
on  the  west  bank  of  the  river.  In  1783,  the  legislature  incor- 
porated the  town  of  East  Hartford,  and  granted  to  it  one-half 

85  West  Chicago  Street  Railroad  86  Wheeling  &  Belmont  Bridge  Co. 
Co.  v.  Chicago,  201  U.  S.  506,  50  L.  v.  Wheeling  Bridge  Co.,  138  U.  S. 
ed.  845,  26  Sup.  Ct.  518.  287, 11  Sup.  Ct.  301,  34  L.  ed.  967. 

538 


OBLIGATION    OF    CONTRACTS   CONTINUED  §    340 

of  the  ferry  during  the  pleasure  of  the  General  Assembly. 
In  1808  a  company  was  incorporated  to  build  a  bridge  across 
the  river,  which,  being  erected,  was  injured  and  rebuilt  in 
1818,  when  the  legislature  resolved  that  the  ferry  should  be 
discontinued.  This  act,  discontinuing  the  ferry,  was  held  not 
inconsistent  with  that  part  of  the  Constitution  of  the  Uni- 
ted States  which  forbids  the  States  from  passing  any  law  im- 
pairing the  obligation  of  contracts.  It  was  also  decided  that 
there  was  no  contract  between  the  State  and  the  town  of  East 
Hartford,  by  which  the  latter  could  claim  a  permanent  right 
to  the  ferry.  The  nature  of  the  subject-matter  of  the  grant, 
and  the  character  of  the  parties  to  it,  both  show  that  it  is  not 
such  a  contract  as  is  beyond  the  interference  of  the  legislature. 
Besides,  the  town  of  East  Hartford  only  held  the  ferry  right 
during  the  pleasure  of  the  General  Assembly,  and  in  1818  the 
latter  expressed  its  pleasure  that  the  ferry  should  cease.  After 
the  year  1818,  the  legislature  passed  several  acts  contradic- 
tory to  each  other,  alternately  restoring  and  discontinuing  the 
ferry.  Those  which  restored  the  ferry  were  declared  to  be 
unconstitutional  by  the  state  courts,  upon  the  ground  that  the 
act  of  1818  had  been  passed  to  encourage  the  bridge  company 
to  rebuild  their  bridge,  which  had  been  washed  away.  But 
these  decisions  were  not  properly  before  the  Federal  Supreme 
Court  in  this  case  for  revision.  The  town  of  East  Hartford, 
having  no  right  to  exercise  the  ferry  privilege,  may  have  been 
correctly  restrained,  by  injunction,  from  doing  so,  by  the  state 
court.87  But  a  grant  of  a  ferry  franchise  by  the  legislature  is 
held  a  contract  within  the  meaning  of  that  provision  of  the 
Constitution  prohibiting  the  passage  of  laws  impairing  the 
obligal  ion  of  contracts.88  An  enactment  by  a  State,  in  incorpo- 
rating a  company  to  build  a  toll  bridge  and  take  tolls  fixed  by 
the  act,  that  it  should  not  be  lawful  for  any  person  or  persons 
to  erect  any  bridge  within  two  miles  either  above  or  below  the 

BEast      Hartford     v.      Hartford       88  McRoberts    v.    Washburne,    10 
Bridge  Co.,  10  How.  (51  U.  S.)  511,    Minn.  23. 
13  L.  ed.  518,  aff'd  10  How.  (51  U.  S.) 
541,  13  L.  ed.  531. 

539 


§   340  OBLIGATION   OF   CONTRACTS  CONTINUED 

bridge  authorized,  was  held  to  be  a  contract  inviolable  even 
though  the  charter  of  the  company  was  without  limit  as  to 
the  duration  of  its  existence.89    The  statute  of  the  legislature 
of  New  Jersey,  passed  a.  d.  1790,  by  which  that  State  gave 
power  to  certain  commissioners  to  contract  with  any  persons 
for  the  building  of  a  bridge  over  the  Hackensack  River;  and 
by  the  same  statute  enacted  that  the  "said  contract  should 
be  valid  on  the  parties  contracting  as  well  as  on  the  State  of , 
New  Jersey;"  and  that  it  should  not  be  "lawful"  for  any 
person  or  persons  whatsover  to  erect  "any  other  bridge  over 
or  across  the  said  river  for  ninety-nine  years," — is  a  contract, 
whose  obligation  the  State  can  pass  no  law  to  impair.90    A  rail- 
way viaduct,  if  nothing  but  a  structure  made  so  as  to  lay  iron 
rails  thereon,  upon  which  engines  and  cars  may  be  moved  and 
propelled  by  steam,  not  to  be  connected  with  the  shore  on 
either  side  of  said  river  except  by  a  piece  of  timber  under  each 
rail,  and  in  such  a  manner,  as  near  as  may  be,  so  as  to  make  it 
impossible  for  man  or  beast  to  cross  said  river  upon  said  struc- 
ture, except  in  railway  cars  (the  only  roadway  between  said 
shores  and  said  structure  being  two  or  more  iron  rails,  two  and 
a  quarter  inches  wide,  four  and  a  half  inches  high,  laid  and 
fastened  upon  said  timber  four  feet  ten  inches  asunder),  is  not 
a  "bridge"  within  the  meaning  of  the  said  act  of  New  Jersey, 
of  1790;  and  the  Act  of  Assembly  of  that  same  State,  passed 
a.  d.  1860,  authorizing  a  company  to  build  a  railway,  with 
the  necessary  viaduct,  over  the  Hackensack,  does  not  impair 
the  obligation  of  the  contract  made  by  the  aforesaid  act  of 
1790.91    Congress  cannot  abolish  or  so  limit  tolls  as  to  impair 
vested  rights  of  bondholders  of  a  canal  company.92 

89  Binghamton  Bridge,  The,  3  91  Bridge  Proprietors  v.  Hoboken 
Wall.  (70  U.  S.)  51,  18  L.  ed.  137,  Company,  1  Wall.  (68  U.  S.)  116,  17 
following  Dartmouth  College  v.  L.  ed.  571,  Catron,  J.,  dissenting. 
Woodward,  4  Wheat.  (17  U.  S.)  518,  92  United  States  v.  Louisville  & 
625,  4  L.  ed.  629.  Portland  Canal  Co.,  1  Flipp.   (U.  S. 

90  Bridge  Proprietors  v.  Hoboken  C.  C.)  260,  Fed.  Cas.  No.  15,633,  1 
Company,  1  Wall.  (08  U.  S.)  116,  17  Cent.  L.  J.  101. 

L.  ed.  571. 


i40 


CONDITIONS    IMPOSED — GRANT    OF    FRANCHISE 


CHAPTER  XXI. 


CONDITIONS    IMPOSED — GRANT   OF    FRANCHISE. 


341.  Conditions  Imposed  by  Con- 

gress. 

342.  Conditions  Imposed  by  Legis- 

lature. § 

343.  Municipal      Powers  —  Gener- 

ally. 

344.  Municipal        Control        Over 

Streets— Franchise  Rights 
of   Corporations. 

345.  Same  Subject. 

346.  Implied      Conditions  —  Rail- 

road Company  —  City 

Streets — New  Streets  and 
Crossings — Police   Power. 

347.  Conditions — Payment  of  Ex- 

penses or  Percentage — Ar- 
bitration —  Submission  to 
Electors. 

348.  Conditions — Acceptance. 

349.  Same  Subject. 

350.  Same    Subject — Implied    Ac- 

ceptance —  Presumption — 
Evidence. 

351.  Foreign      Corporation — Situs 

of — Interstate  Comity. 

352.  Power    of    State    to    Impose 

Conditions  Upon  Foreign 
Corporations. 

353.  Same  Subject  —  Instances  — 

Certificate — Designation  of 
Corporate  Agent,  etc.  — 
Service  of   Process. 

354.  Same        Subject  —  Instances 

Continued  —  Interstate 
Commerce  ■  Insurai  ce, 
Railroad  and  Other  Cor- 
porations. 

355.  Power    of    State   to   Impose 

Conditions  Upon  Foreign 
Corporations  —  Agreement 


not  to  Remove  Suit  to 
Federal  Court — Waiver  of 
Right. 

356.  Condition      as      to     License, 

Privilege,  Business  or  Oc- 
cupation Charge,  Rental, 
Fee  or  Tax — Interstate 
Commerce  —  Equal  Pro- 
tection of  Law. 

357.  Condition  as  to  License,  etc., 

Fee  or  Tax  Continued — 
Constitutional  Law — In- 
surance Companies  —  De- 
cisions. 

358.  Condition  as  to  License,  etc., 

Fee,  or  Tax  Continued — 
Interstate  Commerce — Ex- 
press Companies — Deci- 
sions. 

359.  Condition  as  to  License,  etc., 

Fee  or  Tax  Continued — 
Constitutional  Law — Rail- 
roads— Consolidated  Rail- 
roads— Street  Railroads — 
Decisions. 

360.  Condition  as  to  License,  etc., 

Fee  or  Tax  Continued  — 
Telegraph  Companies. 

361.  Condition  as  to  License,  etc., 

Fee   or  Tax    Continued- 
Constitutional     Law — Gas 
Franchise — Brewing    Com- 
pany—  Packing  Houses 
Decisions. 

362.  Imposing   New   Conditions — 

Police    Power. 

363.  Conditions       Subsequent    - 

Construction  of — Perform- 
ance. 

541 


§   341  CONDITIONS   IMPOSED — 

§341.  Conditions  Imposed  by  Congress. — In  a  railroad 
land  grant  Congress  may  impose  conditions,  such  as  for  the 
transportation  of  property  or  troops  of  the  United  States  and 
that  the  land  shall  remain  and  be  a  public  highway  for  the  use 
of  the  government,  although  this  does  not  entitle  it  to  free 
transportation  of  such  property  or  troops.1  So  conditions  for 
forfeiture  of  a  railroad  land  grant  to  aid  in  construction  of  the 
road  may  be  imposed  by  an  act  of  Congress  if  the  road  is  not 
completed  within  a  certain  number  of  years,  but  such  con- 
dition subsequent  can  only  be  enforced  by  the  United  States.2 
But  where  an  act  of  Congress  appropriates  money  to  be  paid 
to  railroad  companies  to  carry  out  a  scheme  of  public  improve- 
ments in  the  District  of  Columbia  and  such  enactment  also  re- 
quires those  companies  to  eliminate  grade  crossings  and  erect 
a  union  station,  and  recognizes  and  provides  for  the  surren- 
der of  existing  rights,  it  is  an  act  appropriating  money  for 
governmental  purposes,  and  not  for  the  private  use  of 
those  companies,  and  the  statutes3  for  thus  eliminating 
grade  crossings,  etc.,  are  not  unconstitutional  on  the  groimd 
that  they  appropriate  moneys  to  be  paid  railway  com- 
panies for  their  exclusive  use,  nor  is  the  property  of  a  tax- 
payer taken  without  due  process  of  law  by  reason  of  the 
taxes  imposed  under  such  statutes.4  If  special  conditions  are 
imposed  by  Congress  under  a  special  act  of  Congress  incorpo- 
rating a  railroad  company,  and  such  conditions  are  a  prere- 
quisite to  the  acceptance  of  certain  benefits,  and  particular 
interests  are  also  protected  under  such  grant,  if  the  conditions 
are  accepted  and  the  special  interests  have  determined,  the 

1  Lake  Superior  &  Miss.  R.  Co.  v.  July  2,  1864,  non-completion  of  the 
United  States,  93  U.  S.  442,  23  L.  ed.  railroad  within  the  time  limited  did 
965.  See  Joyce  on  Electric  Law  (2d  not  operate  as  a  forfeiture);  United 
ed.),  §§  31,  37a,  38.  States  v.  Tenn.  &  C.  R.  Co.,  176  U. 

2  Lake  Superior  S.  C.  Iron  Co.  v.  S.  242,  44  L.  ed.  452,  20  Sup.  Ct.— . 
Cunningham,  155  U.  S.  354,  15  Sup.        3  Acts  Cong.  Feb.  12,  1901,  31  Stat 
Ct.    103,   39   L.    ed.    183.      Compare  767,  774,  and  of  Feb.  28,  1903,  32 
United   States  v.   Northern  Pac.  R.  Stat.  909. 

Co.,  177  U.  S.  435,  44  L.  ed.  836,  20        4  Millard  v.  Roberts,  202  U.  S.  429, 
Sup.  Ct.  706  (where  under  the  act  of   50  L.  ed.  1090,  26  Sup.  Ct.  674. 

542 


GRANT   OF    FRANCHISE  §§    342,    343 

corporation  is  not  precluded  from  availing  itself  of  the  general 
railway  law.5 

§  342.  Conditions  Imposed  by  Legislature. — As  we  have 
stated  substantially  elsewhere,  the  legislature  has  authority  to 
determine  and  direct  the  conditions  upon  which  a  corporation 
organized  for  a  public  purpose  and  enjoying  a  public  franchise 
shall  exercise  the  right  conferred  upon  it; 6  that  is,  the  State 
may  prescribe  upon  what  conditions  the  rights  and  privileges 
granted  by  it  shall  be  held  and  enjoyed.7  So  it  is  declared  that 
it  has  never  been  doubted  that  the  legislative  authority,  in 
making  a  grant  of  a  corporate  franchise,  can  prescribe  such 
terms  and  such  conditions  for  its  acceptance  and  for  its  enjoy- 
ment as  it  shall  deem  best,  not  inconsistent  with  constitutional 
limitations.  The  manner  of  enjoying  the  franchise,  its  life,  its 
scope,  are  all  subject  to  legislative  control.8  It  is  also  asserted 
that:  "There  is  no  doubt,  that  among  the  powers  so  delegated 
to  the  legislature,  is  the  power  to  grant  the  franchises  of  bridges 
and  ferries,  and  others  of  a  like  nature.  The  power  to  grant  is 
not  limited  by  any  restrictive  terms  in  the  Constitution,  and  it 
is  of  course  general  and  unlimited  as  to  the  terms,  the  manner, 
and  the  extent  of  granting  franchises.  These  are  matters  rest- 
ing in  its  sound  discretion;  and  having  the  right  to  grant,  its 
grantees  have  the  right  to  hold,  according  to  the  terms  of  their 
grant,  and  to  the  extent  of  the  exclusive  privileges  conferred 
thereby."9 

§  343.  Municipal  Powers — Generally. — Municipal  corpora- 
tions, in  the  exercise  of  their  duties,  arc  a  department  of  the 

State;  they  arc  in  every  essential  only  auxiliaries  of  the  State 

s  United  States,  Search,   v.  Choc-  8  Jersey   City   Gas    Light    Co.     v. 

taw,  O.  &  G.  R.  Co.,  3  Okla.  404,  41  United    Gas    Improvement    Co.,    46 

Pac.  729,  Fed.  264,  2G6,  per  Greene,  J.,  case 

0  See  §  96,  herein,  and  cases  cited  aff'd  58  Fed.  323. 

at  pp.  189,  190.  'Charles  River  Bridge  v.  Warren 

7  Delaware,  L.  &  W.  R.  Co.  v.  Ccn-  Bridge,  1 1   Pet.  (36  U.  S.)  420,  644, 

tral  Stock  Yard  &  T.  Co.,  43  N.  J.  645,  9  L.  ed.  773,  per  Story,  J.,  in 

Eq.  71,  10  Atl.  490.  dissenting   opinion. 

543 


§    343  CONDITIONS    IMPOSED — 

for  the  purposes  of  local  government;  they  are  simply  political 
subdivisions  of  the  State  existing  by  virtue  of  the  exercise  of 
the  power  of  the  State  through  its  legislative  department;  they 
may  be  created,  or,  having  been  created,  may  be  destroyed,  or 
their  powers  may  be  restricted,  enlarged  or  withdrawn  at  the 
will  of  the  legislature,  subject  only  to  the  fundamental  con- 
dition that  the  collective  and  individual  rights  of  the  people 
of  the  municipality  shall  not  thereby  be  destroyed.10  These 
corporations,  being  created  only  to  aid  the  state  government 
in  the  legislation  and  administration  of  local  affairs,  possess 
only  such  powers  as  are  expressly  granted,  or  as  may  be  im- 
plied because  essential  to  carry  into  effect  those  which  are  ex- 
pressly granted.11  If  a  municipality  is  not  authorized  by  its 
charter  or  other  act  of  the  legislature  so  to  do  it  has  no  power 


10  Worcester,  City  of,  v.  Worcester  rey,    108   U.   S.  110,  27  L.  ed.  669, 

Con.  St.  Ry.  Co.,  196  U.  S.  539,  49  2  Sup.  Ct.— . 

L.  ed.  591,  25  Sup.  Ct.  327;  Atkin  v.       Alaska:    Ketchikan   Co.    v.    Citi- 

Kansas,  191  U.  S.  207,  48  L.  ed.  148,  zens'  Co.,  2  Alaska,  120. 
24  Sup.  Ct.  124.  Iowa:    Borough  v.  City   of  Cher- 

A   municipal    corporation,    in    the  okee     (Iowa,     1906),     109     N.     W. 

exercise  of  its  duties,  is  a  department  876. 

of  the  State.     Its   powers  may   be        Missouri:     Joplin,    City    of,     v. 

large  or  small;  they  may  be  increased  Leckie,  78  Mo.  App.  8,  2  Mo.  App. 

or  diminished  from  time  to  time  at  Repr.  123. 

the   pleasure   of   the    State,   or   the        South    Carolina:   Germania  Sav. 

State  may  itself  directly  exercise  in  Bank  v.  Darlington,  50  S.  C.  337,  27 

any  locality  all  the  powers  usually  S.  C.  846. 

conferred  upon  such  a  corporation.        Texas:     Waters-Pierce  Oil  Co.  v. 

Such  changes  do  not  alter  its  funda-  McElroy  (Tex.  Civ.  App.),  47  S.  W. 

mental    character.      Barnes    v.    Dis-  272. 

trict  of  Columbia,  91  U.  S.  540,  23  L.        Municipal    corporations    must   act 

ed.  440.  within  the  scope  of  their  powers  ex- 

"The  term  'municipality,'  when  pressly  conferred  or  within  such  as 
used  in  this  act,  includes  a  city,  are  necessary  to  the  exercise  thereof, 
village,  town  or  lighting  district,  Ogden  v.  Bear  Lake  &  River  Water 
organized  as  provided  by  gen-  Works  &  Irrig.  Co.,  16  Utah,  440,  41 
eral  or  special  act."  Public  Serv-  L.  R.  A.  305,  52  Pac.  697. 
ice  Commissions  Law  of  N.  Y.,  No  corporation,  municipal  or  other- 
Laws  1907,  p.  892,  chap.  429,  art.  wise,  possesses  any  powers,  except 
1,  §  2.  such    as    have    been    granted    to    it. 

"United  States:  Ottawa  v.  Ca-  State  v.  Mayor,  etc.,  of  New  York, 


3  Duer  (N.  Y.),  119. 


544 


GRANT    OF    FRANCHISE  §    343 

or  authority  to  enter  upon  or  take  the  land  of  a  citizen  for  the 
purpose  of  digging  or  laying  a  sewer  thereon;  especially  so 
where  no  mode  is  prescribed  for  the  condemnation  of  such 
property  for  public  use,  for  without  a  grant  of  such  power  no 
municipal  corporation  can  exercise  it.  To  justify  such  an 
authority  claimed  by  a  city  there  would  have  to  be  a  necessity 
for  the  taking  and  the  payment  of  just  and  adequate  com- 
pensation before  taking.12  Again,  in  the  absence  of  any  pro- 
vision to  that  effect  in  the  original  franchise,  the  city  granting 
a  franchise  to  a  street  railway  company,  cannot  on  the  ex- 
piration of  the  franchise,  take  possession  of  the  rails,  poles  and 
operating  appliances;  they  are  property  belonging  to  the 
original  owner,  and  an  ordinance  granting  that  property  to 
another  company  on  payment  to  the  owner  of  a  sum  to  be  ad- 
judicated as  its  value  is  void  as  depriving  the  owner  of  its 
property  without  due  process  of  law.13  Municipal  corpora- 
tions, as  in  case  of  county  boards  of  police,  when  authorized  by 
statute  to  do  acts  which  otherwise  they  would  have  no  power 
to  do,  such  as  subscribe  to  a  railroad  incorporated  and  be- 
ginning in  another  State  and  passing  through  their  own  State, 
cannot  modify  or  alter  the  subscription  as  authorized  by  the 
statute,  and  a  compromise  by  such  board  with  a  railroad  com- 
pany which  does  so  alter  or  modify  the  subscription  is  ac- 
cordingly void.14 

11  Butler  v.  Mayor,  etc.,  of  Thorn-  v.  Michigan  Cent.  R.  Co.,  Ill  U.  S. 

asville,  74  Ga.  570.  228,  28  L.  ed.  410,   4  Sup.  Ct.  369; 

13  Cleveland    Electric   Ry.    Co.    v.  Otoe  County  v.  Baldwin,  111  U.  S. 

Cleveland,  204  U.  S.  116,  51  L.  ed.  1,  28  L.  ed.  331,  4  Sup.  Ct.  265;  Hoff 

—,27  Sup.  Ct.  — .  v.  Jasper  County,  110  U.  S.  53,  28 

u  Bell    v.    Railroad   Co.,   4   Wall.  L.  ed.  68,  3    Sup.  Ct.  — ;    Lewis  v. 

(71  U.  S.)  598,  18  L.  ed.  338.     Ex-  Shreveport,  108  U.  S.  282,  27  L.  ed. 

amine  Hodges  v.  Dixon  County,  150  728,  2  Sup.  Ct.  634;   Jarrolt  v.   Mo- 

U.  S.  182, 191,  37  L.  ed.  1044, 14  Sup.  berly,  103  U.  S.  580,  26  L.  ed.  492; 

Ct.    71;    Brennan   v.   German-Amer-  Buchanan   v.    Litchfield,   102   U.   S. 

ican  Bank,  144  U.  S.  173,  36  L.  ed.  278,  26  L.  ed.  138;  Chicago,  City  of, 

390,  12  Sup.  Ct.  559;  Doon  Town-  v.  Galpin,  183  111.  399,  55  N.  E.  731. 

ship  v.  Commins,  142  U.  S.  366,  374,  Compare    Board    of    Liquidation    v. 

35   L.    ed.    1044,    12    Sup.    Ct.    220;  Louisville   &   Nashville   R.   Co.,   109 

Litchfield  v.   Bullou,  114  U.  S.  190,  U.  S.  221,  27  L.  ed.  916,  3  Sup.  Ct. 

29  L.  ed.  132,  5  Sup.  Ct.  820;  Hayes  144. 

35  545 


§   344  CONDITIONS   IMPOSED — 

§  344.  Municipal  Control  Over  Streets— Franchise  Rights 
of  Corporations. — Public  sidewalks  and  streets  are  for  use  by 
all  on  equal  terms  for  proper  purposes,  subject  to  valid  regu- 
lations prescribed  by  the  constituted  authorities.15  Under  a 
Virginia  decision,  public  highways,  whether  in  the  country  or 
a  city,  belong  entirely  to  the  public  at  large,  and  the  supreme 
control  over  them  is  vested  in  the  legislature.  The  power 
and  authority  of  a  city  is  contained  in  its  charter  and  limited 
thereby  and  it  has  no  other  or  different  control  of  its  streets 
than  is  prescribed  in  its  charter  or  the  general  statutes  of  the 
State.16  Under  the  law  of  Illinois  municipal  corporations  have 
a  fee  simple  in,  and  exclusive  control  over,  the  streets,  and  the 
municipal  authorities  may  do  anything  with,  or  allow  any  use 
of,  the  streets  not  incompatible  with  the  ends  for  which  streets 
are  established,  and  it  is  a  legitimate  use  of  a  street  to  allow 
a  street  railroad  track  to  be  laid  down  in  it.17  Under  a  New 
York  decision  the  authority  to  use  the  public  streets  of  a 
municipality  for  railroad  purposes  is  a  franchise  which  pro- 
ceeds from  the  State  and  a  municipality  has  no  power  in  re- 
spect thereto,  except  such  as  is  expressly  given  by  statute,  and 
then  only  upon  the  conditions  prescribed.18    In  a  Maryland 


15  Donovan   v.   Pennsylvania   Co.,  Supp.  789,  93  App.  Div.  .310,  aff'd 
199  U.  S.  279,  50  L.  ed.  192,  26  Sup.  in  179  N.  Y.  569,  72  N.  E.  1150. 

Ct.  91.    See  Scovel  v.  City  of  Detroit,  "The  power  of  the  legislature  to 

146  Mich.  93,  13  Det.  Leg.  N.  681,  authorize  the  construction  of  a  street 

109  N.  W.  20.  railroad  upon  the  streets  of  a  city  is 

16  Richmond,    City    of,    v.    Smith,  plenary  except  as     *     *     *     limited 
101  Va.  161,  165,  43  S.  E.  345.  by  the  constitution."    Adee  v.  Nas- 

17  Blair  v.  Chicago,  201  U.  S.  400,  sau  Elec.  Rd.  Co.,  76  N.  Y.  Supp. 
50  L.  ed.  801,  26  Sup.  Ct.  427.  589,  72  App.  Div.  404, 407,  per  Good- 

18  Village  of    Phcenix   v.   Gannon,  rich,   P.  J.,  case  aff'd  in  177  N.  Y. 
108  N.  Y.  Supp.  255,  123  App.  Div.  548. 

93   (case  reverses   106   N.   Y.   Supp.  Franchise    in    streets    to    railroad 

927,  55  Misc.  606,  Spring  and  Robin-  company.      See   the   following  cases: 

son,    JJ.,    dissenting),      citing    and  United   States:    Louisville  Trust 

quoting  from  Beekman  v.  Third  Ave.  Co.  v.  Cincinnati,  76  Fed.  296,  22  C. 

R.  R.  Co.,  153  N.  Y.  144,  152,  47  N.  C.  A.  334,  47  U.  S.  App.  36. 

E.  277,  278;  Potter  v.  Collis,  156  N.  California:  Areata  &  M.  R.  Co., 

Y.  16,  30,  50  N.  E.  413,  415.     See  92  Cal.  639,  28  Pac.  676. 

Rhinehart    v.    Redfield,    87    N.    Y.  Florida:     State,   Jacksonville,   v. 

546 


GRANT   OF    FRANCHISE  §    345 

case  it  is  said  that:  "The  rule  must  be  cons'. dered  settled,  that 
no  person  can  acquire  the  right  to  make  especial  or  exceptional 
use  of  the  public  highway,  not  common  to  all  the  citizens  of 
the  State,  except  by  grant  from  the  sovereign  power.  The 
right  to  use  the  public  streets  of  a  city  for  the  purpose  of  laying 
gas  pipes  therein,  is  a  privilege  which  the  State  alone  can  con- 
fer." 19  It  is  declared  in  a  case  in  Utah  that:  "The  public 
streets  of  a  city  are  dedicated  and  held  in  trust  for  the  use  of 
the  public,  and,  *  *  *  is  well  settled  by  the  great  weight 
of  authority  that  a  city  council  has  no  power  to  grant  a  fran- 
chise or  a  permit  to  an  individual  or  corporation  authorizing 
such  person  or  corporation  to  make  a  permanent  use  of  a  public 
street  for  exclusively  private  purposes,  to  the  detriment  of  the 
public  and  damage  to  private  property  abutting  upon  such 
street,"  and  such  council  cannot  authorize  a  railroad  company 
to  construct  a  permanent  switch  track,  for  the  company's  sole 
and  exclusive  use,  from  its  main  line  along  a  street  and  across 
a  sidewalk  to  a  warehouse  of  another  corporation  for  the  ac- 
commodation of  the  business  transacted  at  the  warehouse.20 

§  345.  Same  Subject. — It  is  a  proper  exercise  of  the  city's 
authority  to  permit  an  electric  light  company  to  use  the  streets 
for  lighting  purposes,  but  the  public  cannot  be  deprived  of  its 
right  to  have  the  streets  free  from  material  obstructions  to 

Jacksonville  St.  R.  Co.  (Fla.),  10  So.  Texas:     Texarkana  &  Ft.  S.  Ry. 

590,  50  Am.  &  Eng.  R.  Cas.  179.  Co.  v.  Texas  &  N.  O.  R.  Co.  (Tex. 

Illinois:    Chester,  City  of,  v.  Wa-  Civ.  App.),  67  S.  W.  525. 

bash,  C.  &  W.  R.  Co.,  182  111.  382,  55  Wisconsin:  Allen  v.  Clausen,  114 

N.  E.  524.  Wis.  244,  90  N.  W.  181. 

Missouri:    Westport,  City  of,  v.  See  §§48,  132  et  seq.,  185  et  seq., 

Mulholland,  84  Mo.  App.  319.  herein. 

New    York:    Beekman    v.    Third  10  Jersey  City  Gas  Co.  v.  Dwight, 

Ave.  H.  Co.,  153  X.  Y.  144,  47  N.  E.  29  N.  J.  Eq.  242,  quoted  in  Purnell 

277,  aff'g  14  App.  Div.  629,  43  N.  Y.  v.  McLane,  98  Md.  589,  593,  56  Atl. 

Supp.  1 150.  830,  per  Pearce,  J. 

Pennsylvania:      Philadelphia    v.  J0Cereghino  v.  Oregon  Short  Lino 

Empire   Pass.    R.   Co.,    177  Pa.  382,  1M.  Co.,  26  Utah,  467,  99  Am.  St. 

35  Atl.  721;  McHule  v.  Easton  &  B.  Rep.    843.      Examine    Schwede    v. 

Transit  Co.,  169  Pa.  416,  37  W.  N.  C.  Hemrich  Bros.  Brewing  Co.  (Wash.), 

14,  32  Atl.  461.  69  Pac.  362. 

547 


§   345  CONDITIONS    IMPOSED — 

their  necessary  use.21  Though  a  city  may  grant  a  right  of  way 
over  a  batture  it  has  no  power  to  cut  the  public  off  entirely  from 
all  communication  with  a  navigable  stream,  but  it  can  so  con- 
trol and  administer  the  batture  as  to  enable  the  public  to  go 
to  and  return  from  the  navigable  stream,  and  at  the  same  time 
so  regulate  things  as  to  enable  the  grantee  of  the  right  of  way 
to  use  and  enjoy  the  way  granted.22  Where  a  public  service 
corporation  obtains  its  grant  to  construct  a  steam  conduit  in  a 
city  street,  subject  to  the  right  of  the  municipal  authorities  to 
place  other  local  improvements  in  the  street,  even  though  the 
construction  thereof  should  require  it  to  take  additional  pre- 
cautions for  the  protection  of  its  property  in  the  street,  or  sub- 
ject to  greater  expense  in  the  maintenance  of  its  property  in 
changing  the  location  thereof,  its  rights  are  not,  by  reason  of 
its  public  service  nature  and  its  prior  license,  superior  to  those 
acquired  by  the  owner  of  adjacent  property  to  whom  vault 
permits  are  granted.23  But  while  a  city,  so  authorized  by  its 
act  of  incorporation,  has  jurisdiction  over  a  turnpike  road, 
constructed  within  the  limits  of  the  city,  for  the  purpose  of 
regulating,  grading  and  paving  it;  still  it  has  no  right  to  regu- 

21  Aurora  Electric  Light  &  Power  Transit  Co.,    116  Mo.   App.    12,  91 

Co.  v.  McWethy,  104  111.  App.  479,  S.  W.  962;   Burnes  v.  City  of  St.  Jo- 

aff'd  in  McWethy  v.  Aurora  Electric  seph,  91  Mo.  App.  489. 

Light  &  Power  Co.,  202  111.  218,  67  New  York:    Interborough  Rapid 

N.  E.  9.     See  also,  as  to  last  point  in  Transit  Co.   v.  Gallagher,  90  N.  Y. 

text,  the  following  cases:  Supp.  104,  44  Misc.  536. 

United  States:  Baltimore  v.  Bal-  Texas:        Houston     v.     Houston 

timore  Trust  &  Guar.  Co.,  166  U.  S.  City  St.  Rd.  Co.,  83  Tex.  548,  19  S. 

673,  41  L.  ed.  1160,  17  Sup.  Ct.  696;  W.    127,   50   Am.    &    Eng.   R.    Cas. 

Railroad  Co.  v.  Richmond,  96  U.  S.  380. 

521, 24  L.  ed.  734.  Virginia:      Richmond,    City    of, 

Illinois:     People    v.    Harris,    203  v.  Smith  (Va.),  43  S.  E.  345. 

111.  272,  67  N.  E.  785.  See  §§  48,    132  et  seq.,  185  et  seq., 

Indiana:    Town  of    Newcastle  v.  herein. 

Lake  Erie  &  W.  R.  Co.,  155  Ind.  18,  "City  of  Shreveport  v.  St.  Louis 

57  N.  E.  516.  Southwestern  R.  Co.,  115  La.  885,  40 

Iowa:     Bennett  v.   Town  of  Mt.  So.  298. 

Vernon  (Iowa),  100  N.  W.  349.  23  New  York  Steam  Co.  v.  Foun- 

Maryland:    Brauer  v.   Baltimore  dation  Co.,  108  N.  Y.  Supp.  84,  123 

Refrigerating  Co.  (Md.),  58  Atl.  21.  App.     Div.     254,    McLaughlin    and 

Missouri:      Morie    v.     St.     Louis  Houghton,  JJ.,  dissenting. 

548 


GRANT   OF    FRANCHISE  §    346 

late  and  grade  the  street  so  as  to  injure  the  turnpike  company 
or  interfere  with  their  chartered  rights;  for  police  purposes, 
however,  it  has  authority  to  make  such  municipal  regulations 
as  it  may  deem  expedient.24 

§  346.  Implied  Conditions  —  Railroad  Company  —  City 
Streets— New  Streets  and  Crossings — Police  Power. — Where 
a  railroad  has  laid  its  tracks  within  the  limits  of  a  city  it 
is  held  that  it  must  be  deemed  to  have  done  so  and  to  have 
received  its  franchise  subject  to  the  conditions,  not  expressed 
but  necessarily  implied,  that  new  streets  of  the  city  might  be 
established,  opened  and  extended  from  time  to  time  across  its 
tracks  and  right  of  way  as  the  public  convenience  and  neces- 
sity required  and  under  such  restrictions  as  might  be  pre- 
scribed by  statute.25  When  a  city  seeks  by  condemnation 
proceedings  to  open  a  street  across  the  tracks  of  a  railroad 
within  its  corporate  limits,  it  is  not  bound  to  obtain  and  pay 
for  the  fee  in  the  land  over  which  the  street  is  opened,  leaving 
untouched  the  right  of  the  company  to  cross  the  street  with 
its  tracks,  nor  is  it  bound  to  pay  the  expenses  that  will  be  in- 
curred by  the  railroad  company  in  the  way  of  constructing 
gates,  placing  flagmen,  etc.,  caused  by  the  opening  of  the 
street  across  its  tracks.  The  railroad  company  must  be  held, 
as  a  matter  of  law,  to  have  had  in  contemplation  when  its 
charter  was  granted,  and  is  also  bound  to  assume  all  burdens 
incident  to  new  as  well  as  existing  crossings,  and  is  obligated  to 
construct  and  maintain  at  its  own  expense  suitable  crossings 
at  new  streets  and  highways  to  the  same  extent  as  required  by 
common  law  at  streets  and  highways  when  the  railroad  was 
constructed.26  It  is  also  decided  that  the  expenses  thai  will  be 
incurred  by  such  company  in  erecting  gates,  planking  the 
crossing  and  maintaining  flagmen,  in  order  that  its  road  may 

"State    v.    City    of    New    Bruns-  Ry.  Co.,  98  Minn.  380,  398,  108  X. 

Wick,  30  N.  J.  L.  395.  W.   261. 

21  Chicago,    Burlington    &    Quincy        2C  State   v.    St.    Paul,   Minneapolis 

R.  Co.  v.  Chicago,  1G6  U.  S.  226,  41  &  Manitoba  Ry.  Co.,  98  Minn.  380, 

L.  ed.  979,  17  Sup.  Ct.  581;  State  v.  398,  108  N.  W.  261. 
St.    Paul,    Minneapolis    &    Manitoba 

549 


§   347  CONDITIONS   IMPOSED — 

be  safely  operated,  if  all  that  should  be  required,  necessarily 
result  from  the  maintenance  of  a  public  highway,  under  legis- 
lative sanction.  Such  expenses  must  be  regarded  as  incidental 
to  the  exercise  of  the  police  powers  of  the  State  and  must  be 
borne  by  the  company.27  But  it  is  declared  that  "The  au- 
thorities are  not  fully  agreed  upon  the  question  whether  the 
State  may,  in  the  exercise  of  the  police  power,  compel  a  rail- 
road company  without  compensation,  to  construct  and  main- 
tain suitable  crossings  at  streets  extended  over  the  right  of  way 
subsequent  to  the  construction  of  the  railroad.  Our  examin- 
ation of  the  books,  however,  leads  to  the  conclusion  that  the 
great  weight  of  authority  sustains  the  affirmative  of  that 
proposition.  The  right  of  the  State  so  to  act  is  maintained 
in  the  States  of  Maine,  Connecticut,  Illinois,  New  York,  Tennes- 
see, Indiana,  Texas,  Mississippi,  Ohio,  Nebraska,  New  Jersey, 
Vermont,  Wisconsin,  and  by  the  Supreme  Court  of  the  United 
States.  *  *  *  A  contrary  doctrine  may  be  said  to  be  the 
law  in  the  States  of  Kansas,  Louisiana  and  Michigan."  28 

§  347.  Conditions — Payment  of  Expenses  or  Percent- 
age— Arbitration — Submission  to  Electors. — Conditions  may 
be  imposed  requiring  a  railroad  company,  to  which  a  right 
of  location  in  a  borough  has  been  granted,  to  pay  certain  inci- 
dental expenses  of  the  ordinance  conferring  the  privilege  and 
also  a  reasonable  sum  for  counsel  fees.29  A  certain  percentage 
of  receipts  or  earnings  may  also  be  required  to  be  paid  to  a 
municipality  for  the  privilege  or  franchise  right  to  use  the 
public  streets  by  telephone,  street  railroad  or  other  corpo- 
rations.30   And  if  an  electric  company  accepts  a  franchise  sub- 

27  Chicago,  Burlington  &  Quincy  643,  aff'g  62  N.  J.  L.  450,  45  Atl. 
R.  Co.  v.  Chicago,  166  U.  S.  226,  41  L.    1092. 

ed.  979,  17  Sup.  Ct.  581.  30  Lancaster,    City    of,    v.    Briggs 

28  State  v.  St.  Paul,  Minneapolis  &  (Mo.,  1906),  96  S.  W.  314;  California, 
Manitoba  Ry.  Co.,  98  Minn.  380,  398,  City  of,  v.  Bunceton  Teleph.  Co., 
108  N.  W.  261,  per  Brown,  J.,  cit-  112  Mo.  App.  722,  87  S.  W.  604; 
ing  and  considering  numerous  deci-  Carlisle  v.  Cumberland  Valley  Elect, 
sions.  Pass.  R.  Co.,  22  Pa.  Co.  Ct.  221.    See 

29  State,  Hutchinson,  v.  Belmar  Kuhn  v.  Knight,  101  N.  Y.  Supp. 
Borough,  61   N.  J.  L.  443,  39  Atl.  1,  115  App.  Div.  837. 

550 


GRANT    OF    FRANCHISE  §    348 

ject  to  an  agreement  for  the  use  of  its  poles  by  other  corpo- 
rations upon  a  consideration  of  payment  therefor,  coupled  with 
a  condition  for  arbitration,  and,  in  case  of  failure  to  agree,  the 
amount  of  compensation  to  be  determined  by  the  city  elec- 
trician, such  company  is  obligated  thereby.31  So  a  street  rail- 
way franchise  may  be  made  subject  to  a  condition  that  efficient 
provisions  for  the  compulsory  arbitration  of  all  disputes  con- 
cerning any  matter  of  employment  or  wages  between  the  com- 
pany and  its  employees  shall  be  embodied  in  a  grant  of  a  fran- 
chise.32 And  the  legislature  may  require  that  the  grant  of  a 
franchise  for  the  use  of  streets  shall  depend  upon  the  consent 
of  a  majority  of  the  voters  at  a  general  or  special  election.33 
And  a  city  may  reserve  a  right  to  purchase  the  privileges, 
property  or  works  of  a  corporation  upon  conditions  or  at  the 
termination  of  a  certain  period  of  time.34 

§  348.  Conditions — Acceptance. — It  requires  the  accept- 
ance of  the  charter  to  create  a  corporate  body,  for  the  govern- 
ment cannot  compel  persons  to  become  an  incorporated  body 
without  their  consent ; 85  and  such  acceptance  is  necessary  to 
bind  the  stockholders.36    But  in  case  of  a  grant  by  a  city  or 

Percentage,    how    graduated.     Pay-  Consumers'  Gas  Trust  Co.,  144  Fed. 

ment  by  railroad  company  to  State  640;  Stein  v.  McGrath,  128  Ala.  175, 

has   reference  to  time  of  completion  30  So.  792.     Examine  Blair  v.  City 

of  certain  number  of  miles  of  own  of  Chicago,  201  U.  S.  400,  50  L.  ed. 

line.    State  v.  Northern  Pac.  R.  Co.,  801,  26  Sup.  Ct.  427. 

36  Minn.  207,  30  N.  W.  663.  35  Franklin   Bridge   Co.    v.   Young 

3i  Montgomery     Light     &     Water  Wood,  14  Ga.  80, 86,  per  Lumpkin,  J.; 

Co.  v.  Citizens'  Light,  Heat  &  Power  Chicago  Teleph.  Co.  v.  Northwestern 

Co.    (Ala.,  1906),   40   So.   981.     See  Teleph.  Co.,  199  111.  324,  65  N.  E.  329, 

Kuhn  v.  Knight,  101  N.  Y.  Supp.  1,  8  Am.  Elec.  Cas.  81,  aff'g  100  111. 

115  App.  Div.  837.  App.  57;  Quinlan  v.  Houston  &  T.  C. 

32  Wood    v.    City    of    Seattle,    23  R.  Co.,  89  Tex.  356,  34  S.  738. 
Wash  1,62  Pac.  135,52  L.R.  A.  369.  '"Maine:     Lincoln    &    Kennebec 

33  Hanson  v.  Wm.  A.  Hunter  Bank  v.  Richardson,  1  Greenlf. 
Electric  Light  Co.  (Iowa),  48  N.  W.  (1  Me.)  81,  10  Am.  Dec.  34. 

1005,  34  Am.  &  Eng.  Corp.  Cas.  83,  Massachusetts:  Ellis  v.  Marshall, 

10  Ry.  &  Corp.  L.  J.  103.    Question  2  Mass.  269,  3  Am.  Dec.  49. 

also    whether    city    ordinance    was  Kentucky:   Atkinson   v.   Tennill, 

within  the  statute.  14  Ky.  L.  Rep.  922. 

34  See    Indianapolis,    City    of,    v.  Maryland:  State  v.  Baltimore  & 

551 


§    348  CONDITIONS    IMPOSED — 

town  to  a  corporation  to  use  its  streets  the  company  need  not 
be  necessarily  incorporated  and  fully  organized  when  the  or- 
dinance is  originally  presented  for  passage  as  it  may  become 
chartered  at  a  later  date  and  accept  the  ordinance  at  the  time 
of  its  passage,  and  being  then  accepted  and  acted  upon  it  be- 
comes a  contract  between  the  city  and  the  corporation.37  As 
was  said  by  the  court  in  an  early  case  in  Georgia  this  acceptance 
or  "consent,  either  express  or  implied,  is  generally  subsequent 
in  point  of  time  to  the  creation  of  the  charter.  And  yet,  no 
charter,  that  we  are  aware  of,  has  been  adjudged  invalid,  be- 
cause the  law  creating  it  and  previously  defining  its  powers, 
rights,  capacities  and  liabilities,  did  not  take  effect  until  the 
acceptance  of  the  corporate  body,  or  at  least  a  majority  of 
them,  was  signified."  38  If  a  city  grants  a  franchise  to  a  corpo- 
ration for  a  term  authorized  by  law,  and  the  conditions  thereof 
are  accepted,  the  same  constitutes  a  contract  between  the  par- 
ties, the  violation  of  which  is  the  subject  of  litigation  in  an 
ordinary  proceeding.39  And  where,  by  the  terms  of  a  resolution 
of  a  township  board,  a  franchise  is  to  be  absolutely  void  unless 
the  company  accepts  the  same,  such  acceptance  of  the  resolu- 
tion constitutes  an  irrevocable  franchise.40  Conditions  prec- 
edent must  be  strictly  complied  with  before  there  can  be  an 
acceptance;  or,  in  other  words,  acceptance  must  be  strictly  in 
conformity  with  conditions  precedent.41  So  an  acceptance  of  a 
condition  obligates  the  grantee  to  perform  it,  as  in  the  case  of 
the  maintenance  of  a  passageway  in  connection  with  a  bridge 
franchise.42  Where  a  corporation  accepts  the  benefits  of  a 
franchise,  with  knowledge  of  its  termination,  it  cannot  com- 

Ohio  R.  Co.,  12  Gill  &  J.  (Md.)  399,  Wood,    14   Ga.    80,   86,   per   Lump- 

38  Am.  Dec.  319.  kin,  J. 

New   York:     Thomas    v.    Dakin,  39  Cedar  Rapids  Water  Co.  v.  City 

20  Wend.  (N.  Y.)  9.  of  Cedar  Rapids,  118  Iowa,  234,  91 

"Chicago   Teleph.    Co.    v.    North-  N.  W.  1031. 

western  Teleph.  Co.,  199  111.  324,  65  40  Hamtramck,    Township    of,    v. 

N.  E.  329,    8    Am.    Elec.   Cas.   81;  Rapid  Ry.  Co.  (Mich.),  81  N.  W.  337. 

Clarksburg  Electric  Light  Co.  v.  City  41  Lyons  v.  Orange,  A.  &  M.  R.  Co., 

of  Clarksburg,  47  W.  Va.  739,  35  S.  32   Md.    98.      See   also   Atkinson   v. 

E.  994,  50  L.  R.  A.  147.  Tennill,  14  Ky.  L.  Rep.  922. 

38  Franklin    Bridge   Co.    v.    Young  4J  Boston  v.  Crowley,  38  Fed.  602. 

552 


GRANT    OF    FRANCHISE  §    349 

plain,  when  the  grantor  insists  that  the  termination  of  the 
franchise  be  observed,  that  such  termination  may  affect  the 
value  of  its  property.43 

§  349.  Same  Subject. — A  modification  of  an  exemption  in 
a  charter  should  be  accepted  to  be  effectual ; 44  but  a  consent 
to  an  ordinance  modifying  certain  provisions  may  make  a 
subsequent  acceptance  unnecessary.45  If  additional  powers 
are  conferred,  to  take  effect  from  the  passage  of  a  statute 
granting  them  they  should  be  duly  accepted  and  conditions 
necessary  to  give  the  statute  effect  should  be  complied  with.46 
Grants  of  new  franchises  should  be  accepted  to  be  operative.47 
But,  although,  in  case  of  a  statute  authorizing  consolidation 
of  certain  companies,  there  has  been  no  acceptance  in  the  form 
or  manner  required,  still  a  corporation  cannot  for  that  reason 
be  held  a  trespasser  on  public  lands  under  a  land  grant.48  If  a 
county  subscription  is  granted  on  terms  and  conditions  and  it  is 
accepted;  such  acceptance  is  burdened  with  such  terms  and 
conditions  and  the  company  will  be  estopped  from  asserting 
that  they  are  unreasonable  or  void.49  Nor  can  a  street  railroad 
company  accept  a  franchise  and  thereafter  set  up  formalities 
as  to  the  publication  of  the  ordinance  in  order  to  relieve  itself 
of  its  obligations.50  A  charter  created  by  special  act,  but  not 
accepted  before  a  new  constitution  prohibiting  creation  of 
corporations  by  special  act,  confers  no  rights  as  against  the 
prohibition.51     Again,  where  a  city  attempts  by  ordinance  to 

43  Cedar  Rapids  Water  Co.  v.  City  48  State  v.  New  Orleans,  C.  &  L.  R. 
of  Cedar  Rapids,  118  Iowa,  234,  91  N.    Co.,  104  La.  685,  29  So.  312. 

W.  1031.  49West   Virginia   &   P.   R.   Co.   v. 

44  Stevens  County  v.  St.  Paul,  M.  Harrison  County  Court  (W.  Va.), 
&  M.  R.  Co.,  36  Minn.  467,  31  N.  W.  34  S.  E.  786.  See  also  Topping  Ave- 
942.  nue,  In  re,  187  Mo.  146,  86  S.  W.  190. 

45  City  R.  Co.  v.  Citizens'  St.  R.  50  Hattersley  v.  Village  of  Water- 
Co.,  166  U.  S.  557,  41  L.  ed.  1114,  17  ville,  26  Ohio  Cir.  Ct.  R.  226. 

Sup.  Ct.  653.  ''State   v.    Dawson,    16   Ind.     10; 

«  Hartford   &  C.   W.   R.   Co.   v.  Gillespie  v.  Fort  Wayne  &  S.  R.  Co., 

Wagner,  73  Conn.  506,  48  Atl.  218.  17  Ind.  443.    Compare  Atlanta,  City 

47  Lyons  v.  Orange,  A.   &  M.   It.  of,  v.  Gate  City  Gaslight  Co.,  71  Ga. 

Co.,  32  Md.  98.  106. 

553 


§   350  CONDITIONS   IMPOSED — 

confer  upon  a  corporation  a  right  which  it  has  no  power  to 
grant,  the  acceptance  and  use  by  the  corporation  of  the  privi- 
leges attempted  to  be  conferred  will  not  constitute  a  color  of 
right  which  the  city  may  not  deny  in  an  ordinary  action;  nor 
will  the  acceptance  by  the  corporation  of  such  privileges  so 
illegally  granted  constitute  a  waiver  by  the  city  of  its  rights.52 
Corporations  may  by  an  express  or  implied  acceptance  of  cura- 
tive statutes  become  de  jure  corporations  possessed  of  all  the 
powers  granted  under  their  charters.53  Formal  acceptance  may 
not  be  necessary  under  an  offer,  by  statute,  to  any  person  to 
organize  a  railroad  company  under  the  authority  of  named 
commissioners;  there  must,  however,  in  such  case  be  an  organi- 
zation.54 

§  350.  Same  Subject — Implied  Acceptance — Presumption 
— Evidence. — Where  express  acceptance  is  not  required  it 
may  be  implied  from  acts  showing  the  intent  to  accept,  as  in 
case  of  organizing  and  exercising  the  franchise,55  or  corporate 
rights,  development  of  the  corporate  property,  election  annu- 
ally of  directors,  issuing  stock,  etc.,56  and,  generally,  accept- 
ance may  be  evidenced  by  acts  of  the  stockholders  or  officers.57 
While  formal  acceptance  need  not  appear  from  the  records  of 

62  Cedar  Rapids  Water  Co.  v.  City  New  York:   Williams  v.  Bank,  7 

of  Cedar  Rapids,  118  Iowa,  234,  91  Wend.  (N.  Y.)  540. 

N.  W.  1031.  North  Carolina:  Benbow  v.  Cook, 

53  Brown  v.  Atlanta  Ry.  &  Power  115  N.  C.  324,  22  S.  E.  453,  44  Am. 

Co.,  113  Ga.  462,  39  S.  E.  71.  St.  Rep.  454. 

54Quinlan  v.  Houston  &  T.  C.  C.  Texas:  Quinlan  v.  Houston  &  T. 

R.  Co.,  89  Tex.  356,  34  S.  W.  738.  C.  R.  Co.,  89  Tex.   356,  34  S.    W. 

55  Logan  v.  McAllister,  2  Del.  Ch.  758. 

176;     Middlesex     Husbandmen     v.  Vermont:    Scarsburgh    Turnpike 

Davis,  3  Mete.  (44  Mass.)  133.  Co.  v.  Cutler,  6  Vt.  315. 

56  Glymont  Improv.  &  Excursion  Wisconsin:  Heath  v.  Silverthorn 
Co.,  80  Md.  278,  30  Atl.  651.  Lead  Min.  &  Smelting  Co.,  39  Wis. 

57  Connecticut:    Danbury  &  Nor-  146. 

walk  R.  Co.  v.  Wilson,  22  Conn.  435.  See  United  States  Bank  v.  Dan- 
Indiana:      State    v.    Dawson,   22  bridge,  12  Wheat.  (25  U.  S.)  64,  6  L. 
Ind.  272.  ed.  552. 

Massachusetts:  Blandford  Third  Acceptance  when  presumed.  See 
School  Dist.  v.  Gibbs,  2  Cush.  (56  Attorney  Genl.  v.  Chicago  &  North- 
Mass.)  39.  western  Rd.  Co.,  35  Wis.  425. 

554 


GRANT  OF   FRANCHISE  §   350 

the  corporation,58  still  where  a  corporation  is  organized  under 
a  general  law  providing  for  signing,  acknowledging  and  record- 
ing a  certificate  the  acceptance  is  proved  by  the  recording 
thereof.59  But  an  agreement  by  a  street  railway  company 
to  hold  a  city  harmless  from  damages  occasioned  from  non- 
compliance with  the  terms  of  an  ordinance  requiring  vigilance 
from  conductors  and  motormen  and  the  stopping  of  cars  quickly 
to  avoid  injury  to  pedestrians  does  not  evidence  an  acceptance 
of  the  terms  and  conditions  of  such  ordinance,  as  the  city  would 
not  be  responsible  for  the  company's  neglect  to  comply  with 
the  ordinance.60  Nor  is  a  toll  road  franchise  between  certain 
points  accepted  by  entering  upon  and  into  the  possession  of  a 
highway  between  such  points  which  the  taxpayers  have  con- 
structed.61 In  an  early  case  in  Alabama  the  court  says:  "It  is 
pressed  upon  the  court,  that  to  constitute  a  corporation,  under 
said  acts,  it  was  necessary  that  the  identical  persons  named  in 
said  acts,  or  a  majority  of  them,  should  have  accepted  the 
provisions  of  said  acts;  opened  books  for  subscription  to  the 
capital  stock  of  said  companies;  obtained  the  subscriptions 
of  stock  required  and  organized,  by  electing  directors  and  a 
president,  as  required  by  said  acts.  But,  we  hold  that  these 
acts,  by  their  own  vigor,  made  the  persons  named  in  each  a 
body  politic  and  corporate.  After  naming  the  persons,  each 
act  declares  that  they,  '  and  such  others  as  may  hereafter  be- 
come associated  with  them  for  that  purpose  and  their  succes- 
sors, are  hereby  declared  and  created  a  body  politic  and  corpo- 
rate.' They  therefore  become  corporations  immediately  on 
the  passage  of  said  acts;  but  to  exercise  the  privileges,  it  was 
necessary  for  them  to  organize  by  obtaining  stock,  etc.,  and 
electing  a  board  of  directors  and  a  president.  These  acts  are 
altogether  unlike  acts  that  authorize  persons  to  become  a  cor- 
poration, by  doing  certain  things;  in  such  cases,  the  things  to 
be  done  are  conditions  that  must  be  complied  with  before  they 

58Trott   v.    Warren,   2    Fairf.    (11  M  Murphy    v.     Lindell     Ry.     Co. 

Me.)  227.  (Mo.),  54  S.  W.  442. 

59  Glymont   Improv.    &   Excursion  "'  Welsh    v.    Plumas    County,    94 

Co.  v.  Toller,  80  Md.  278,  30  Atl.  651 ,  Cal.  368,  29  Pac.  720. 

555 


§   351  CONDITIONS   IMPOSED — 

can  become  a  body  corporate.  As  a  general  proposition,  it  is 
true  that  the  charter  of  a  corporation  must  be  accepted,  but  in 
cases  of  private  corporations,  like  these  under  consideration, 
created  for  individual  benefit,  the  presumption  is,  that  they 
are  created  at  the  instance  and  on  the  request  of  the  parties 
to  be  benefited  thereby,  and,  consequently,  are  accepted  by 
them.  If,  therefore,  they  are  found  exercising  the  privileges 
granted  it  will  be  almost  conclusive  evidence  of  the  fact  of 
acceptance.  This  view  disposes  of  the  fifth  and  sixth  charges 
asked  by  the  defendant  and  denied  by  the  court."  62 

§  351.  Foreign  Corporation — Situs  of — Interstate  Comity. 

— A  corporation  can  have  no  legal  existence  out  of  the  sov- 
ereignty by  which  it  is  created,  as  it  exists  only  in  contempla- 
tion of  law,  and  by  force  of  the  law,  and  when  that  law  ceases 
to  operate,  and  is  no  longer  obligatory,  the  corporation  can 
have  no  existence.  It  must  dwell  in  the  place  of  its  creation,63 
and  cannot  migrate  to  another  sovereignty;  but  although  it 
must  live  and  have  its  being  in  that  State  only,  yet  it  does  not 
follow  that  its  existence  there  will  not  be  recognized  in  other 
places;  and  its  residence  in  one  State  creates  no  insuperable 
objection  to  its  power  of  contracting  in  another.  The  corpo- 
ration must  show  that  the  law  of  its  creation  gave  it  authority 
to  make  such  contracts;  yet  as  in  the  case  of  a  natural  person, 
it  is  not  necessary  that  it  should  actually  exist  in  the  sover- 
eignty in  which  the  contract  is  made;  it  is  sufficient,  that  its 
existence  as  an  artificial  person,  in  the  State  of  its  creation, 
is  acknowledged  and  recognized  by  the  State  or  Nation  where 
the  dealing  takes  place,  and  that  it  is  permitted  by  the  laws 
of  that  place  to  exercise  the  powers  with  which  it  is  endowed. 
Every  power,  however,  which  a  corporation  exercises  in  an- 
other State,  depends  for  its  validity  upon  the  laws  of  the  sov- 
ereignty in  which  it  is  exercised;  a  corporation  can  make  no 
valid  contract,  without  the  sanction,  express  or  implied,  of 

62  Talladega  Ins.   Co.   v.  Landers,    1  Black  (66  U.  S.),  286,  17  L.  ed.  130; 
43  Ala.  115,  136,  per  Peck,  C.  J.  Runyan  v.  Coster,  14  Pet.  (39  U.  S.) 

63  Ohio  &  Miss.  Rd.  Co.  v.  Wheeler,    122,  10  L.  ed.  382. 

556 


GRANT   OF    FRANCHISE  §    352 

such  sovereignty  unless  a  case  should  be  presented  in  which 
the  right  claimed  by  the  corporation  appears  to  be  secured 
by  the  Constitution  of  the  United  States.64  By  the  general 
comity,  however,  which,  in  the  absence  of  positive  direction  to 
the  contrary,  obtains  through  the  States  and  Territories  of  the 
United  States,  corporations  created  in  one  State  or  Territory 
are  permitted  to  carry  on  lawful  business  in  another,  and  to 
acquire,  hold,  and  transfer  property  there  equally  as  indi- 
viduals.65 If  foreign  corporations  have,  as  a  matter  of  comity, 
been  permitted  to  enter  a  State,  or  a  Territory  which  after- 
wards becomes  a  State,  without  restriction,  they  have  no  vested 
right  to  remain  there  unlicensed,  and  must  secure  an  express 
exemption,  or  exemption  by  implication  equally  clear  with  ex- 
press words,  or  they  will  be  subject  to  all  subsequent  regu- 
lations which  the  State  may  see  fit  to  adopt  in  the  exercise  of 
its  police  power.66 

§  352.  Power  of  State  to  Impose  Conditions  Upon  Foreign 
Corporations. — Since  a  corporation  created  by  one  State  can 
transact  business  in  another  State  only  with  the  consent  of  the 
latter,  such  latter  State  may  accompany  its  consent  with  such 
conditions  as  it  thinks  proper  to  impose,  provided  that  they  are 
not  repugnant  to  the  Constitution  and  laws  of  the  United 
States,  or  inconsistent  either  with  those  rules  of  public  law 
which  secure  the  jurisdiction  and  authority  of  each  State  from 
encroachment  by  all  others,  or  those  principles  of  natural 
justice  which  forbid  condemnation  without  opportunity  for 
defense.67    These  limitations  upon  the  power  of  the  State  to 

"  Runyan  v.  Coster,  14  Pet.  (39  U.  Co.,  191  U.  S.  288,  24  Sup.  Ct.  74,  48 

S.)    122,    10   L.   ed.    382.      See   also  L.  ed.  188;  Waters-Pierce  Oil  Co.  v. 

Christian  Union  v.  Yount,  101  U.  S.  Texas,  177  U.  S.  28,  20  Sup.  Ct.  518, 

352,  25  L.  ed.  888;  State  v.  Topeka  44  L.  ed.  657;  New  York  v.  Roberts, 

Water  Co.,    61    Kan.    547,  60  Pac.  171  U.  S.  658,  43  L.  ed.  345,  19  Sup. 

337.  Ct.    235;    Horn    Silver   Min.    Co.    v. 

85  Cowell  v.  Springs  Co.,  100  U.  S.  New  York,  143  U.  S.  305,  36  L.  ed. 

55,  25  L.  ed.  547.  164,  12  Sup.  Ct.  403,  11  Ry.  &  Corp. 

"State  v.  Western  Union  Teleg.  L.    J.    182;    Doyle    v.    Continental 

Co.  (Kan.,  1907),  90  Pac.  299.  Ins.  Co.,  94  U.  S.  535,  24  L.  ed.  148; 

,7  Cable  v.  United  States  Life  Ins.  State,  Hadley,  v.  Standard  Oil  Co., 

557 


§   352  CONDITIONS   IMPOSED — 

impose  conditions  also  prohibit  an  interference  with  interstate 
or  foreign  commerce  or  other  governmental  functions  of  the 
Federal  government.68  But  it  is  held  that  the  only  limitation 
upon  the  power  of  a  State  to  exclude  a  foreign  corporation 
from  doing  business  within  its  limits,  or  hiring  offices  for  that 
purpose,  or  to  exact  conditions  for  allowing  the  corporation  to 
do  business  or  hire  offices  there,  arises  where  the  corporation 
is  in  the  employ  of  the  Federal  government,  or  where  its  busi- 
ness is  strictly  commerce,  interstate  or  foreign.69  The  State 
may,  however,  within  the  above  limitations,  not  only  prescribe 
the  terms  and  conditions  upon  which  foreign  corporations  may 
enter  its  limits,  but  may  also  prohibit  them  from  doing  business 
therein.70  Again,  the  provisions  in  the  Fourteenth  Amend- 
ment to  the  Federal  Constitution,  that  no  State  shall  deny  to 
any  person  within  its  jurisdiction  the  equal  protection  of  the 
laws,  do  not  prohibit  a  State  from  requiring,  for  the  admission 
within  its  limits  of  a  corporation  of  another  State,  such  con- 
ditions as  it  chooses.71  But  while  a  State  may  impose  these 
terms  there  should  not  be  an  unjust  discrimination  against 

194  Mo.   124,  91   S.  W.   1062.     See  68  New  York  v.  Roberts,  171  U.  S. 

§  13,  herein.  658,  19  Sup.  Ct.  235,  43  L.  ed.  345; 

If  a  corporation  does  business  in  State,  Hadley,  v.  Standard  Oil  Co., 

a  State  it  must  do  so  subject  to  such  194  Mo.  124,  91  S.  W.  1062. 

valid  regulations  as  the  State  may  69  Pembina,  C.  S.  M.  &  M.  Co.  v. 

adopt,  and  it  may  adopt  such  policy  Pennsylvania,  125  U.  S.  181,  8  Sup. 

as  it  thinks  best,  provided  it  does  Ct.  737,  31  L.  ed.  650. 

not  in  so  doing  come   into   conflict  ,0  Swing  v.  Western   Lumber  Co., 

with  the  Federal  Constitution,  and,  205   U.  S.  275,  51  L.  ed.  — ,  27  Sup. 

if  constitutional,  the  legislative  will  Ct.  — ,  aff'g  140  Mich.  344;   Security 

must  be  respected  even  though  the  Mutual  Life  Ins.  Co.  v.  Prewitt,  Ins. 

courts  be  of  opinion  that  the  statute  Comr.,  202  U.  S.  246,  50  L.  ed.  1013, 

is   unwise.    Whitfield   v.  .Etna   Life  26  Sup.   Ct.   619;  Waters-Pierce  Oil 

Ins.  Co.    of  Hartford,  205  U.  S.  489,  Co.  v.  Texas,  177  U.  S.  28,  20  Sup. 

applied  to  an  insurance  company.  Ct.  518,  44  L.  ed.  657,  aff'g  19  Tex. 

It  is  well  settled  that  a  State  has  Civ.  App.  1,  44  S.  W.  936;  Doyle  v. 

the  power  to  impose  such  conditions  Continental  Ins.  Co.,  94  U.  S.  535, 

as  it  pleases  upon  foreign   corpora-  24  L.  ed.  148. 

tions  seeking  to  do  business  within  it.  "Pembina,  C.  S.  M.  &  M.  Co.  v. 

Waters-Pierce  Oil  Co.  v.  Texas,  177  U.  Pennsylvania,  125  U.  S.  181,  31  L. 

S.  28,  44  L.  ed.  657,  20  Sup.Ct.  518,  ed.  650,  8  Sup.  Ct.  737. 
aff'g  19  Tex.  Civ.  App,  1 ,  44  S.W.  936. 

553 


GRANT   OF   FRANCHISE  §   353 

foreign  corporations ; 72  and  the  validity  of  the  contracts  of 
such  a  corporation,  made  with  its  citizens,  must  be  governed 
by  like  rules  with  those  which  apply  to  the  same  contracts  be- 
tween domestic  corporations  and  the  citizens  of  such  State.73 
And  foreign  corporations  who  have  accepted  or  complied  with 
the  prescribed  conditions  under  the  statutes  are  within  the 
same  rules  as  apply  to  domestic  corporations  under  other  sec- 
tions of  the  code  relating  to  the  occupancy  of  the  public  roads 
by  telephone  companies.74 

§353.  Same  Subject — Instances — Certificate — Designa- 
tion of  Corporate  Agent,  etc. — Service  of  Process. — For- 
eign corporations  may,  as  conditions  to  doing  business  in  a 
State,  be  required  to  file  certificates;75  instruments  designating 
an  agent  and  place  of  business ; 76  stipulations  for  the  service 

72  Mutual  Fire  Ins.  Co.  v.  Ham-  Federal  courts  sitting  in  the  State  of 
mond  (Ky.),  51  S.  W.  151.  Arkansas,  brought  by  a  citizen  of  the 

73  Security  Savings  &  Loan  Assoc.  State  of  its  origin.  St.  Louis  &  S.  F. 
v.  Elbert  (Ind.,  1899),  54  N.  E.  753.  Ry.  Co.  v.  James,  161  U.  S.  545,  40 

74  State  v.  City  of  Red  Lodge,  30  L.  ed.  802,  16  Sup.  Ct.  621,  cited  in 
Mont.  388,  76  Pac.  758.  Louisville,  N.  A.   &  C.   Ry.  Co.   v. 

75  Goodwin  v.  Colorado  Mortgage  Louisville  Trust  Co.,  174  U.  S.  552, 
Co.,  110  U.  S.  1,  28  L.  ed.  47;  Key-  576,  43  L.  ed.  1081,  19  Sup.  Ct.  — ; 
stone  Driller  Co.  v.  Superior  Court,  St.  Joseph  &  Grand  Island  Rd.  Co. 
138  Cal.  738,  72  Pac.  198.  v.  Steele,  167  U.  S.  659,  664,  42  L. 

Railroad  corporation — Filing  cer-  ed.  315,  17  Sup.  Ct.  925;  Louisville 
tificate  —  Citizenship  —  Jurisdiction.  Trust  Co.  v.  Louisville,  N.  A.  &  C.  R. 
The  provision  in  the  Arkansas  stat-  Co.,  75  Fed.  440. 
utes  of  March  13,  1889,  that  a  rail-  n  Chattanooga  Nat.  B.  &  L. 
road  corporation  of  another  State  Assn.  v.  Denson,  189  U.  S.  408,  47  L. 
which  had  leased  or  purchased  a  rail-  ed.  870,  23  Sup.  Ct.  630.  In  this  case 
road  in  Arkansas  and  filed  with  the  it  appeared  that  the  highest  court 
Secretary  of  State  of  that  State,  as  of  Alabama  had  decided  that  under 
provided  by  the  act,  a  certified  the  constitutional  and  statutory  pro- 
copy  of  the  articles  of  incorpora-  visions  of  that  State  any  act  in  the 
tion,  should  become  a  corporation  of  exercise  of  its  corporate  functions 
Arkansas,  does  not  avail  to  create  was  forbidden  to  a  foreign  corpora- 
an  Arkansas  corporation  out  of  a  tion  which  had  not  complied  with 
foreign  corporation  complying  with  the  constitution  and  statute  in  rei^ml 
those  provisions  in  such  a  sense  as  to  to  filing  an  instrument  designating 
make  it  a  citizen  of  Arkansas  within  agent  and  place  of  business,  and  that 
the  meaning  of  the  Federal  Consti-  contracts  resulting  from  such  acts 
tution,  and  subject  it  to  a  suit  in  the  were  illegal  and  could  not  be  enforced 

559 


§    353  CONDITIONS    IMPOSED — 

of  process;77  and  to  comply  with  a  condition  that  service  of 
process  upon  the  agent  of  such  corporation  shall  be  considered 
as  service  upon  the  corporation  itself;  and,  it  is  held,  that  when 
the  company  sends  its  agent  into  the  State  it  must  be  pre- 
sumed to  have  assented  to  the  condition.78  But  it  is  pertinent 
in  this  connection  to  state  that  foreign  corporations  can  be 
served  with  process  in  a  State  only  when  doing  business  therein, 
and  such  service  must  be  upon  an  agent  who  represents  the 
corporation  in  such  business.79  And  while  in  case  of  diverse 
citizenship  a  suit  may  be  brought  in  the  Circuit  Court  for  the 
district  of  the  residence  of  either  party,  there  must  be  service 
within  the  district;  and  if  the  defendant  is  a  non-resident  corpo- 
ration, service  can  only  be  made  upon  it  if  it  is  doing  business  in 
that  district  in  such  a  manner,  and  to  such  an  extent,  as  to 
warrant  the  inference  that  it  is  present  there  through  its 
agent;  and  a  railroad  company  which  has  no  tracks  within  the 
district  is  not  doing  business  therein  in  the  sense  that  liability 

in  the  courts.    It  was  held  that  this  the  business  shall  be  carried  on  in  the 

applied  to  a  building  and  loan  asso-  State  of  Colorado  shall  be  at  Denver, 

ciation  of  Tennessee  making  a  loan  in  the  county  of  Arapahoe,  in  said 

in    Tennessee    secured    by    certain  State,  and  that  the  general  manager 

shares  of  its  own  stock  and  also  by  of  said  corporation,  residing  at  the 

mortgage  on  certain  real  estate  in  said  principal   place  of  business,  is 

Alabama,    and    that    although    the  the  agent  upon  whom  process  may 

association  had  complied  with  cer-  be  served  in  all  suits  that  may  be 

tain  provisions  of  the  law,  the  fact  commenced     against    said     corpora- 

that  it  had  not  designated  an  agent  tion,"  is  a  sufficient  compliance  with 

as  required  by  the  constitution  and  the  requirements  of  the  constitution 

statutes  was  a  bar  to  the  foreclosure  and  laws  of  Colorado  in  that  respect, 

of   the    mortgage    in    the    courts    of  Goodwin  v.  Colorado  Mortgage  Co., 

Alabama,  cited  in  National  Mut.  B.  110  U.  S.  1,  28  L.  ed.  47. 
&  L.  Assn.  v.  Brahan,  193  U.  S.  635,        "  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v. 

650,  48  L.  ed.  823,  24  Sup.  Ct.  532.  Commercial  Union  Ins.  Co.,  139  U. 

What  is  sufficient  compliance  as  to  S.  223,  35  L.  ed.  154,  11  Sup.  Ct.  554. 
certificate.     A  certificate  signed  and       78  Lafayette    Ins.    Co.    v.    French, 

acknowledged  by  the  president  and  18  How.   (59  U.  S.)  404,  15  L.  ed. 

secretary   of   a   foreign    corporation,  451. 

and  filed  with  the  Secretary  of  State       79  Peterson  v.  Chicago,  Rock  Island 

and  in  the  office  of  the  recorder  of  &  Pacific  Ry.  Co.,  205  U.  S.  364,  51 

deeds  for  the  county  in  which  it  is  L.  ed.  841,  27  Sup.  Ct.  513.     See  next 

proposed  to  carry  on  business,  stat-  following  citation  of  this  case  under 

ing  that,  "the  principal  place  where  this  section. 

560 


GRANT   OF    FRANCHISE  §    354 

for  service  is  incurred  because  it  hires  an  office  and  employs  an 
agent  for  the  merely  incidental  business  of  solicitation  of  freight 
and  passenger  traffic.80  Nor  is  a  railroad  company  doing  busi- 
ness in  a  State  simply  because  another  railroad  company,  of 
which  it  owns  practically  the  entire  capital  stock,  does  do  busi- 
ness therein,  nor  is  the  latter  company  or  its  officers  and  em- 
ployees agents  of  the  former  company  for  the  purpose  of  service 
of  process  even  though  such  agents  may  at  times  also  represent 
that  company  as  to  business  done  in  other  States.  There  is  no 
partnership  liability  under  such  circumstances  by  which  the 
company  owning  or  controlling  the  capital  stock  of  the  other 
can  be  brought  into  court  to  respond  for  a  tort  by  serving  the 
latter  company  with  process.81 

§  354.  Same    Subject — Instances    Continued — Interstate 
Commerce — Insurance,  Railroad  and  Other  Corporations. — 

If  a  corporation  of  one  State  enters  into  a  contract  with  a  citizen 
of  another  State  concerning  a  transaction  which  is  interstate 
commerce,  such  act  does  not  constitute  a  carrying  on  of  business 
in  the  State  where  the  contract  work  is  to  be  completed  so  as  to 
necessitate  the  performance  by  the  foreign  corporation  of  con- 
ditions precedent,  such  as  registering  its  charter  before  doing 
business  in  the  State.82  But  that  section  of  the  penal  code  of 
California 83  which  makes  it  a  misdemeanor  for  a  person  in  that 

80  Green  v.  Chicago,  Burlington  &  agents  served  with  process  in  that 
Quincy  Ry.  Co.,  205  U.  S.  530,  51  L.  State  duly  authorized  as  such  and 
ed.916,27Sup.Ct.  594,  afT'g  147  Fed.  competent  to  be  thus  served?  The 
767.     See  next  following  note  herein,  point  as  to  partnership  as  noted  in 

81  Peterson  v.  Chicago,  Rock  Island  the  text  was  also  decided.  Sayles, 
&  Pac.  Ry.  Co.,  205  U.  S.  364,  51  L.  Civ.  Stat.,  art.  1194,  §  25,  and  art, 
ed.  841,  27  Sup.  Ct.  513.  Neither  in  1223,  also  the  act  of  March  13,  1905, 
this  case  nor  in  the  Green  case  cited  Gen.  Laws  Tex.,  1905,  p.  30,  §§  2,  5, 
under  the  last  preceding  note,  was  were  the  statutes  considered.  In  the 
the  question  of  the  right  to  impose  Green  case  the  question  was  whether 
conditions  before  the  court.  In  the  the  service  upon  the  agent  was  suffi- 
Peterson  case  the  question  of  juris-  cient,  as  set  forth  in  the  above  text. 
diction  rested  upon  fact,  divided  into  82  Davis  v.  Rankin  Bldg.  &  Mfg. 
two  propositions  viz.:  1.  Was  the  rail-  Co.  v.  Caigle  (Tenn.  Ch.  App.,  1899), 
road  company  doing  business  in  the  53  S.  W.  240. 

State  of  Texas?    2.   Were  the  alleged        "  §  439. 

36  561 


§   354  CONDITIONS   IMPOSED — 

State  to  procure  insurance  for  a  resident  in  the  State  from  an 
insurance  company  not  incorporated  under  its  laws  and  which 
had  not  filed  the  bond  required  by  the  laws  of  the  State  relative 
to  insurance,  is  not  a  regulation  of  commerce,  and  does  not  con- 
flict with  the  Constitution  of  the  United  States,  when  enforced 
against  the  agent  of  a  New  York  firm  in  California  who,  through 
his  principals,  procured  for  a  resident  in  California  applying 
for  it  there,  marine  insurance  on  an  ocean  steamer,  from  an  in- 
surance company  incorporated  under  the  laws  of  Massachusetts, 
and  which  had  not  filed  the  bond  required  by  the  laws  of  Cali- 
fornia.84 The  State  may  require  that  life  insurance  companies 
shall  pay  losses  within  a  certain  time,  and  the  requirement  may 
be  validly  applied  to  foreign  corporations  under  the  legislative 
power  to  prescribe  conditions  upon  which  such  foreign  com- 
panies may  transact  business  wthin  the  State.85  Where  a  state 
Supreme  Court  held  that  a  foreign  mutual  insurance  company, 
which  had  not  been  authorized  to  carry  on  business  in  such 
State  as  provided  by  its  statutes,  could  not  maintain  a  suit  to 
collect  assessments  due  on  a  policy  issued  by  one  of  its  agents  in 
another  State  on  request  of  an  insurance  broker  of  the  State 
rendering  the  decision,  who  was  unable  to  place  the  whole  line 
in  his  own  authorized  companies,  it  was  held  that  such  State 
could  prohibit  foreign  insurance  companies  from  doing  business 
within  its  limits  or  allow  them  to  carry  on  business  under  such 
conditions  as  it  might  choose  to  prescribe;  and  that  the  state 
court. having  decided,  as  above  stated,  no  Federal  question  was 
involved,  and  a  request  to  find  that  the  state  statute  could  not 
prevent  the  insured  from  going  without  the  State  and  obtaining 
insurance  on  property  within  the  State  did  not  raise  a  Federal 
question  where  the  fact  was  otherwise;  and  the  writ  of  error 
was  dismissed.86     If  a  state  statute  requires  insurance  com- 

84  Hooper  v.  California,  155  U.  S.  Louisiana,   165   U.   S.   578,  583,   17 

G48,  39  L.  ed.  297,  15  Sup.  Ct.  207,  Sup.  Ct.  427,  41  L.  ed.  832;  Noble  v. 

cited    in    Waters-Pierce    Oil    Co.    v.  Mitchell,  164  U.  S.  367,  370,  17  Sup. 

Texas,  177  U.  S.  28,  46,  44  L.  ed.  657,  Ct.  110,  41  L.  ed.  472. 

20  Sup.  Ct.  518;  Hopkins  v.  United  85  Merchants' Life  Assoc,  of  U.  S.  v. 

States,  171  U.  S.  578,  602,  19  Sup.  Yoakum  (C.  C.  A.),  98  Fed.  251. 

Ct.  40,  43   L.  ed.   290;   Allgeyer  v.  86  Swing  v.   Weston  Lumber  Co., 

562 


GRANT    OF    FRANCHISE  §   355 

panies  to  make  full  and  specified  returns  to  the  proper  state 
officers  of  their  business  condition,  liabilities,  losses,  premiums, 
taxes,  dividends,  expenses,  etc.,  such  enactment  is  an  exercise 
of  the  police  power  of  the  State,  and  may  be  enforced  against 
a  company  organized  under  a  special  charter  from  the  state 
legislature,  which  does  not  in  terms  require  it  to  make  such  re- 
turn, without  thereby  depriving  it  of  any  of  its  rights  under  the 
Federal  Constitution.87  Foreign  railroad  corporations  may  be 
required  by  statute  to  become  resident  corporations  as  a  con- 
dition to  the  operation  of  a  part  of  its  road  within  a  State,  and 
such  requirement  does  not  deny  the  equal  protection  of  the 
laws.88  A  foreign  railroad,  insurance  or  other  corporation  can- 
not be  unjustly  discriminated  against  as  to  the  right  of  appeal, 
as  where  a  certain  per  cent  damages  are  by  statute  to  be  added 
to  money  judgments  against  corporations  created  in  other 
States  whether  the  appeal  be  affirmed  or  dismissed.89 

§  355.  Power  of  State  to  Impose  Conditions  Upon  For- 
eign Corporations — Agreement  not  to  Remove  Suit  to 
Federal  Court— Waiver  of  Right.— A  statute  is  repugnant  to 
the  Federal  Constitution  and  the  laws  in  pursuance  thereof 
and  is  illegal  and  void  where  it  provides:  "That  any  fire  insur- 
ance company,  association,  or  partnership,  incorporated  by 
or  organized  under  the  laws  of  any  other  State  of  the  United 
States,  desiring  to  transact  any  such  business  as  aforesaid  by 
any  agent  or  agents,  in  this  State,  shall  first  appoint  an  at- 
torney in  this  State  on  whom  process  of  law  can  be  served,  con- 
taining an  agreement  that  such  company  will  not  remove  the 

205  U.  S.  275,  51  L.  ed.  — ,  27  Sup.        88  Commonwealth  v.  Mobile  &  O. 

Ct.  — ,  aff'g   140  Mich.  344,  citing  R.  Co.,  23  Ky.  L.  Rep.  784,  64  S.  W. 

Chicago,    Indianapolis    &    Louisville  451,  54  L.  R.  A.  916. 
Ry.  Co.  v.  McGuire,  196  U.  S.  128,       ■  Mutual    Fire  Ins.   Co.   v.   Ham- 

132,  49  L.  ed.  413,  25  Sup.  Ct.  200;  mond  (Ky.),  51  S.  W.  151.    See  also 

Allen  v.  Allegheny  County,  196  U.  S.  Blake  v.  McClung,  172  U.  S.  239,  43 

458,  49  L.  ed.  551,  25  Sup.  Ct.  311,  L.  ed.  486, 19  Sup.  Ct.  226.    Examine 

to  last  point.  §§  299,  300,  herein. 

87  Eagle  Ins.  Co.  v.  Ohio,  153  U.  S. 
446,  38  L.   ed.  773,  14  Sup.  Ct,  — . 

563 


§  355  CONDITIONS   IMPOSED — 

suit  for  trial  into  the  United  States  Circuit  Court,  or  Federal 
courts,  and  file  in  the  office  of  the  Secretary  of  State  a  written 
instrument,  duly  signed  and  sealed,  certifying  such  appoint- 
ment, which  shall  continue  until  another  attorney  be  sub- 
stituted." The  agreement  filed  by  the  insurance  company  in 
pursuance  of  such  enactment  derives  no  support  from  a  statute 
thus  unconstitutional  and  is  as  void  as  it  would  be  had  the 
statute  not  been  passed.  The  statute  obstructs  the  absolute 
right,  which  the  Constitution  of  the  United  States  secures  to 
citizens  of  another  State  than  that  in  which  the  suit  is  brought, 
to  remove  their  cases  into  the  Federal  court  under  the  pro- 
visions of  the  Judiciary  Act.90  The  doctrine  of  this  case  was 
reaffirmed  under  a  decision  holding  that  an  agreement  to  ab- 
stain in  all  cases  from  resorting  to  the  Federal  courts  was  void 
as  against  public  policy,  and  a  statute  requiring  such  an  agree- 
ment was  unconstitutional;  but  this  same  case  also  holds  that 
as  the  State  has  the  right  to  exclude  a  foreign  corporation,  the 
means  by  which  she  causes  such  exclusion  or  the  motives  of 
her  action  are  not  the  subject  of  judicial  inquiry.  Thus,  where 
a  state  legislature  enacted  that  if  any  foreign  insurance  com- 
pany transferred  a  suit  brought  against  it  from  the  state  courts 
to  the  Federal  courts,  the  Secretary  of  State  should  revoke  and 
cancel  its  license  to  do  business  within  the  State,  it  was  held 
that  an  injunction  to  restrain  him  from  so  doing,  because  such  a 
transfer  was  made,  could  not  be  sustained;  that  the  suggestion 
that  the  intent  of  the  legislature  was  to  accomplish  an  illegal 
purpose,  by  preventing  a  resort  to  the  Federal  court,  was  not 
accurate,  therefore,  the  company  must  forego  such  resort  or 
cease  its  business  in  the  State.91    This  decision  is,  however, 

90  Insurance  Co.  v.  Morse,  20  Wall.  Ohio  Rd.  Co.,  151  U.  S.  673,  684,  14 

(87  U.  S.)  445,  22  L.  ed.  365,  cited  Sup.  Ct.  533,  38  L.  ed.  311;  Southern 

in  Blake  v.  McClung,  172  U.  S.  239,  Pacific  Co.  v.  Denton,  146  U.  S.  202, 

256,  43  L.  ed.  432,  19  Sup.  Ct.  165;  207,  13  Sup.  Ct.  44,  36  L.  ed.  942; 

Barrow  Steamship  Co.  v.  Kane,  170  United  States  Life  Ins.  Co.  v.  Cable, 

U.  S.  100,  111,  42  L.  ed.  964,  18  Sup.  98  Fed.  767;  Reimers  v.  Seatco  Mfg. 

Ct.   526;   Goldey   v.   Morning  News,  Co.,  70  Fed.  575. 
156  U.  S.  518,  523,  15  Sup.  Ct.  559,       91  Doyle  v.  Continental  Ins.  Co.,  94 

39  L.  ed.  517;  Martin  v.  Baltimore  &  U.  S.  535,  24  L.  ed.  14a 

564 


GRANT   OF    FRANCHISE  §    356 

explained  in  another  case  in  the  same  court,  which  also  ap- 
proves the  doctrine  of  the  principal  case.92  But  under  a  still 
later  decision  it  is  held  that  since  a  State  has  power  to  prevent 
a  foreign  corporation  from  doing  business  at  all  within  its 
borders,  unless  such  prohibition  is  so  conditioned  as  to  violate 
the  Federal  Constitution,  a  state  statute  which,  without  re- 
quiring a  foreign  insurance  company  to  enter  into  any  agree- 
ment not  to  remove  into  the  Federal  courts  cases  commenced 
against  it  in  the  state  court,  provides  that  if  the  company  does 
so  remove  such  a  case  its  license  to  do  business  within  the  State 
shall  thereupon  be  revoked,  is  not  unconstitutional.93 

§  356.  Condition  as  to  License,  Privilege,  Business  or  Oc- 
cupation Charge,  Rental,  Fee  or  Tax — Interstate  Commerce 
— Equal  Protection  of  Law. — Various  names  have  been 
given  to  the  charges  imposed  upon  the  franchise  right  of  corpo- 
rations to  carry  on  their  business  within  a  State.  Some  of  the 
cases  variously  hold  that  such  charges  are  a  license,  not  a  li- 
cense, a  rental,  a  tax,  not  a  tax,  taxes  for  the  privilege  of  exer- 
cising corporate  franchises,  a  privilege  tax,  occupation  tax, 
taxes  on  corporate  franchises,  tax  on  business,  or  merely  a 
charge  on  business ;  other  decisions  avoid  a  discussion  as  to  the 
nature  or  character  of  the  charges  imposed,  but  sustain  the  en- 
actment or  ordinance.  By  whatever  name  called,  however, 
the  validity  of  such  legislative  act  of  the  State  or  a  municipality 
is  as  a  rule  sustained  in  favor  of  the  municipality  or  State,  and 
the  exceptions  to  the  rule  will  be  found  to  rest  upon  some  spe- 
cial conditions  or  facts  in  the  case,  or  upon  the  fact  that  the 
license,  privilege,  business  or  occupation  tax,  rental,  or  license 
fee  is  so  excessive  as  to  be  prohibitive  or  grossly  unjust  or  un- 
reasonable.94 So  it  must  be  regarded  as  finally  settled  in  the 
Federal  Supreme  Court  by  frequent  decisions  that,  subject  to 

"  Barron    v.   Burnside,  121   U.   S.  S.  535   (above  cited),  followed,  and 

186,  7  Sup.  Ct.  931 ,  30  L.  ed.  915.  held  not  to  be  overruled  by  Barron  v. 

83  Security  Mutual  Life  Ins.  Co.  v.  Burnside,     121     U.     S.     186     (above 

Prewitt,  Ins.  Commr. ,  202  U.  S.  246,  cited),  or  by  any  other  decision. 
50   L.   ed.    1013,   26   Sup.    Ct.    619;        »<  See  Joyce  on  Electric  Law   (2d 

Doyle  v.  Continental  Ins.  Co.,  94  U.  ed.),  §§  97-1 13a,  1866,  937-939. 

565 


§   353  CONDITIONS   IMPOSED — 

certain  limitations  as  respects  interstate  or  foreign  commerce, 
a  State  may,  under  the  rule  which  permits  it  to  impose  con- 
ditions upon  foreign  corporations  desiring  to  carry  on  business 
within  its  limits,  make  the  grant  or  privilege  dependent  upon 
the  payment  Of  a  specific  license  tax,  or  a  sum  proportioned  to 
the  amount  of  its  capital  used  within  the  State.95  And  while 
a  State  may  not  impose  a  tax  which  is  in  any  way  a  burden 
upon  interstate  commerce,  it  may  impose  a  privilege  tax  upon 
corporations  engaged  in  interstate  commerce  for  carrying  on 
that  part  of  their  business  which  is  wholly  within  the  taxing 
State  and  which  tax  does  not  affect  their  interstate  business 
or  their  right  to  carry  it  on  in  that  State; 96  nor  does  the  exac- 
tion of  a  license  fee  deny  the  equal  protection  of  the  laws  to  a 
foreign  corporation.97  The  legislature  may  also  impose  a  privi- 
lege tax  upon  foreign  or  domestic  corporations.98  So  a  license 
fee  or  tax  may  be  exacted  as  a  franchise  tax  from  domestic 
corporations  transacting  foreign  business.99  While,  however, 
a  corporation  may  be  engaged  in  interstate  commerce,  a  dis- 
tinction is  made  between  taxation  of  its  property  and  taxation 
of  interstate  commerce ; l  but  an  annual  license  fee,  or  a  tax 
in  the  nature  of  a  license  fee,  is  not  a  tax  on  property,  and  such 
a  tax  is  not  unconstitutional.2    And  in  determining  the  amount 

95  New  York  v.  Roberts,  171  U.  S.  Borough  of  New  Hope,  187  U.  S.  419, 
658,  43  L.  ed.  345,  19  Sup.  Ct.  235.  47  L.  ed.  240,  23  Sup.  Ct.  204  (cited 

96  Allen  v.  Pullman's  Palace  Car  in  Atlantic  &  Pacific  Teleg.  Co.  v. 
Co.,  191  U.  S.  171,  48  L.  ed.  134,  24  Philadelphia,  190  U.  S.  160, 164, 47  L. 
Sup.  Ct.  39.  ed.  995,  23  Sup.  Ct.  817,  which  is  cited 

97  State  v.  Hammond  Packing  Co.  in  Pabst  Brewing  Co.  v.  Crenshaw, 
(La.),34Pac.  368.  198  U.  S.  17,  37,  49  L.  ed.  925,  25 

98  Clarkesdale  Ins.  Agency  v.  Cole,  Sup.  Ct.  552  in  dissenting  opinion; 
87  Miss.  637,  40  So.  228.  Postal  Telegraph  Cable  Co.  v.  Tay- 

99  Honduras  Commercial  Co.  v.  lor,  192  U.  S.  64,  69,  70,  24  Sup.  Ct. 
State  Bd.  of  Assessors  (N.  J.  Sup.),  23  208,  48  L.  ed.  342;  Postal  Telegraph 
Atl.  668.  Cable  Co.  v.  New  Hope,  192  U.  S. 

1  Indianapolis  &  V.  R.  Co.  v.  55,  60,  63,  24  Sup.  Ct.  204,  48  L.  ed. 
Backus,  133  Ind.  609,  33  N.  E.  443;  338);  St.  Louis  v.  Western  Union 
Cleveland,  C.  C.  &  St.  L.  Ry.  Co.  v.  Teleg.  Co.,  148  U.  S.  92,  37  L.  ed.  380, 
Backus,  133  Ind.  513.  See  citations  13  Sup.  Ct.  485,  4  Am.  Elec.  Cas.  102 
under  next  following  note  herein.  [s.  c.  149  U.  S.  465,  37  L.  ed.  810,  13 

2  Western    Union    Teleg.    Co.    v.  Sup.  Ct.  990,  4  Am.  Elec.  Cas.  115; 

566 


GRANT    OF    FRANCHISE  §    357 

of  a  license  fee  or  tax  such  amount  should  not  be  based  upon 
the  corporate  stock.3  In  a  Kansas  case  it  is  held  that  the  act 
of  the  legislature  of  1898,  commonly  known  as  the  "  Bush  Act,  "4 
requiring  foreign  corporations  to  comply  with  certain  condi- 
tions, including  the  payment  of  charter  fees  computed  upon  the 
amount  of  their  authorized  capital  stock  for  the  privilege  of 
exercising  their  franchises  within  the  State,  was  enacted  pri- 
marily to  protect  the  people  of  the  State  from  imposition,  de- 
ception, fraud,  and  wrong  arising  from  the  abuse  of  corporate 
privileges  and  the  mismanagement  of  corporate  affairs,  and  is  a 
measure  which  the  State  had  authority  to  adopt  under  the 
police  power  reserved  to  it.  It  is  also  held  that  it  was  the  in- 
tention of  the  legislature  that  the  law  should  apply  to  foreign 
corporations  transacting  business  in  the  State  at  the  time  such 
enactment  took  effect.  It  is  further  decided  that  the  require- 
ment of  that  law  that  a  charter  fee  be  paid  fixes  one  of  the  con- 
ditions precedent  to  the  granting  of  permission  to  a  foreign 
corporation  to  transact  its  business  within  the  State:  that  it 
levies  no  tax  upon  property  or  franchises,  is  not  an  attempt  to 
extend  the  taxing  power  of  the  State  to  subjects  outside  of  its 
jurisdiction,  and  does  not  affect  the  character  of  the  enactment 
as  a  police  regulation,  although  some  revenue  may  be  produced 
therefrom.5 

§  357.  Condition  as  to  License,  etc.,  Fee  or  Tax  Con- 
tinued—Constitutional Law — Insurance  Companies — De- 
cisions.6— In  a  case  where  a  foreign  joint-stock  association 
was  held  to  be  a  corporation  it  was  held  that  such  corporation 

s.  c.  (C.  C),  03  Fed.  68,  5  Am.  Elec.  Teleg.  Co.,  40  La.  Ann.  41,  3  So.  533, 

Cas.  43];  North  Jersey  St.  Ry.  Co.  v.  2  Am.  Elec.  Cas.  122,  8  Am.  St.  Rep. 

Jersey  City  (N.  J.,  1900),  63  Atl.  833.  502. 

See  Newport  Ilium.  Co.  v.  Tax  As-  3  Knickerbocker    Importation    Co. 

sessors,  Newport,   19  R.   I.  632,  36  v.  State  Board  of  Assessors   (N.  J., 

Atl.  420,  36   L.   R.   A.   266,  6  Am.  1905),  62  Atl.  266. 

Elec.  Cas.  059,  666,  667,- per  Tilling-  *  Laws  1898,  p.  27,  chap.  10. 

hast,  J.;  Postal  Telegraph  Cable  Co.  6  State   v.   Western   Union  Teleg. 

v.  City  of  Norfolk,  101  Va.  125,  43  Co.  (Kan.,  1907),  90  Pac.  299. 

S.  E.  207.     Examine  New  oilcans,  8  See  .§  87,  herein. 

City  of,  v.  Great  Southern  Teleph.  & 

567 


§    357  CONDITIONS    IMPOSED — 

might  be  taxed  in  another  State  than  that  of  its  incorporation 
for  the  privilege  or  right  of  conducting  its  corporate  business 
within  the  latter  State.7    Such  imposition  of  taxes  as  a  con- 
dition precedent  to  transacting  business  in  a  State  is  not  within 
a  constitutional  prohibition  against  the  passage  of  local  or 
special  laws  for  the  collection  of  taxes;  and  although,  in  re- 
quiring the  tax  as  such  condition,  the  statute  discriminates 
against  foreign  corporations,  by  exacting  higher  taxes  from 
them  than  from  domestic  corporations,  it  is  not  unconstitu- 
tional as  granting  to  any  citizen  or  class  of  citizens  privileges 
which,  upon  the  same  terms,  shall  not  be  open  to  all.8    Where 
an  insurance  company  conformed  to  the  requirements  of  the 
act  of  the  legislature  of  Georgia,  and  received  from  the  comp- 
troller general  a  certificate  authorizing  it  to  transact  business 
in  that  State  for  one  year  from  January  1,  1874,  such  act  does 
not,  expressly  or  by  implication,  limit  or  restrain  the  exercise 
of  the  taxing  power  of  the  State,  or  of  any  municipality;  and 
where  an  ordinance  of  the  city  council  of  Augusta,  passed 
January  5,  1874,  imposed  from  that  date  an  annual  license  tax 
"on  each  and  every  fire,  marine,  or  accident  insurance  com- 
pany located,  having  an  office  or  doing  business  within'   that 
city,  it  was  held,  that  the  ordinance  was  not  in  violation  of  that 
clause  of  the  Constitution  of  the  United  States  which  declares 
"  that  no  State  shall  pass  any  law  impairing  the  obligation 
of  contracts."  9    In  another  case  a  State  by  certain  statutes 
authorized  the  state  officers  to  grant  to  foreign  insurance  com- 
panies, upon  complying  with  certain  terms,  a  license  to  transact 
its  business  within  the  State,  and  then,  by  other  statutes  in- 
corporating cities,  made  it  obligatory  on  such  foreign  com- 
panies transacting  business  within  those  cities  to  pay  them  a 
pro  rata  on  all  their  premiums,  and,  declaring  it  unlawful  in 
the  companies  to  otherwise  do  business  in  them,  authorized 

7  Liverpool  Ins.  Co.  v.  Massachu-  8  Scottish  Union  &  National  Ins. 

setts,  10  Wall.  (77  U.  S.)  566,  19  L.  Co.  of  Edinburg  v.  Herriott  (Iowa), 

ed.  1029,  aff'g  Oliver  v.  Liverpool  &  80  N.  W.  665. 

London   Life   &  Fire  Ins.   Co.,   100  9  Home  Ins.  Co.  v.  Augusta,  93  U. 

Mass.  531.  S.  116,  23  L.  ed.  825. 

568 


GRANT   OF    FRANCHISE  §   357 

such  cities  to  sue  and  recover  it  for  the  use  of  the  city,  the  court 
followed  a  prior  decision  holding  that  the  statutory  require- 
ment was  not  unconstitutional.10  A  Pennsylvania  fire  insurance 
corporation  began  doing  business  in  New  York  in  1872,  and 
continued  it  afterwards  till  1882,  receiving  from  year  to  year 
certificates  of  authority  from  the  proper  officer,  under  a  statute 
of  New  York  passed  in  1883.  A  statute  of  New  York  "  pro- 
vided that  whenever  the  laws  of  any  other  State  should  require 
from  a  New  York  fire  insurance  company  a  greater  license  fee 
than  the  laws  of  New  York  should  then  require  from  the  fire 
insurance  companies  of  such  other  State,  all  such  companies 
of  such  other  State  should  pay  in  New  York  a  license  fee  equal 
to  that  imposed  by  such  other  State  on  New  York  companies. 
In  1873,  Pennsylvania  passed  a  law  requiring  from  every  in- 
surance company  of  another  State,  as  a  prerequisite  to  a  certifi- 
cate of  authority,  a  yearly  tax  of  three  per  cent  on  the  premiums 
received  by  it  in  Pennsylvania  during  the  preceding  year.  In 
1882,  the  insurance  officer  of  New  York  required  the  Pennsyl- 
vania corporation  to  pay,  as  a  license  fee,  a  tax  of  three  per 
cent  on  the  premiums  received  by  it  in  New  York  in  1881.  In 
a  suit  against  such  corporation,  in  a  court  of  New  York,  to  re- 
cover such  tax,  it  was  set  up  as  a  defense,  that  the  tax  was 
unlawful,  because  the  corporation  was  a  "person"  within  the 
"jurisdiction"  of  New  York  and  "the  equal  protection  of  the 
laws  "  had  been  denied  to  it,  in  violation  of  a  clause  in  the  Four- 
teenth Amendment  to  the  Constitution  of  the  United  States. 
On  a  writ  of  error  to  review  the  judgment  of  the  highest  court 
of  New  York,  overruling  such  defense,  it  was  held,  that  such 
clause  had  no  application,  because,  the  defendant  being  a  for- 
eign corporation,  was  not  within  the  jurisdiction  of  New  York, 
until  admitted  by  the  State  on  compliance  with  the  condi- 
tion of  admission  imposed,  namely,  the  payment  of  the  tax 
required  as  a  license  fee;  and  that  the  business  carried  on  by 

,0  Ducat  v.  Chicago,  10  Wall.  (77  U.        "  Chap.  694,  Laws  N.  Y.  1865,  as 

S.)    410,    19    L.    ed.    972,    following  am 'd  by  chap.  60,  Laws  1875. 
Paul  v.  Virginia,  8  Wall.  (75  U.  S.) 
168, 19  L.  ed.  357. 

569 


§    358  CONDITIONS    IMPOSED — 

the  corporation  in  New  York  was  not  a  transaction  of  com- 
merce.12 

§  358.  Condition  as  to  License,  etc.,  Fee  or  Tax  Con- 
tinued— Interstate  Commerce — Express  Companies — De- 
cisions.13— The  license  tax  imposed  upon  express  companies 
doing  business  in  Florida  by  the  statute  of  that  State,14  as  con- 
strued by  the  Supreme  Court  of  that  State,  applies  solely  to 
business  of  the  company  within  the  States,  and  does  not  apply 
to  or  affect  its  business  which  is  interstate  in  its  character; 
and,  being  so  construed,  the  statute  does  not,  in  any  manner, 
violate  the  Federal  Constitution.15  In  another  case  the  State 
of  Georgia  chartered  a  company  to  transact  a  general  forward- 
ing and  express  business.  The  company  had  a  business  office 
at  Mobile,  in  Alabama,  and  there  did  an  express  business  which 
extended  within  and  beyond  the  limits  of  Alabama;  or,  rather, 
there  made  contracts  for  transportation  of  that  sort.  An  ordi- 
nance of  the  city  of  Mobile  was  then  in  force  requiring  that 
every  express  company  or  railroad  company  doing  business 
in  that  city,  and  having  a  business  extending  beyond  the  limits 
of  the  State,  should  pay  an  annual  license  of  $500,  which  should 
he  deemed  a  first-grade  license;  that  every  express  or  railroad 
company  doing  business  within  the  limits  of  the  State  should 
take  out  a  license  called  a  second-grade  license,  and  pay  therefor 
$100;  and  that  every  such  company  doing  business  within  the 
city  should  take  out  a  third-grade  license,  paying  therefor  $50. 
And  it  subjected  any  person  or  incorporated  company  who 
should  violate  any  of  its  provisions  to  a  fine  not  exceeding  $50 
for  each  day  of  such  violation.  It  was  held  that  the  ordinance, 
in  requiring  payment  for  a  license  to  transact  in  Mobile  a  busi- 
ness extending  beyond  the  limits  of  the  State  of  Alabama,  was 
not  repugnant  to  the  provision  of  the  Constitution,  vesting  in 

12  Philadelphia  Fire  Association  v.  15  Osborne  v.  Florida,  164  U.  S. 
New  York,  119  U.  S.  110,  30  L.  ed.  650,  41  L.  ed.  586,  17  Sup.  Ct.  214. 
342,  7  Sup.  Ct.  108.  Examine    Adams     Express    Co.     v. 

13  See    §  79,   herein.  Ohio,  166  U.  S.  185,  41  L.  ed.  965,  17 

14  Sec.  9  of  act  approved  June  2,  Sup.  Ct.  604,  165  U.  S.  194,  41  L.  ed 
1893,  chap.  4115.  683,  17  Sup.  Ct.  305. 

570 


GRANT    OF    FRANCHISE  §    359 

the  Congress  of  the  United  States  the  power  "to  regulate  com- 
merce among  the  several  States."  16  But  it  is  also  decided 
that  the  requirement  that  agents  of  foreign  express  companies 
shall  obtain  a  license  as  a  condition  precedent  to  doing  business 
in  a  State,  or,  in  case  of  failure  so  to  do,  be  subject  to  a  fine,  is 
unconstitutional  in  so  far  as  it  constitutes  an  interference  with 
interstate  commerce.17 

§  359.  Condition  as  to  License,  etc.,  Fee  or  Tax  Con- 
tinued —  Constitutional  Law  —  Railroads  —  Consolidated 
Railroads — Street  Railroads — Decisions.18 — Foreign  corpora- 
tions running  freight  cars  from  places  within  to  places  out- 
side of  a  State  may  be  taxed.19  In  a  Federal  case  it  appeared 
that  a  company  incorporated  by  the  Pennsylvania  statute  of 
1864,  was  authorized  to  construct  a  railroad  on  certain  streets 
of  Philadelphia,  subject  to  the  ordinances  of  the  city  regulating 
the  running  of  passenger  railway  cars.  The  charter  required, 
among  other  things,  that  the  "company  shall  also  pay  such 
license  for  each  car  run  by  said  company  as  is  now  paid  by  other 
passenger  railway  companies"  in  said  city.  That  license  was 
$30  for  each  car.  An  ordinance  passed  in  1867  increased  the 
license  charge  to  $50,  and  in  1868,  by  a  general  statute,  the 
legislature  provided  that  the  passenger  railway  corporations  of 
Philadelphia  should  pay  annually  to  the  city  $50  as  required 
by  their  charters  for  each  car  intended  to  run  on  their  roads 
during  the  year,  and  that  the  city  should  have  no  power  to 
regulate  such  corporations  unless  authorized  by  the  laws  of  the 

18  Osborne  v.  Mobile,  16  Wall.  (8.3  17  Crutcher  v.  Kentucky,  141  U.  S. 

U.  S.)  479,  21   L.  ed.  470.      Exam-  47,  11  Sup.  Ct.  851,  35  L.  ed.  649, 

ine    Postal   Telegraph   Cable   Co.    v.  rev'g  89  Ky.  6,  12  S.  W.  141. 

Charleston,  153  U.  S.  692,  38  L.  ed.  18  See  §§97-107,  111,  112,  herein. 

871,    14    Sup.    Ct.    1094.      Compare  19  Fargo    v.    Auditor   General,    57 

Fargo  v.  Hart,  193  U.  S.  490,  48  L.  Mich.  598,  24  N.  W.  538.     Examine 

ed.    701,  24  Sup.  Ct.  498;    Western  Fargo  v.  Hart,  193  II.  S.  490,  48  L. 

Union    Teleg.  Co.  v.  Alabama,    132  ed.  761,  24  Sup.  Ct.  498;  Maine  v. 

U.  S.  472,  10  Sup.  Ct.  101,  33  L.  ed.  Grand  Trunk  Ry.  Co.,  142  U.  S.  217, 

409;  Leloup  v.   Port  of  Mobile,  127  12'  Sup.  Ct.  121,  35  L.  ed.  994. 
U.  S.  640,  644,  647,  32  L.  ed.  311,  8 
Sup.  Ct.  1380. 

571 


§   359  CONDITIONS   IMPOSED — 

State  expressly  in  terms  relating  to  those  corporations.  The 
company  paid  the  increased  charge  until  1875.  On  its  refusing 
to  pay  it  thereafter  a  suit  was  brought.  It  was  held  that  the 
charter  did  not  amount  to  a  contract  that  the  company  should 
never  be  required  to  pay  a  license  fee  greater  than  that  re- 
quired of  such  companies  at  the  date  when  the  company  was 
incorporated;  and  in  their  widest  sense,  the  words  employed 
in  the  charter  meant  that  the  company  should  not  then  be  re- 
quired by  the  city  to  pay  any  greater  charge  as  license  than 
that  paid  by  other  companies  possessing  the  same  privilege. 
Quare,  without  further  legislation,  could  a  greater  sum  have 
been  exacted  from  the  company?  Semble  that  even  if  the 
charter  were  sufficient  to  import  a  contract,  the  legislature, 
under  the  constitutional  provision  then  in  force  touching  the 
alteration,  revocation,  or  annulment  of  any  charter  in  such 
manner  that  no  injustice  be  done  to  the  corporators,  had  ample 
power  to  pass  the  act  raising  the  license  fee  from  $30  to  $50. 20 
If  a  railroad  is  a  link  in  a  through  line  of  road  by  which  passen- 
gers and  freight  are  carried  into  a  State  from  other  States  and 
from  that  State  to  other  States,  it  is  engaged  in  the  business 
of  interstate  commerce ;  and  a  tax  imposed  by  such  State  upon 
the  corporation  owning  such  road  for  the  privilege  of  keeping 
an  office  in  the  State,  for  the  use  of  its  officers,  stockholders, 
agents  and  employees,  it  being  a  corporation  created  by  another 
State,  is  a  tax  upon  commerce  among  the  States,  and  as  such  is 
repugnant  to  the  Constitution  of  the  United  States.21  So  an 
agency  of  a  line  of  railroad  between  Chicago  and  New  York, 
established  in  San  Francisco  for  the  purpose  of  inducing  pas- 
sengers going  from  San  Francisco  to  New  York  to  take  that 
line  at  Chicago,  but  not  engaged  in  selling  tickets  for  the  route, 
or  receiving  or  paying  out  money  on  account  of  it,  is  an  agency 
engaged  in  interstate  commerce;  and  a  license  tax  imposed 
upon  the  agent  for  the  privilege  of  doing  business  in  San  Fran- 
cisco is  a  tax  upon  interstate  commerce,  and  is  unconstitu- 

20  Railway  Company  v.   Philadel-    sylvania,  136  U.   S.  114,  34  L.  ed. 
phia,  101  U.  S.  528,  25  L.  ed.  912.        394,  10  Sup.  Ct.  958. 

21  Norfolk  &  W.  R.  R.  Co.  v.  Penn- 

572 


GRANT   OF    FRANCHISE  §    359 

tional.22  If  several  railroad  corporations  each  existing  under 
the  laws  of  separate  States  consolidate  into  one  corporation,  a 
statute  of  one  of  the  States,  imposing  a  charge  upon  the  new 
consolidated  company  of  a  percentage  on  its  entire  authorized 
stock  as  the  fee  to  the  State  for  the  filing  of  the  articles  of  con- 
solidation in  the  office  of  Secretary  of  State,  without  which 
filing  it  could  not  possess  the  powers,  immunities  and  privileges 
which  pertain  to  a  corporation  in  that  State,  is  not  a  tax  on  in- 
terstate commerce,  or  the  right  to  carry  on  the  same,  or  the 
instruments  thereof;  and  its  enforcement  involves  no  attempt 
on  the  part  of  the  State  to  extend  its  taxing  power  beyond  its 
territorial  limits.23  In  case  a  statute  so  authorizes  a  city  may 
impose  a  mileage  tax  as  a  condition  to  the  privilege  granted  a 
street  railway  to  use  city  streets.24  An  ordinance  of  a  city, 
imposing,  pursuant  to  a  statute  of  the  State,  a  license  tax,  for 
the  business  of  running  any  horse  or  steam  railroad  for  the 
transportation  of  passengers,  does  not  impair  the  obligation 
of  a  contract,  made  before  the  passage  of  a  statute,  by  which 
the  city  sold  to  a  railroad  company  for  a  large  price  the  right 
of  way  and  franchise  for  twenty-five  years  to  run  a  railroad 

22  McCall  v.  California,  136  U.  S.  Pennsylvania,  136  U.  S.  114,  118,  34 

104,  34  L.  ed.  391,  10  Sup.  Ct.  881.  L.  ed.  394,  10  Sup.  Ct.  958. 
Distinguished  in  Hopkins  v.  United        "  Ashley  v.  Ryan,  153  U.  S.  436, 

States,  171  U.  S.  578,  600,  43  L.  ed.  14  Sup.  Ct.  865,  38  L.  ed.  773. 
290,  19  Sup.  Ct.  40.    Cited  in  Adams        24  Chicago  General  R.  Co.  v.  Chi- 

Express  Co.  v.  Ohio,  165  U.  S.  194,  cago,  176  111.  253,  52  N.  E.  880,  66 

235,  41  L.  ed.  683,  17  Sup.  Ct.  235  L.  R.  A.  959,  68  Am.  St.  Rep.  188. 
(in   dissenting   opinion);    Hooper   v.        Examine  further  as  to  right  to  im- 

California,   155   U.    S.   648,   653,   15  pose   license   or   privilege  fee  or  tax 

Sup.  Ct.  207,  39  L.  ed.  297;  Brennan  upon  street  railway  companies  the 

v.  Titusville,  153  U.  S.  289,  305,  14  following   cases:    Byrne    v.    Chicago 

Sup.  Ct.  829,  38  L.  ed.  719;  Ficklen  G.  R.  Co.,  169  111.  75,  48  N.  E.  703,  7 

v.  Shelby  County,   145  U.  S.  1,  22  Am.  &  Eng.  Corp.  Cas.  (N.  S.)  768, 

(also  at  p.  27  in  dissenting  opinion),  Aff'g  63  111.  App.  438;    Cape  May, 

12  Sup.  Ct.  810,  36  L.  ed.  801;  Pa-  City  of,  v.  Cape  May  Transp.   Co. 

cine  Express  Co.  v.  Seibert,  142  U.  (N.  J.  Sup.),  44  Atl.  948;  McKeesport 

8.  339,  349,  35  L.  ed.  1035,  12  Sup.  v.  McKeesport  &  R.  Pass.  Co.,  2  Pa. 

Ct.  250;  Crutcher  v.  Kentucky,  141  Super.  Ct.  242;  Newport  News  &  O. 

(J.  S.  47,  58, 11  Sup.  Ct.  851,  35  L.  ed.  P.  Ry.  &  Electric  Co.  v.  City  of  New- 

649  (this  case  reverses  89  Ky.  6,  12  port  News  (Va.),  4  Va.  Sup.  Ct.  Rep. 

S.  W.  141);  Norfolk  &  W.  R.  R.  Co.  v.  31,  40  S.  E.  645. 

573 


§    360  CONDITIONS    IMPOSED — 

over  certain  streets  and  according  to  certain  regulations,  and 
the  company  agreed  to  pay  to  the  city  annually  a  real  estate 
tax,  and  the  city  bound  itself  not  to  grant  during  the  same 
period,  a  right  of  way  to  any  other  railroad  company  over  the 
same  streets.25 

§  360.  Condition  as  to  License,  etc.,  Fee  or  Tax  Con- 
tinued— Telegraph  Companies. — In  a  case  in  the  Federal  Su- 
preme Court  it  appeared  that  the  Western  Union  Telegraph 
Company  established  an  office  in  the  city  of  Mobile,  Alabama, 
and  was  required  to  pay  a  license  tax  under  a  city  ordinance, 
which  imposed  an  annual  license  tax  of  $225,  on  all  telegraph 
companies,  and  the  agent  of  the  company  was  fined  for  the  non- 
payment of  this  tax;  in  an  action  to  recover  the  fine,  he  pleaded 
the  charter  and  nature  of  occupation  of  the  company,  and  its 
acceptance  of  the  act  of  Congress  of  July  24,  1866,  and  the  fact 
that  its  business  consisted  in  transmitting  messages  to  all  parts 
of  the  United  States,  as  well  as  in  Alabama :  it  was  held  a  good 
defense.  It  was  also  decided  that  1.  A  general  license  tax  on 
a  telegraph  company  affects  its  entire  business,  interstate  as 
well  as  domestic  or  internal,  and  is  unconstitutional.  The 
property  of  a  telegraph  company,  situated  within  a  State,  may 
be  taxed  by  the  State  as  all  other  property  is  taxed;  but  its 
business  of  an  interstate  character  cannot  be  thus  taxed.  2. 
Where  a  telegraph  company  is  doing  the  business  of  transmit- 
ting messages  between  different  States,  and  has  accepted  and 
is  acting  under  the  telegraph  law  passed  by  Congress  July  24, 
1866,  no  State  within  which  it  sees  fit  to  establish  an  office  can 
impose  upon  it  a  license  tax,  or  require  it  to  take  out  a  license 
for  the  transaction  of  such  business.  3.  Telegraphic  com- 
munications are  commerce,  as  well  as  in  the  nature  of  postal 
service,  and  if  carried  on  between  different  States,  they  are  in- 
terstate commerce,  and  within  the  power  of  regulation  con- 
ferred upon  Congress,  free  from  the  control  of  the  state  regu- 
lations, except  such  as  are  strictly  of  a  police  character;  and 

25  New  Orleans  City  &  L.  R.  R.  192,  36  L.  ed.  121,  12  Sup.  Ct. 
Co.    v.    New    Orleans,     143    U.    S.    406. 

574 


GRANT   OF    FRANCHISE  §   361 

any  state  regulations  by  way  of  tax  on  the  occupation  or  busi- 
ness, or  requiring  a  license  to  transact  such  business,  are  un- 
constitutional and  void.26  In  another  case  in  the  same  court 
it  is  determined  that  a  municipal  charge  for  the  use  of  the 
streets  of  the  municipality  by  a  telegraph  company,  erecting 
its  poles  therein,  is  not  a  privilege  or  license  tax;  and  that  a 
telegraph  company  has  no  right,  under  the  act  of  July  24,  1865, 
c.  230,  14  Stat.  221,  to  occupy  the  public  streets  of  a  city  with- 
out compensation.  Whether  such  tax  is  reasonable  is  a  ques- 
tion for  the  court.27  And  where  telegraph  companies,  engaged 
in  interstate  commerce,  carry  on  their  business  so  as  to  justify 
police  supervision,  the  municipality  is  not  obliged  to  furnish 
such  supervision  for  nothing,  but  it  may,  in  addition  to  ordinary 
property  taxation,  subject  the  corporation  to  reasonable  charges 
for  the  expense  thereof.  The  reasonableness  of  such  charges 
will  depend  upon  all  the  circumstances  involved  in  the  par- 
ticular case,  and,  if  in  a  case  tried  before  a  jury  the  evidence  in 
regard  thereto  is  not  such  as  to  exclude  every  conclusion  ex- 
cept one,  the  question  of  reasonableness  should  be  submitted 
to  the  jury.28  The  city  of  St.  Louis  is  authorized  by  the  con- 
stitution and  laws  of  Missouri,  to  impose  upon  a  telegraph  com- 
pany putting  its  poles  in  the  streets  of  the  city,  a  charge  in  the 
nature  of  rental  for  the  exclusive  use  of  the  parts  so  used.29 

§361.  Condition  as  to  License,  etc.,  Fee  or  Tax  Con- 
tinued —  Constitutional  Law  —  Gas  Franchise  —  Brewing 
Company — Packing  Houses — Decisions. — A  legislative  grant 

28  Leloup  v.  Port  of  Mobile,  127  U.  Union  Teleg.  Co.  v.  City  of  Fremont, 

S.  640,  32  L.  ed.  311,  8  Sup.  Ct.  1380,  43  Neb.  499,  61  N.  W.  724,  26  L.  R. 

aff'd  in  Asher  v.  Texas,  128  U.  S.  A.  706,  aff'g  39  Neb.  692,  58  N.  W. 

129,  32  L.  ed.  368,  9  Sup.  Ct.  1.  415;  Philadelphia,  City  of,  v.  Postal 

27  St.  Louis  v.  Western  Union  Telegraph  Cable  Co.,  21  N.  Y.  Supp. 
Teleg.  Co.,  148  U.  S.  92,  37  L.  ed.  556,  67  Hun,  21,66  Hun,  633;  Kit- 
380,  13  Sup.  Ct.  485.  tanning  Electric  Light,  H.  &  P.  Co. 

28  Atlantic  and  Pacific  Telegraph  v.  Kittanning,  11  Pa.  Super.  Ct.  31; 
Co.  v.  Philadelphia,  190  U.  S.  160,  Western  Union  Teleg.  Co.  v.  Harris 
47  L.  ed.  995,  23  Sup.  Ct.  817.  (Tenn.    Ch.    App.),   52    S.    W.    748; 

29  St.  Louis  v. Western  Union  Teleg.  Joyce  on  Electric  Law  (2d  ed.), 
Co.,  149  U.  S.  465,  37  L.  ed.  810,  13  §§  97-113a. 

Sup.    Ct.    990.      Examine    Western 

575 


§    382  CONDITIONS   IMPOSED — 

of  a  privilege  to  erect,  establish  and  construct  gas  works,  and 
make  and  vend  gas  in  a  municipality  for  a  term  of  years  does 
not  exempt  the  grantees  from  the  imposition  of  a  license  tax 
for  the  use  of  the  privilege  conferred.30  And  a  brewing  com- 
pany may  be  liable  to  a  corporation  privilege  tax  notwithstand- 
ing it  is  liable  for  a  brewer's  license  tax.31  Nor  was  the  Four- 
teenth Amendment  to  the  Constitution  of  the  United  States 
intended  to  prevent  a  State  from  adjusting  its  system  of  tax- 
ation in  all  proper  and  reasonable  ways,  or  through  its  un- 
doubted power  to  impose  different  taxes  upon  different  trades 
and  professions ;  and  imposing  a  license  tax  upon  meat  packing 
houses  is  not  an  arbitrary  and  unreasonable  classification  in- 
validating the  tax  as  denying  the  equal  protection  of  the  law; 
nor  is  it  such  a  denial  because  the  tax  is  not  imposed  on  persons 
not  doing  a  meat  packing  house  business  but  selling  products 
thereof,  or  because  it  is  not  imposed  on  persons  engaged  in 
packing  articles  of  food  other  than  meat.32 

§  362.  Imposing  New  Conditions — Police  Power. — Where 
the  grant  of  a  franchise  to  an  electric  railway  company  author- 
izes its  construction,  subject  to  the  consent  of  certain  city 
councils  and  of  the  judges  of  certain  county  courts  and  of  coun- 
ties, with  the  power  delegated  to  such  bodies  to  subsequently 
impose  conditions  and  limitations  concerning  the  exercise  of 
the  privileges  conferred,  the  company  will  be  bound  by  subse- 
quent conditions  to  the  same  extent  as  if  they  had  been  origi- 
nally a  part  of  the  grant.33  And  where  a  city  grants  consent  to 
the  use  of  its  streets  by  a  telephone  company  and  reserves  the 
right  to  regulate  the  manner  of  occupation,  there  is  included  in 
such  reservation  the  power  to  compel  the  adoption  of  such 
reasonable  and  accepted  improvements  as  may  tend  to  increase 
the  public  safety  or  convenience,  or  which  will  decrease  the 

30  Memphis    Gas    Co.     v.     Shelby   200  U.  S.  226,  26  Sup.  Ct.  232,  50  L. 
County,  109  U.  S.  398,  27  L.  ed.  976,    ed.  451. 

3  Sup.  Ct.  205.  33  Richmond,    R.    &    E.    Co.    v. 

31  Spira  v.  State  (Ala.,  1906),  41  So:  Brown,  97  Va.  26,  32  S.  E.  775,  1  Va. 
465.  S.  C.  Rep.  213. 

32  Armour   Packing   Co.    v.    Lacy, 

576 


GRANT   OF    FRANCHISE  §    333 

obstruction  to  the  city  streets  incident  to  the  telephone  corpo- 
ration's use  thereof;  but  the  city  cannot,  after  acceptance  of  the 
franchise  and  the  erection  of  works,  ordinarily  impose  new  con- 
ditions.34 So  where  the  sole  authority  of  a  municipality  is  by 
the  proper  exercise  of  its  police  power,  inherent  in  it,  to  protect 
the  public  from  unnecessary  obstructions,  inconveniences,  and 
dangers,  and  to  determine  where  and  in  what  manner  a  tele- 
phone company  may  erect  its  poles  and  stretch  its  wires  so  as 
to  accomplish  that  result  it  cannot  impose  other  or  new  con- 
ditions.35 

§363.  Conditions  Subsequent  —  Construction  of— Per- 
formance.— Conditions  subsequent  which  work  a  forfeiture 
are  to  be  construed  liberally,  but  still  the  grantee  is  bound  to  a 
substantial  performance.  If  the  estate  has  once  vested,  it  is 
sufficient  if  the  substance  of  the  condition  be  performed,  and 
if  the  condition  subsequent  be  impossible  to  be  performed,  or 
performance  be  prevented  by  the  act  of  God,  the  grantee  is 
excused.36  Where  the  consent  of  a  city  is  one  of  the  conditions 
precedent  upon  which  the  State  grants  a  franchise  for  the  use 
of  the  streets  of  a  municipality  to  a  railroad  company  and'  such 
consent  is  obtained,  the  city  cannot  impose  a  condition  subse- 
quent which  will  bind  the  company  to  the  extent  of  forfeiting 
its  right  in  case  of  non-compliance  therewith.37 

34  Commercial  Bell  Teleph.  Co.  v.  36  State  v.  Real  Estate  Bank,  5 
Warwick,  185  Pa.  623,  40  Atl.  93.        Pike    (5   Ark.),    595,    41    Am.    Dec. 

As  to  use  of  safety  appliances  and  509. 
improvements,  -see  Joyce  on  Electric        "  Galveston  &  W.  R.  Co.  v.  Gal- 
Law  (2d  ed.),  §§460,  476,  477.  veston,  91  Tex.   17,  39  S.  W.  920, 

35  Michigan  Teleph.  Co.  v.  City  of  36  L.  R.  A.  44,  90  Tex.  398,  39  S.  W. 
Benton  Harbor,  121  Mich.  512,  80  96,  36  L.  R.  A.  33,  7  Am.  &  Eng. 
N.  W.  386,  7  Am.  Elec.  Cas.  9,  14,  R.  Cas.  (N.  S.)  72,  which  reverses  73 
per  Grant,  C.  J.  S.  W.  27. 


37  577 


§  364 


REGULATION    AND    CONTROL 


CHAPTER  XXII. 


REGULATION    AND    CONTROL. 


I  364.  Regulation      and      Control — 
General    Statement. 

365.  Regulation      and      Control — 

Generally. 

366.  Regulation  and  Control — Po- 

lice Power — Generally. 

367.  Foreign  and  Interstate  Com- 

merce Defined — Power  to 
Regulate. 

368.  Same  Subject. 

369.  Regulation     of    Commerce — 

State  Control  of  Business 
Within  Jurisdiction. 

370.  Regulation     of    Commerce — 

Transportation  of  Persons 
or  Property — Generally. 

371.  Regulation    of    Commerce — 

Transportation  of  Railroad 
Cars — Transportation  Over 
River — Distinction  as  to 
Ferries — Police    Power. 

372.  Regulation     of    Commerce — 

Transportation  of  Cattle- 
Inspection  Law — Police 
Power. 

373.  Same  Subject.  . 

374.  Regulation     of    Commerce — 

Transportation  of  Natural 
Gas. 

375.  Regulation     of    Commerce — 

Stopping  Interstate  Trains. 

376.  Regulation     of    Commerce — 

Telegraph  Messages — Po- 
lice Power. 

377.  Regulation    of    Commerce — 

Examination    and    License 


§  378 


379. 


380. 
381. 


of  Locomotive  Engineers — 
Color  Blindness — Due  Proc- 
ess of  Law. 

Regulation  of  Commerce — 
Tracing  Lost  Freight. 

Regulation  and  Control — Re- 
quiring Governmental  Con- 
sent. 

Same  Subject. 

Regulation  of  Railroads — 
Delegation  to  Commission- 
ers— Constitutional  Law — 
Discrimination — Generally. 

382.  Regulation     of     Railroads — 

Protection  Against  Injury 
to  Persons  and  Property. 

383.  Regulation     of     Railroads — 

Providing  Stations  or  Wait- 
ing Rooms — Police  Power. 

384.  Regulation     of     Railroads — 

Sunday  Trains — Interstate 
Commerce — Police    Power. 

385.  Regulation     of     Railroads — 

Safety  Appliances  and  De- 
vices— Heating   Cars. 

386.  Regulation     of     Railroads — 

General  Decisions — Extra 
Trains  for  Connections — 
Removal  of  Tracks — Keep- 
ing Open  Ticket  Offices — 
Limitation  of  Liability — 
Adjusting  Damage  Claims 
— Separate  Cars. 

387.  Regulation  of  Street  Railroad 

Companies — Police   Power. 


§  364.  Regulation    and    Control — General    Statement. — 

The  right  of  a  corporation  to  exercise  its  lawful  franchises 
578 


REGULATION  AND  CONTROL  §  365 

or  privileges  is  essential  to  its  very  existence,  and  courts  will 
protect  such  franchises  or  privileges  and  prevent  their  being 
unlawfully  or  unconstitutionally  impaired  or  destroyed,  and 
this  protection  will  be  extended  to  prevent  the  enforcement 
against  corporations  of  unlawful  and  unconstitutional  govern- 
mental regulations  and  rules  which  would,  if  not  thus  subject 
to  lawful  restriction  and  supervision,  deprive  corporations  of 
their  franchises  and  property  rights  either  in  part  or  wholly. 
But  the  courts  will  also  exercise  equal  vigilance  to  enforce 
all  lawful  and  constitutional  regulations  and  rules  intended, 
without  injury  or  loss  to  franchise  rights  or  privileges,  to 
safeguard  the  public  by  the  proper  control  of  corporations. 
These  principles  are  sustained  throughout  all  the  decisions. 
The  following  words  of  the  court  in  a  Federal  case  are  pertinent 
here;  they  are:  "It  must  be  borne  in  mind  that  a  court  may 
not,  under  the  guise  of  protecting  private  property,  extend 
its  authority  to  a  subject  of  regulation  not  within  its  com- 
petency, but  is  confined  to  ascertaining  whether  the  particular 
assertion  of  the  legislative  power  to  regulate  has  been  exer- 
cised to  so  unwarranted  a  degree  as  in  substance  and  effect 
to  exceed  regulation,  and  be  equivalent  to  a  taking  of  property 
without  due  process  of  law,  or  a  denial  of  the  equal  protection 
of  the  laws."  1 

§  365.  Regulation  and  Control — Generally. — While  we 
have  considered  this  subject  elsewhere  we  may  substantially 
restate  here  the  following  propositions:  A  State  may  adopt 
such  public  policy  as  it  deems  best,  provided  that  it  does  not 
in  so  doing  come  into  conflict  with  the  Federal  Constitution; 
and  if  constitutional  the  legislative  will  must  be  respected, 
even  though  the  courts  be  of  opinion  that  the  statute  is  un- 

1  Atlantic  Coast  Line  Rd.   Co.   v.  Obligation  of  contracts — Conditions 

North    Carolina    Corp.    Commission,  — Regulations — Reserved  power  to  alter 

206  U.  S.  1,  20,  51  L.  ed.  933,  27  Sup.  etc.    See  §  336,  herein. 

Ct.  585,  per  White,  J.  Obligation  of  contracts — Street  pav- 

Obligation  of  contracts — Police  pow-  ing  '"/  street  railways     Conditions  and 

ers — Regulations.     See  §  335,  herein,  regulations.     See  §§  337,  338,  herein. 

579 


§  365  REGULATION  AND  CONTROL 

wise.2  So  a  corporation  is  subject  to  such  reasonable  regula- 
tions as  the  legislature  may  from  time  to  time  prescribe,  as 
to  the  general  conduct  of  its  affairs,  serving  only  to  secure 
the  ends  for  which  it  was  created  and  not  materially  inter- 
fering with  the  privileges  granted  to  it.3  And  state  legislation 
which  regulates  business  may  well  make  distinctions  depend 
upon  the  degrees  of  evil  without  being  arbitrary  and  unrea- 
sonable.4 It  is  declared  in  a  case  in  the  Federal  Circuit  Court 
that  the  right  of  a  State  to  regulate  by  law  the  business  of 
common  carriers,  so  far  as  that  business  is  impressed  with  a 
public  use,  does  not  depend  upon  the  fact  as  to  whether  the 
company  received  its  charter  or  right  to  do  business  from 
that  State,  or  whether  it  is  incorporated  or  not;  nor  does  it 
depend  upon  the  state  constitution;  but  that  such  right  to 
regulate,  in  so  far  as  that  business  affects  the  public,  has  its 
foundation  and  source  in  the  right  of  the  State  to  protect  its 
commerce,  and  that  laws  which  regulate  the  relation  of  the 
carrier  to  the  public,  and  provide  against  discriminations  and 
abuses,  do  not  interfere  with  the  private  business  of  the  com- 
mon carrier.5  Again,  in  another  Federal  case  where  the  power 
of  the  State  to  control  public  service  corporations  was  before 
the  court,  it  is  said  that:  " There  are  certain  principles  involved 
in  the  consideration  of  the  questions  arising  in  this  case  which 
have  been  so  clearly  and  definitely  settled  that  it  is  unneces- 
sary to  review  the  various  decisions  of  the  courts  supporting 

2  Whitfield  v.  .Etna  Life  Ins.  Co.,  v.  Milligan  Mfg.  Co.  v.  Worst,  207 
205  U.  S.  489,  51  L.  ed.  —  27  Sup.  Ct.  U.  S.  338,  356.  The  first  of  these 
— ,  rev'g  144  Fed.  356.  See  Munn  v.  cases,  however,  relates  only  to  the 
Illinois,  94  U.  S.  113,  24  L.  ed.  77;  power  of  the  States  to  legislate; 
Western  Union  Teleg.  Co.  v.  Myatt,  classification  for  governmental  pur- 
98  Fed.  335;  McGuire  v.  Chicago,  poses;  equal  protection  of  the  laws; 
B.  &  Q.  R.  Co.,  131  Iowa,  340,  108  notes  for  patented  articles;  and  the 
N.  W.  902.  point  stated  in  the  text.    The  second 

3  Chicago  Life  Ins.  Co.  v.  Needles,  case  relates  principally  to  the  adul- 
113  U.  S.  574,  5  Sup.  Ct.  681,  28  L.  teration  of  articles  and  is  important 
ed.  1084.  here  only   as   stating  the   point  set 

4  Ozan     Lumber     Co.     v.     Union  forth  in  the  above  text. 

County   National   Bank  of  Liberty,        5  Piatt  v.  LeCocq,  150  Fed.  391. 
207  U.    S.    251,   followed   in   Heath 

580 


REGULATION  AND  CONTROL  §  366 

them.  They  relate  to  the  nature  and  extent  of  public  control 
over  property  affected  with  a  public  interest,  and  the  char- 
acter and  limitations  of  the  functions  employed  in  and  about 
the  exercise  of  such  control.  Whenever  special  privileges, 
not  generally  possessed  by  private  persons,  are  conferred  by 
law  upon  corporations  to  enable  them  to  carry  out  the  ob- 
jects of  their  organization,  and  their  business  and  source  of 
profit  consists  wholly  or  partly  in  the  service  and  patronage 
of  the  public,  their  property  dedicated  to  such  employment 
becomes  clothed  with  a  public  interest,  and,  to  the  extent  of 
such  interest,  is  subject  to  public  control.  The  doctrine  of 
governmental  control  of  property  and  employments  devoted 
to  public  use  is  particularly  applicable  to  what  are  commonly 
termed  'public  service  corporations,' — such  as  railway  and 
telegraph  companies, — although  it  is  also  applied,  though 
probably  in  a  much  more  modified  degree,  to  the  property  of 
private  persons,  which  by  reason  of  its  use,  has  ceased  to  be 
jus  privati.  So  long  as  property  is  so  employed,  the  power 
of  control  by  the  public  through  their  proper  representatives 
exists;  and  such  control  may  embrace  not  only  provisions  for 
the  safety,  security  and  convenience  of  the  public,  but  also 
restrictions  against  unreasonable  or  extortionate  charges  and 
unjust  discriminations.  This  power  of  control,  however,  is 
not  absolute,  but  is  subject  to  certain  constitutional  limita- 
tions, designed  for  the  protection  of  the  owner  against  op- 
pressive action  on  the  part  of  the  State  amounting  to  a  dep- 
rivation of  his  property  without  compensation,  or  without  due 
process  of  law,  or  amounting  to  a  denial  of  the  equal  pro- 
tection of  the  law."  6 

§  .366.  Control  and  Regulation — Police  Power  Generally.7 
— Each  State  lias  the  power,  never  surrendered  to  the  govern- 
ment of  the  Union,  t<>  guard  and  promote  the  public  interests 
by  reasonable  police  regulations  that  do  not  violate  the  Con- 

'Western     Union    Teleg.    Co.    v.       7  See  §§  149,  295,  herein. 
Myatt,  98  Fed.  335,  341,  per  Hook, 
Dist.  J. 

581 


§    366                              REGULATION  AND    CONTROL 

stitution  of  the  United  States  or  the  constitution  of  the  State.8 
The  police  power  is  not  above  the  express  or  necessarily  im- 

8  Chicago,    Burlington    &    Quincy  trains;  commerce);  Allgeyer  v.  Lou- 

Ry.  Co.  v.  Drainage  Commrs.,  200  isiana,  165  U.  S.  578,  17  Sup.  Ct. 

U.   S.  561,  584,  50  L.   ed.   596,  26  427,  41  L.  ed.  832  (foreign  insurance; 

Sup.   Ct.   341    (case  affirms  212  111.  extent  to  which  power  may  be  ex- 

103,  72  N.  E.  219),  per  Harlan,  J.,  ercised    to    be    determined    in    each 

citing    New    York,    New    Haven    &  case);  Western  Union  Teleg.  Co.  v. 

Hfd.  Rd.  Co.  v.  New  York,  165  U.  S.  James,  162  U.  S.  650,  40  L.  ed.  1105, 

628,  631,  41  L.  ed.  853,  17  Sup.  Ct.  16    Sup.    Ct.    934    (telegraph    com- 

418;    Hennington    v.    Georgia,    163  panies);   Louisville  &  N.   R.   Co.   v. 

U.  S.  299,  308,  309,  16  Sup.  Ct.  1086,  Kentucky,  161  U.  S.  677,  40  L.  ed. 

41  L.  ed.  166;  Morgan  v.  Louisiana,  849,  16  Sup.  Ct.  714  (legislative  dis- 

118  U.  S.  455,  464,  6  Sup.  Ct.  1114,  cretion  as  to  exercise  of  such  power); 

30   L.    ed.    237;    Patterson   v.    Ken-  Eagle   Insurance    Co.    v.    Ohio,    153 

tucky,  97  U.  S.  501,  503,  24  L.  ed.  U.  S.  446,  38  L.  ed.  778,  14  Sup.  Ct. 

1115;    Railroad    Co.    v.    Husen,    95  — (returns  by  insurance  companies); 

U.  S.  465,  472,  24  L.  ed.  527;  Gib-  Brass  v.  Stoeser,  153  U.  S.  391,  38 

bons  v.  Ogden,  9  Wheat.  (22  U.  S.)  1,  L.  ed.  757, 14  Sup.  Ct.  —  (grain  ware- 

6  L.  ed.  23.  house  act);  New  York  &  N.  E.  R. 

Extent,    nature,    and    definition    of  Co.    v.    Bristol,    151    U.    S.    556,  38 

police  power.    See  the  following  cases:  L.  ed.  269,  14  Sup.  Ct.  437  (railroad 

United  States:  Houston  &  Texas  grade  crossings);  New  York  v. 
Central  R.  Co.  v.  Mayes,  201  U.  S.  Squires,  145  U.  S.  175,  36  L.  ed.  663, 
321,  50  L.  ed.  772,  26  Sup.  Ct.  491  12  Sup.  Ct.  880  (regulation  of  car- 
regulation  of  railroads;  commerce);  riers  of  electricity);  Budd  v.  New 
Chicago,  Burlington  &  Quincy  Ry.  York,  143  U.  S.  517,  12  Sup.  Ct.  468, 
Co.  v.  Drainage  Commrs.,  200  U.  S.  36  L.  ed.  247  (grain  elevator  acts; 
561,  26  Sup.  Ct.  341,  50  L.  ed.  596,  state  legislation);  Minneapolis  &  St. 
aff'g  212  111.  103,  72  N.  E.  219  L.  R.  Co.,  v.  Beckwith,  129  U.  S.  26, 
(removal  of  bridge);  Manigault  v.  32  L.  ed.  585,  9  Sup.  Ct.  207  (Four- 
Springs,  199  U.  S.  473,  50  L.  ed.  274,  teenth  Amendment  does  not  limit); 
26  Sup.  Ct.  127  (navigable  rivers;  Smith  v.  Alabama,  124  U.  S.  465, 
dams);  Cunnius  v.  Reading  School  31  L.  ed.  508,  8  Sup.  Ct.  564  (re- 
District,  198  U.  S.  458,  25  Sup.  Ct.  served  powers  of  States  in  connection 
721,  49  L.  ed.  1125  (Fourteenth  with);  Mugler  v.  Kansas,  123  U.  S. 
Amendment  does  not  deprive);  Ja-  623,  31  L.  ed.  205,  8  Sup.  Ct.  273 
cobson  v.  Massachusetts,  197  U.  S.  11,  (legislation  as  to  use  of  private  prop- 
25  Sup.  Ct.  358,  49  L.  ed.  643  (scope  erty  as  affecting;  eminent  domain); 
and  extent  of  power;  reasonable  Western  Union  Teleg.  Co.  v.  Pendle- 
regulation);  Smiley  v.  Kansas,  196  ton,  122  U.  S.  347,  30  L.  ed.  1187, 
U.  S.  447,  49  L.  ed.  546,  25  Sup.  Ct.  7  Sup.  Ct.  1126  (telegraph  com- 
276  (freedom  to  contract;  trusts;  panies);  Robbins  v.  Shelby  Tax 
monopolies);  Gladson  v.  Minnesota,  District,  120  U.  S.  489,  30  L.  ed. 
166  U.  S.  427,  17  Sup.  Ct.  627,  41  694,  7  Sup.  Ct.  592  (inspection  laws; 
L.   ed.   1064   (stopping  of  passenger  commerce);    Railroad    Company    v. 

582 


REGULATION  AND  CONTROL  §  366 

plied   constitutional    prohibitions;9   and   all   rights   are   held 
subject  to  the  police  power  of  a  State,  and,  if  the  public  safety 

Fuller,  17  Wall.   (84  U.  S.)  560,  21  215,  8  Am.  St.  Rep.  544,  per  Ber- 

L.  ed.  710  (regulation  of  rates;  com-  mudez,  C.  J. 

merce);  New  York  v.  Miln,  11  Pet.  Maryland:    Deems    v.    Mayor   & 

(36  U.  S.)  102,  9  L.  ed.  648  (internal  City  Council   of   Baltimore,   80   Md. 

police  powers  of  States  unrestrained  173,  45  Am.   St.  Rep.   339,  30  Atl. 

and  exclusive);  Brown  v.  Maryland,  648,  26  L.  R.  A.  541,  per  Robinson, 

12  Wheat.  (25  U.  S.)  419,  6  L.  ed.  C.  J. 

678  (reservation  by  States).  Massachusetts:     Commonwealth 

Alabama:      Birmingham    Mineral  v.  Alger,  7  Cush.  (Mass.)  53,  84,  per 

R.  Co.  v.  Parsons,  100   Ala.  662,  13  Shaw,  C.  J. 

So.  602,  46  Am.  St.   Rep.   92;   Van  Minnesota:  State  v.  St.  Paul,  M. 

Hook  v.  City  of  Selma,  70  Ala.  361,  &    M.    Ry.    Co.    (Minn.,  1906),    108 

45  Am.    Rep.  85;    American   Union  N.  W.  261  (safety  devices  at  railway 

Teleg.  Co.  v.  Western  Union  Teleg.  crossings). 

Co.,  67  Ala.  26,  42  Am.  Rep.  90.  Mississippi:  Macon,  Town  of,  v. 

Arkansas:     Dabbs    v.    State,    39  Patty,   57   Miss.   378,  407,   34   Am. 

Ark.  353,  43  Am.  Rep.  275.  Rep.  451,  per  George,  C.  J. 

Connecticut:     Clark,    In     re,    65  Missouri:  State,  Star  Pub.  Co.,  v. 

Conn.  17,  40,  31  Atl.  522,  28  L.  R.  Associated   Press,    159   Mo.   410,   60 

A.  242,  per  Hammersley,  J.;  Wood-  S.  W.  91,  81  Am.  St.  Rep.  368,  51 

ruff  v.  New  York  &  N.  E.  R.  Co.,  L.    R.    A.    151,    per    Sherwood,    J.; 

59  Conn.  63,  20  Atl.  17.  State  v.  Searey,  20  Mo.  489. 

Illinois:  Price  v.  People,  193  111.  New  Hampshire:  State  v.  Griffin, 

114,  117,  118,  86  Am.  St.  Rep.  306,  69  N.  H.  1,  76  Am.  St.  Rep.  139,  39 

61  N.  E.  844,  per  Boggs,  J.;  Harmon  Atl.  260,  41  L.  R.  A.  177,  per  Car- 

v.  City  of  Chicago,  110  111.  400,  51  penter,  C.  J. 

Am.  Rep.  698;  Toledo,  W.  &  W.  Ry.  New  York:    People  v.  King,  110 

Co.  v.  City  of  Jacksonville,  67  HI.  N.  Y.  418,  423,  18  N.  E.  245,  6  Am. 

37,  16  Am.  Rep.  611.  St.  Rep.   389,   1   L.  R.  A.  293,  per 

Indiana:  State  v.  Richcreek  (Ind.,  Andrews,  J. 

1906),   77   N.   E.    1085    (banks   and  North  Carolina:   State  v.  Moore, 

banking);  Champer  v.  City  of  Green-  104  N.  C.  714,  10  S.  E.  143,  17  Am. 

castle,  13S  Ind.  339,  351,  35  N.  E.  St.  Hep.  696,  per  Avery,  J. 

14,  24  L.  R.  A.  768,  46  Am.  St.  Rep.  Pennsylvania:      Northumberland 

:','.)(),  per  McCabe,  C.  J.  County  v.  Zimmerman,  75  Pa.  26. 

Kansas:  Ratcliff  v.  Wichita  Union  Rhode   Island:   State  v.  Dalton, 

Stockyards  Co.  (Kan.,  1906),  86  Pac.  22  R.  I.  77,  80,  84  Am.  St.  Rep.  818, 

150  (stockyards;  regulation  of  rates);  48  L.  R.  A.  775,  46  Atl.  234,  per 

Meffert    v.  State    Board    of    Medical  Tillinghast,  J.;  State  v.  Fitzpatrick, 

Reg.  &  Exam.,  66  Kan.  710,  72  Pac.  16  R.  I.  1,  51,  11  Atl.  767,  per  Dur- 

247,  per  Greene,  J.  fee,  J. 

Louisiana:  New  Orleans  Gas  Light  Washington:  Seattle,  City  of,  v. 

Co.  v.  Hart,  40  La.  Ann.  474,  4  So.  Clark,  28   Wash.   717,  69   Pac.   407, 


"  State  v.  Chittenden,  127  Wis.  468,  107  N.  W.  500. 


§   366  REGULATION    AND    CONTROL 

or  the  public  morals  require  the  discontinuance  of  any  manu- 
facture or  traffic,  the  legislature  may  provide  for  its  discon- 
tinuance, notwithstanding  individuals  or  corporations  may 
thereby  suffer  inconvenience.10  As  we  have  stated  elsewhere, 
the  police  power  cannot  be  exercised  over  interstate  trans- 
portation of  subjects  of  commerce,11  and  it  is  limited  to  the 
extent  that  the  exercise  thereof  must  be  reasonable  both  as 
to  the  regulation  itself  and  the  subjects  to  be  regulated; 12 
nor  should  there  be  an  arbitrary  invasion  of  personal  rights 
or  of  private  property;  nor  should  such  burdens  be  imposed 
upon  property  rights  that  the  owner  will  thereby  be  unlaw- 
fully deprived  of  the  same; 13  nor  can  a  State  contract  away 
its  police  power.14  "Whatever  differences  of  opinion  may 
exist  as  to  the  extent  and  boundaries  of  the  police  power,  and 
however  difficult  it  may  be  to  render  a  satisfactory  definition 
of  it,  there  seems  to  be  no  doubt  that  it  does  extend  to  the 
protection  of  the  lives,  health  and  property  of  the  citizens, 
and  to  the  preservation  of  good  order  and  the  public  morals. 
The  legislature  cannot  by  any  mere  contract  divest  itself  of 
the  power  to  provide  for  these  objects.  They  belong  em- 
phatically to  that  class  of  objects  which  demand  the  applica- 
tion of  the  maxim,  salus  populi  supremo,  lex;  and  they  are 
to  be  attained  and  provided  for  by  such  appropriate  means 
as  the  legislative  discretion  may  devise.  That  discretion  can 
no  more  be  bargained  away  than  the  power  itself."  15 

per   White,    J.;    Karasek    v.    Peier,  "Railroad    Company    v.    Husen, 

22  Wash.  419,  61  Pac.  33,  50  L.  R.  95  U.  S.  465,  24  L.  ed.  527. 

A.  345,  per  Anders,  J.  12  State    v.    Chittenden,    127   Wis. 

Wisconsin:   Madison,  City  of,   v.  468,  107  N.  W.  500. 

Madison  Gas  &  Electric   Co.    (Wis.,  13  Chicago,  B.  &  Q.  R.  Co.  v.  State, 

1906),    108    N.    W.   65   (gas  rates);  47  Neb.  549,  66  N.  W.  624. 

Huber  v.  Merkel,  117  Wis.  355,  366,  14  Beer  Co.    v.   Massachusetts,   97 

94  N.  W.  354,  62  L.  R.  A.  589,  per  U.  S.  25,  24  L.  ed.  989;  State  v.  St. 

Winslow,   J.;    State    v.    Krentzberg,  Paul,  M.  &  M.  Ry.  Co.  (Minn.,  1906), 

114  Wis.  530,  537,  91  Am.  St.  Rep.  108  N.  W.  261. 

934,  58  L.  R.  A.  748,  90  N.  W.  1098,  15  St.   Louis  &  S.   F.   Ry.   Co.   v. 

per  Dodge,  J.  Matthews,   165  U.   S.   1,  123,  41   L. 

10  Beer  Co.    v.   Massachusetts,   97  ed.   611,   17  Sup.   Ct.   243.     A  case 

U.  S.  25,  24  L.  ed.  989.  of  constitutional  law  and  liability  of 

584 


REGULATION  AND  CONTROL  §  367 

§  367.  Foreign  and  Interstate  Commerce  Defined — 
Power  to  Regulate. — Commerce  with  foreign  countries  and 
among  the  States,  strictly  considered,  consists  in  intercourse 
and  traffic,  including  in  these  terms  navigation  and  the  trans- 
portation and  transit  of  persons  and  property,  as  well  as 
the  purchase,  sale  and  exchange  of  commodities.  To  regu- 
late it  as  thus  defined  there  must  be  only  one  system  of  rules 
applicable  alike  to  the  whole  country,  which  Congress  alone 
can  prescribe.16  As  to  such  commerce  the  following  doctrines 
have  been  asserted  in  the  Federal  courts.  Thus  in  Oilman  v. 
Philadelphia  17  it  is  held  that  the  power  to  regulate  commerce 
comprehends  the  control  for  that  purpose,  and  to  the  extent 
necessary,  of  all  the  navigable  waters  of  the  United  States 
which  are  accessible  from  a  State  other  than  those  on  which 
they  lie;  and  includes,  necessarily,  the  power  to  keep  them 
open  and  free  from  any  obstruction  to  their  navigation,  inter- 
posed by  the  States  or  otherwise;  that  it  is  for  Congress  to  de- 
termine when  its  full  power  shall  be  brought  into  activity,  and 
as  to  the  regulations  and  sanctions  which  shall  be  provided; 
that  some  of  the  subjects  of  this  power,  however,  covering  as  it 
does  a  wide  field,  and  embracing  a  great  variety  of  subjects,  will 
call  for  uniform  rules  and  national  legislation;  while  others 
can  be  best  regulated  by  rules  and  provisions  suggested  by 
the  varying  circumstances  of  differing  places,  and  limited  in 
their  operation  to  such  places  respectively;  and  to  the  extent 
required  by  these  last  cases,  the  power  to  regulate  commerce 
may  be  exercised  by  the  States.  In  another  case  it  is  held 
that  the  power  conferred  upon  Congress  by  the  commerce 
clause  of  the  Constitution  is  exclusive,  so  far  as  it  relates  to 
matters  within  its  purview  which  arc  national  in  their  char- 
railroads  under  state  Btatutes  for  U.  S.  190,  29  L.  cd.  158,  5  Sup.  Ct. 
fire  communicated  by  locomotives.  826;  United  States  v.  Cassidy  (I). 
16  Mobile,  County  of,  v.  Kimball,  C),  07  Fed.  698;  Charge  to  Grand 
102  U.  S.  691,  26  L.  ed.  238.  See  Jury,  In  re  (I).  Q),  02  Fed.  840,  4 
also  Addyston  Pipe  &  Steel  Co.  v.  Inters.  Comm,  Rep.  784. 
United  States,  175  U.  S.  211,  44  17  3  Wall.  (70  U.  S.)  713,  18  L. 
L.  ed.  136,  20  Sup.  Ct.  96;  Gloucester  ed.  90. 
Ferry     Co.     v.     Pennsylvania,     114 

585 


£  368  REGULATION  AND  CONTROL 

acter,  and  admit  or  require  uniformity  of  regulation  affecting 
all  the  States;  and  that  that  clause  was  adopted  in  order  to 
secure  such  uniformity  against  discriminating  state  legislation.18 
It  is  also  decided  that  (1)  The  power  to  regulate  commerce, 
interstate  and  foreign,  vested  in  Congress,  is  the  power  to 
prescribe  the  rules  by  which  it  shall  be  governed,  that  is,  the 
conditions  upon  which  it  shall  be  conducted;  to  determine 
when  it  shall  be  free  and  when  subject  to  duties  or  other  exac- 
tions. (2)  Such  commerce  is  a  subject  of  national  character 
and  requires  uniformity  of  regulation.  (3)  Interstate  com- 
merce by  corporations  is  entitled  to  the  same  protection 
against  state  exactions  which  is  given  in  such  commerce  when 
carried  on  by  individuals.  (4)  As  to  those  subjects  of  com- 
merce which  are  local  or  limited  in  their  nature  or  sphere  of 
operation,  the  State  may  prescribe  regulations  until  Congress 
assumes  control  of  them.  And  (5)  As  to  such  as  are  national  in 
their  character,  and  require  uniformity  of  regulation,  the  power 
of  Congress  is  exclusive;  and  until  Congress  acts,  such  com- 
merce is  entitled  to  be  free  from  state  exaction  and  burdens.19 

§  368.  Same  Subject. — The  question  whether,  when  Con- 
gress fails  to  provide  a  regulation  by  law  as  to  any  particular 
subject  of  commerce  among  the  States,  it  is  conclusive  of  its 
intention  that  that  subject  shall  be  free  from  positive  regula- 
tion, or  that,  until  Congress  intervenes,  it  shall  be  left  to  be 
dealt  with  by  the  States,  is  one  to  be  determined  by  the  cir- 
cumstances of  each  case  as  it  arises.20  Again,  a  state  act  which 
imposes  limitations  upon  the  power  of  a  corporation,  created 
under  the  laws  of  another  State,  to  make  contracts  within 
the  State  for  carrying  on  commerce  between  the  States,  vio- 
lates that  clause  of  the  Federal  Constitution  which  confers 
upon  Congress  the  exclusive  right  to  regulate  that  commerce.21 

"Mobile,  County  of,  v.  Kimball,  Ry.  Co.,  125  U.  S.  465,31  L.  ed.  700, 

102  U.  S,  691,  26  L.  ed.  238.  8  Sup.  Ct.  689,  1062. 

19  Gloucester  Ferry  Co.  v.  Penn-  21  Cooper  Mfg.  Co.  v.  Ferguson,  113 
sylvania,  114  U.  S.  196,  29  L.  ed.  U.  S.  727,  28  L.  ed.  1137,  5  Sup.  Ct. 
158,  5  Sup.  Ct.  826.  739. 

20  Bowman   v.    Chicago   &   N.   W. 

586 


REGULATION  AND  CONTROL  §  369 

But,  under  its  power  to  regulate  commerce,  Congress  may- 
enact  such  legislation  as  shall  declare  void  and  prohibit  the 
performance  of  any  contract  between  individuals  or  corpora- 
tions where  the  natural  and  direct  effect  of  such  a  contract 
shall  be,  when  carried  out,  to  directly  and  not  as  a  mere  inci- 
dent to  other  and  innocent  purposes,  regulate  to  any  extent 
interstate  or  foreign  commerce;  that  the  provision  in  the  Con- 
stitution regarding  the  liberty  of  the  citizen  is  to  some  extent 
limited  by  this  commerce  clause,  and  the  power  of  Congress 
comprises  the  right  to  enact  a  law  under  this  clause  prohibit- 
ing a  citizen  from  entering  into  those  private  contracts  which 
directly  and  substantially  and  not  merely  indirectly,  remotely, 
incidentally  and  collaterally,  regulate  to  a  greater  or  less  de- 
gree, commerce  among  the  States.22  So  parties  subject  them- 
selves to  the  power  of  Congress  to  enact  subsequent  laws 
where  they  engage  in  interstate  commerce.23  Again,  the  power 
of  Congress  to  regulate  foreign  commerce,  being  an  enumer- 
ated power,  is  complete  in  itself,  acknowledging  no  limitations 
other  than  those  prescribed  in  the  Constitution.24  The  gov- 
ernment of  the  United  States  may,  in  the  exercise  of  its  pow- 
ers, remove  everything  put  upon  the  highways,  natural  or 
artificial,  to  obstruct  the  passage  of  interstate  commerce,  or 
it  may  invoke  the  jurisdiction  of  the  civil  courts  in  this  respect.25 

§  300.  Regulation  of  Commerce — State  Control  of  Busi- 
ness Within  Jurisdiction.-5 — While  one  engaging  in  interstate 
commerce  does  not  thereby  submit  all  his  business  to  the 
regulating  power  of  Congress,27  still  the  fact  that  a  corpora- 
tion is  engaged  in  interstate  commerce  does  not  deprive  the 

22  Addyston   Pipe  &   Steel  Co.   v.  S.  470,  24  Sup.  Ct.  349,  48  L.  ed. 

United    States,    175    V.    S.    211,    20  252. 

Sup.  Ct.  96,  44  L.  ed.  136,  modifying        2S  Debs,  In  re,  158  U.  S.  564,  39 

85  Fed.  271,  29  C.  C.  A.  141,  a  case  L  ed.  1092,  15  Sup.  Ct.  900. 
as  to  combinations   in    restraint  of       24  See  §  365,  herein, 
trade  and  enhancement  of  prices.  "Employers'       Liability       Cases 

"Fitzgerald    v.   Grand   Trunk   R.  (Howard  v.  Illinois  Central  Rd.  Co 

Co.,  63  Vt.  L69,  22  Atl.  76.  and  Brooks  v.  Southern  Pacific  Co.), 

"Buttfield   v.   Stranahan,  192  U.  207  U.  S.  463. 

587 


§  369  REGULATION  AND  CONTROL 

State  of  power  to  exercise  reasonable  control  over  its  business 
done  wholly  within  the  State.28  So  it  is  said  in  a  case  in  the 
Federal  Supreme  Court:  "In  our  opinion  the  power,  whether 
called  police,  governmental  or  legislative,  exists  in  each  State, 
by  appropriate  enactments  not  forbidden  by  its  own  con- 
stitution or  by  the  Constitution  of  the  United  States,  to  regu- 
late the  relative  rights  and  duties  of  all  persons  and  corpora- 
tions within  its  jurisdiction,  and  therefore  to  provide  for  the 
public  convenience  and  the  public  good.  This  power  of  the 
States  is  entirely  distinct  from  any  power  granted  to  the 
general  government,  although  when  exercised  it  may  some- 
times reach  subjects  over  which  national  legislation  can  be 
constitutionally  extended.  When  Congress  acts  with  refer- 
ence to  a  matter  confided  to  it  by  the  Constitution,  then  its 
statutes  displace  all  conflicting  local  regulations  touching 
that  matter,  although  such  regulations  may  have  been  estab- 
lished in  pursuance  of  a  power  not  surrendered  by  the  States 
to  the  general  government."  29 

28  McGuire  v.  Chicago,  Burlington  be  brought  within  the  borders  of  a 
&  Quincy  Rd.  Co.,  131  Iowa,  340,  State;  a  bridge  may  at  the  same 
369,  108  N.  W.  902.  time  interrupt  the  navigation  of  the 

29  Lake  Shore  &  Michigan  Southern  river  and  serve  as  a  continuation  of 
Ry.  Co.  v.  Ohio,  173  U.  S.  285,  298,  the  highways  of  the  State;  a  man, 
43  L.  ed.  702,  19  Sup.  Ct.  451,  per  while  the  agent  through  which  the 
Harlan,  J.  transaction    of   interstate   commerce 

"Where,  as  in  the  case  of  our  dual  is  conducted,  is  at  the  same  time 
government,  the  same  territories  one  of  the  population,  permanent  or 
and  the  same  individuals  are  sub-  transient,  of  a  State,  and  subject  to 
ject  to  two  governments,  each  su-  its  general  laws.  There  is  no  con- 
preme  within  its  sphere,  both  gov-  flict  in  powers,  though  there  may  be 
ernments  by  virtue  of  distinct  powers  conflict  in  legislation,  referable  to 
may  legislate  for  the  same  ends,  different  powers.  In  such  a  case 
The  exercise  of  the  rightful  authority  under  our  system  the  law  of  the 
of  the  Nation  and  the  State,  though  State  enacted  by  virtue  of  its  un- 
it proceeds  from  different  govern-  doubted  powers  must  yield  to  the 
mental  powers,  may  reach  and  con-  national  law  enacted  in  pursuance 
trol  the  same  subject.  This  result  of  the  powers  conferred  by  the  Con- 
arises  from  the  different  relations  stitution.  There  is  no  necessity  in 
to  the  community  the  subject  may  this  case  to  disturb  the  troublesome 
sustain:  a  drove  of  cattle  may  be  at  question  when,  if  ever,  even  when 
once  interstate  freight  and  the  ve-  Congress  is  silent,  the  States  may  ex- 
hicle  by  which  infectious  disease  may  ercise  any  direct  power  over  interstate 

588 


REGULATION  AND  CONTROL  §  370 

§  370.  Regulation  of  Commerce — Transportation  of  Per- 
sons or  Property — Generally. — While  a  State  cannot  regulate 
foreign  commerce,  still  it  may  do  many  things  which  more  or 
less  affect  it.  But,  on  the  other  hand,  it  is  not  left  to  the  dis- 
cretion of  each  State  in  the  Union  either  to  refuse  a  right  of 
passage  to  persons  or  property  through  her  territory  or  to 
exact  a  duty  for  permission  to  exercise  it,  for  Congress  has 
willed  that  intercourse  between  the  several  States  shall  be 
free  and  has  so  regulated  such  commerce  that  this  result  shall 
be  accomplished.30    And  a  shipment  which  is  received  for  the 

and  foreign  commerce.  *  *  *  'If  all  such  laws,  so  far  as  they  affect 
a  State,'  said  Chief  Justice  Marshall  such  commerce,  must  yield  to  the 
in  Gibbons  v.  Ogden,  9  Wheat.  (22  superior  authority  of  the  laws  of 
U.  S.)  1,  204,  6  L.  ed.  23,  72,  'in  Congress,  is,  I  think,  conclusively 
passing  laws  on  subjects  acknowl-  shown  by  the  following  cases:  Sher- 
edged  to  be  within  its  control,  and,  lock  v.  Ailing,  93  U.  S.  99,  23  L.  ed. 
with  a  view  to  those  subjects,  shall  819;  Smith  v.  Alabama,  124  U.  S. 
adopt  a  measure  of  the  same  char-  465,  8  Sup.  Ct.  564,  31  L.  ed.  508; 
acter  with  one  which  Congress  may  Nashville,  C.  &  St.  L.  Ry.  Co.  v. 
adopt,  it  does  not  derive  its  author-  Alabama,  128  U.  S.  96,  32  L.  ed. 
ity  from  the  particular  power  which  352,  9  Sup.  Ct.  28;  Hcnnington  v. 
has  been  granted,  but  from  some  Georgia,  163  U.  S.  299,  41  L.  ed.  166, 
other,  which  remains  with  the  State  16  Sup.  Ct.  1086;  New  York,  N.  H.  & 
and  may  be  executed  by  the  same  H.  R.  Co.  v.  New  York,  165  U.  S. 
means.  All  experience  shows  that  628,  17  Sup.  Ct.  418,  41  L.  ed.  453; 
the  same  measure  or  measures,  Chicago,  M.  &  St.  P.  R.  Co.  v. 
scarcely  distinguishable  from  each  Solan,  169  U.  S.  133,  42  L.  ed.  688, 
other,  may  flow  from  distinct  powers;  18  Sup.  Ct.  340;  Pennsylvania  Rail- 
but  this  does  not  prove  that  the  road  v.  Hughc\s,  191  U.  S.  477,  24 
powers  themselves  are  identical.'  Sup.  Ct.  132,  48  L.  ed.  268;  Martin  v. 
That  the  States  may  by  their  laws  Pittsburg,  etc.,  Railroad,  203  U.  S. 
fix  the  relative  rights,  duties,  obli-  284,  51  L.  ed.  184,  27  Sup.  Ct.  100; 
gations  and  liabilities  of  all  persons  Peirce  v.  Van  Dusen,  78  Fed.  693." 
or  corporations  within  their  terri-  Employers'  Liability  Cases  (Howard 
torial  jurisdictions,  and  thus  con-  v.  Illinois  Central  Rd.  Co.  and  Brooks 
trol  in  that  respect  those  who  are  v.  Southern  Pacific  Co.),  207  U.  S. 
engaged  in  interstate  and  foreign  463,  534,  535,  per  Moody,  J.,  in  dis- 
commerce;    that   such    laws   do   not  senting  opinion. 

proceed  from  any  power  to  regulate        80  Passenger    Cases,    7     How.     (48 

such  commerce,  though   incidentally  U.  S.)  283,  12  L.  ed.  702.     See  Em- 

and   indirectly    they   do   regulate    it,  plovers'    Liability  Cases  (Howard   v. 

but  are   to   lie   referred   to   their   gen-  Illinois  Central  It.  Co.  and   Brooks  v. 

era!    power  over  persons  and   things  Southern  Pacific  Co.))  207  U.  S.  463, 

within     their    territories,    and     that  535,  dissenting  opinion  of  Moody,  J. 

589 


§  370  REGULATION  AND  CONTROL 

purpose  of  transportation  between  different  States  is  not 
governed  by  state  enactments,  as  it  constitutes  an  interstate 
shipment.31  But  where  a  state  statute  applies  to  both  intra- 
state and  interstate  shipments,  but  the  shipment  involved  is 
wholly  intrastate,  the  Federal  Supreme  Court  will  not  con- 
sider the  validity  of  the  statute  when  applied  to  interstate 
shipments.32  It  was  decided  by  the  Federal  Supreme  Court, 
in  1887,  that  so  far  as  the  will  of  Congress  respecting  com- 
merce among  the  States  by  means  of  railroads  can  be  deter- 
mined from  its  enactment  of  the  provisions  of  the  law  found 
in  the  Revised  Statutes,33  they  are  an  indication  that  the 
transportation  of  such  commodities  between  the  States  shall 
be  free  except  when  restricted  by  Congress,  or  by  a  State 
with  the  express  permission  of  Congress;  and  that  a  State  can- 
not for  the  purpose  of  protecting  its  people  against  the  evils 
of  intemperance,  enact  laws  which  regulate  commerce  between 
its  people  and  those  of  other  States  of  the  Union  unless  the 
consent  of  Congress,  express  or  implied,  be  first  obtained.34 
An  absolute  requirement  that  a  railroad  engaged  in  interstate 
commerce  shall  furnish  a  certain  number  of  cars  on  a  specified 
day,  to  transport  merchandise  to  another  State,  regardless  of 
every  other  consideration  except  strikes  and  other  public  calam- 
ities, transcends  the  police  power  of  the  States  and  amounts 
to  a  burden  upon  interstate  commerce ;  and  articles  of  the  Re- 
vised Statutes  of  a  State  which  exact  such  a  service,  are,  when 

31  Berry  Coal  &  Coke  Co.  v.  point  in  Vance  v.  W.  A.  Vandercook 
Chicago,  P.  &  St.  L.  Ry.  Co.,  116  Co.,  170  U.  S.  438,  457,  18  Sup.  Ct. 
Mo.  App.  214,  92  S.  W.  714.  674,  42  L.  ed.  1100;  Rhodes  v.  Iowa, 

32  Seaboard  Airline  Ry.  v.  Seegers,  170  U.  S.  412,  414,  429,  42  L.  ed. 
207  U.  S.  73,  aff'g73  S.  C.  71.  1088,    18    Sup.    Ct.    664;    O'Neil    v. 

33  Rev.  Stat.  §  5258,  chap.  6,  tit.  48;  Vermont,  144  U.  S.  323,  335,  355, 
§§  4252-4289.  36  L.  ed.  450,  12  Sup.  Ct.  693;  Rah- 

34  Bowman  v.  Chicago  &  N.  W.  rer,  In  re,  140  U.  S.  545,  35  L.  ed. 
Ry.  Co.,  125  U.  S.  465,  31  L.  ed.  700,  572,  11  Sup.  Ct.  865;  Lyng  v.  Michi- 
8  Sup.  Ct.  689,  1062.  Cited  on  first  gan,  135  U.  S.  161,  166,  34  L.  ed.  130, 
point  in  Addyston  Pipe  &  Steel  Co.  10  Sup.  Ct.  725;  Leisy  v.  Hardin, 
v.  United  States,  175  U.  S.  211,  231,  135  U.  S.  100,  111,  124,  155,  34  L. 
44  L.  ed.  136,  20  Sup.  Ct.  96;  Minor,  ed.  128,  10  Sup.  Ct.  681. 

In  re,  69  Fed.  235.    Cited  on  second 

590 


REGULATION  AND  CONTROL  §  371 

applied  to  interstate  commerce  shipments,  void  as  a  violation 
of  the  commerce  clause  of  the  Federal  Constitution.  Such  a 
regulation  cannot  be  sustained  as  to  interstate  commerce  ship- 
ments as  an  exercise  of  the  police  power  of  the  State.35 

§  371.  Regulation  of  Commerce — Transportation  of  Rail- 
road Cars — Transportation  Over  River — Distinction  as  to 
Ferries — Police  Power. — The  interstate  transportation  of  cars 
from  another  State  which  have  not  been  delivered  to  the  con- 
signee, but  remain  on  the  track  of  a  railway  company  in  the 
condition  in  which  they  were  originally  brought  into  the 
State,  is  not  completed  and  they  are  still  within  the  protection 
of  the. commerce  clause  of  the  Constitution  and  are  not  subject 
to  an  order  of  a  State  Corporation  Commission  requiring  a 
railway  company  to  deliver  cars  from  another  State  to  the 
consignee  on  a  private  siding  beyond  its  own  right  of  way,  and 
therefore  such  an  order  is  a  burden  on  interstate  commerce 
and  is  void.  Qucere,  whether  such  an  order  applicable  solely 
to  state  business  would  be  repugnant  to  the  due  process  clause 
of  the  Constitution.  The  principle  was  applied  in  this  case 
that  while  a  State  in  the  exercise  of  its  police  power  may  con- 
fer power  on  an  administrative  agency  to  make  reasonable 
regulations  as  to  the  place,  time  and  manner  of  delivery  of 
merchandise  moving  in  channels  of  interstate  commerce,  any 
regulation  which  directly  burdens  interstate  commerce  is  a 
regulation  thereof  and  repugnant  to  the  Federal  Constitu- 
tion.36 There  is  an  essential  distinction  between  a  ferry  in 
the  restricted  and  legal  signification  of  the  term,  and  the 
transportation  of  railroad  cars  across  a  boundary  river  between 
two  States,  constituting  interstate  commerce,  and  such  trans- 
portation cannot  be  subjected  to  conditions  imposed  by  a 
State  which  are  direct  burdens  upon  interstate  commerce. 
And  it  is  held  that  conceding,  arguendo,  that  the  police  power 
of  a  State  extends  to  the  establishment,  regulation  or  licensing 

35  Houston    &    Texas    Central    R.    202  U.   S.   543,  50  L.  ed.   1142,  26 
Co.  v.  Mayes,  201  U.  S.  321.  Sup.  Ct.  717. 

38  McNeill    v.    Southern    Ry.    Co., 

591 


§  d/2  REGULATION  AND  CONTROL 

of  ferries  on  navigable  streams  which  are  boundaries  between 
it  and  another  State,  there  are  no  decisions  of  the  Federal 
Supreme  Court  importing  power  in  a  State  to  directly  control 
interstate  commerce  or  any  transportation  by  water  across 
such  a  river  which  does  not  constitute  a  ferry  in  the  strict 
technical  sense  of  that  term.37 

§  372.  Regulation  of  Commerce — Transportation  of  Cat- 
tle— Inspection  Law — Police  Power. — While  a  State  may 
enact  sanitary  laws,  and,  for  the  purpose  of  self-protection, 
establish  quarantine  and  reasonable  inspection  regulations 
and  prevent  persons  and  animals  having  contagious  or  in- 
fectious diseases  from  entering  the  State,  it  cannot,  beyond 
what  is  absolutely  necessary  for  self-protection,  interfere  with 
transportation  of  subjects  of  commerce  into  or  through  its 
territory;  and  a  statute  which  is  intended  to  prevent  the  im- 
portation of  all  cattle  into  a  State  is  such  an  interference  with 
interstate  commerce  as  to  be  unconstitutional  where  such 
statute  is  more  than  a  quarantine  regulation  and  not  a  legiti- 
mate exercise  of  the  police  power  of  the  State.38  The  trans- 
portation of  live  stock  from  State  to  State  being  a  branch  of 
interstate  commerce,  any  specified  rule  or  regulation  in  respect 
to  such  transportation  which  Congress  may  lawfully  prescribe 
or  authorize  and  which  may  properly  be  deemed  a  regulation 
of  such  commerce,  is  paramount  throughout  the  Union.  And 
when  the  entire  subject  of  transportation  of  live  stock  from 
one  State  to  another  is  taken  under  direct  national  supervision 
and  a  system  devised  by  which  diseased  stock  may  be  excluded 
from  interstate  commerce,  all  local  or  state  regulations  in 
respect  to  such  matters  and  covering  the  same  ground  will 
cease  to  have  any  force,  whether  formally  abrogated  or  not; 

37  St.  Clair  Co.  v.  Interstate  Sand  stein  v.  Mavis,  91  111.  391;  Selvage  v. 
&  Car  Trans.  Co.,  192  U.  S.  454,  48  St.  Louis  &  S.  F.  Ry.  Co.,  135  Mo. 
L.  ed.  518,  24  Sup.  Ct.  — .  163,  36  S.  W.  652;  Grimes  v.  Eddy, 

38  Hannibal  &  St.  J.  R.  Co.  v.  126  Mo.  168,  47  Am.  St.  Rep.  653, 
Husen,  95  U.  S.  465,  24  L.  ed.  527.  28  S.  W.  756,  26  L.  R.  A.  638;  Gil- 
See  Chicago  &  A.  R.  Co.  v.  Erickson,  more  v.  Hannibal  &  St.  J.  R.  Co.,  67 
91  111.  613,  33  Am.  Rep.  70;  Salzen-  Mo.  323. 

592 


REGULATION  AND  CONTROL  §  373 

and  such  rules  and  regulations  as  Congress  may  lawfully 
prescribe  or  authorize  will  alone  control.  The  power  which 
the  States  might  thus  exercise  may  in  this  way  be  suspended 
until  national  control  is  abandoned  and  the  subject  be  thereby 
left  under  the  power  of  the  States.  But  where  a  state  statute, 
relating  to  the  introduction  into  the  State  of  cattle  with  in- 
fectious or  contagious  diseases,  relates  to  matters  not  covered 
by  an  act  of  Congress  which  legislates  in  respect  to  animal 
industry,  such  statute  is  not  unconstitutional.39 

§  373.  Same  Subject. — In  a  case  where  a  statute  of  Kansas 
related  to  the  bringing  into  that  State  certain  cattle  which 
might  communicate  disease  to  domestic  cattle  and  also  pro- 
vided for  the  trial  of  civil  actions  to  recover  damages  therefor, 
it  was  held  that  such  enactment  was  not  overridden  by  the 
Animal  Industry  Act  of  Congress,40  nor  by  the  subsequent 
appropriation  act  therefor,41  nor  by  the  statute  42  authorizing 
every  railroad  company  in  the  United  States,  operated  by 
steam,  its  successors  and  assigns,  "to  carry  upon  and  over 
its  roads,  boats,  bridges  and  ferries,  passengers,  troops,  gov- 
ernment supplies,  mails,  freight  and  property  on  their  way 
from  any  State  to  another  State,  and  to  receive  compensation 
therefor,  and  to  connect  with  roads  of  other  States  so  as  to 
form  continuous  lines  for  the  transportation  of  the  same  to 
the  place  of  destination;"  as  Congress  has  not  assumed  to 
give  to  any  corporation,  company  or  person  the  affirmative 
right  to  transport  from  one  State  to  another  State  cattle  that 
were  liable  to  impart  or  capable  of  communicating  contagious, 
infectious  or  communicable  diseases.  The  court  considered  in 
its  decision  the  various  points  involved  and  also  held  as  follows  : 

39Roid  v.  Colorado,  187  U.  S.  137,  Kansas  City,  St.  J.  &  C.  B.  It.  Co., 

47  L.  ed.   108,  23  Sup.  Ct.  92,  aff'g  60  Mo.  184. 

29  Colo.  333,  68  Pac.  228.    Examine        40  Act  March  29,  1884,  23  Stat.  31, 

Kimmish  v.  Ball,  129  U.  S.  217,  9  c.  60. 

Sup.  Ct.  277,  32  L.  ed.  695:  Missouri        "  Act    March    3,    1891,    26    Stat. 

Pacif.   Ry.  Co.   v.   Finley,   38    Kan.  1011,  L049,  c.  544. 
550, 16  Pac.  951 ;  Kenney  v.  Hannibal        "  Rev.  Stat.  U.  S.  §  5258. 
&  St.  J.  R.  Co.,  62  Mo.  176;  Wilson  v. 

38  593 


§  373  REGULATION  AND  CONTROL 

(1)  Whether  a  corporation  transporting,  or  the  person  causing 
to  be  transported  from  one  State  to  another,  cattle  of  the  class 
specified  in  the  Kansas  statute  should  be  liable  in  a  civil 
action  for  any  damages  sustained  by  the  owners  of  domestic 
cattle  by  reason  of  the  introduction  into  their  State  of  such 
diseased  cattle,  is  a  subject  about  which  the  act  of  Congress,43 
known  as  the  Animal  Industry  Act,  did  not  make  any  provi- 
sion. (2)  The  provision  in  the  Kansas  act  imposing  such  civil 
liability  is  in  aid  of  the  objects  which  Congress  had  in  view 
when  it  passed  the  Animal  Industry  Act,  and  it  was  passed  in 
execution  of  a  power  with  which  the  State  did  not  part  when 
entering  the  Union,  namely,  the  power  to  protect  the  people 
in  the  enjoyment  of  their  rights  of  property,  and  to  provide 
for  the  redress  of  wrongs  within  its  limits,  and  is  not,  within 
the  meaning  of  the  Constitution,  nor  in  any  just  sense,  a  regu- 
lation of  commerce  among  the  States.  (3)  A  state  statute, 
although  enacted  in  pursuance  of  a  power  not  surrendered  to 
the  general  government,  must  in  the  execution  of  its  pro- 
visions, yield  in  case  of  conflict  to  a  statute  constitutionally 
enacted  under  authority  conferred  upon  Congress;  and  this, 
without  regard  to  the  source  of  power  whence  the  state  legis- 
lature derived  its  enactment.  (4)  Neither  corporations  nor 
individuals  are  entitled  by  force  alone  of  the  Constitution  of 
the  United  States,  and  without  liability  for  injuries  resulting 
therefrom  to  others,  to  bring  into  one  State  from  another 
State  cattle  liable  to  impart  or  capable  of  communicating 
disease  to  domestic  cattle.  Although  the  powers  of  a  State 
must  in  their  exercise  give  way  to  a  power  exerted  by  Congress 
under  the  Constitution,  it  has  never  been  adjudged  that  that 
instrument  by  its  own  force  gives  anyone  the  right  to  introduce 
into  a  State,  against  its  will,  cattle  so  affected  with  disease 
that  their  presence  in  the  State  will  be  dangerous  to  domestic 
cattle.  (5)  Prior  cases  upon  this  matter  proceed  upon  the 
ground  that  the  regulation  of  the  enjoyment  of  the  relative 
rights,  and  the  performance  of  the  duties,  of  all  persons  within 

"Act  March   29,   1884,   c.   60,  23  Stat.  31. 

594 


REGULATION  AND  CONTROL  §  373 

the  jurisdiction  of  a  State,  belongs  primarily  to  such  State 
under  its  reserved  power  to  provide  for  the  safety  of  all  persons 
and  property  within  its  limits;  and  that  even  if  the  subject 
of  such  regulations  be  one  that  may  be  taken  under  the  ex- 
clusive control  of  Congress,  and  be  reached  by  national  legisla- 
tion, any  action  taken  by  the  State  upon  that  subject  that 
does  not  directly  interfere  with  rights  secured  by  the  Con- 
stitution of  the  United  States  or  by  some  valid  act  of  Con- 
gress, must  be  respected  until  Congress  intervenes.  (6)  An 
act  of  Congress  that  docs  no  more  than  give  authority  to  rail- 
road companies  to  carry  "freight  and  property"  over  their 
respective  roads  from  one  State  to  another  State,  will  not 
authorize  a  railroad  company  to  carry  into  a  State  cattle 
known,  or  which  by  due  diligence  may  be  known,  to  be  in 
such  a  condition  as  to  impart  or  communicate  disease  to  the 
domestic  cattle  of  such  State.  (7)  If  the  carrier  takes  diseased 
cattle  into  a  State,  it  does  so  subject  for  any  injury  thereby 
done  to  domestic  cattle  to  such  liability  as  may  arise  under 
any  law  of  the  State  that  does  not  go  beyond  the  necessities  of 
the  case  and  burden  or  prohibit  interstate  commerce;  and  a 
statute  prescribing  as  a  rule  of  civil  conduct  that  a  person 
or  corporation  shall  not  bring  into  the  State  cattle  that  are 
known,  or  which  by  proper  diligence  could  be  known,  to  be 
capable  of  communicating  disease  to  domestic  cattle,  cannot 
bo  regarded  as  beyond  the  necessities  of  the  case,  nor  as  inter- 
fering with  any  right  intended  to  be  given  or  recognized  by 
section  5258  of  the  Revised  Statutes.  (8)  Congress  could  au- 
thorize the  carrying  of  such  cattle  from  one  State  into  another 
State,  and  by  legislation  protect  the  carrier  against  all  suits 
for  damages  arising  therefrom;  but  it  has  not  done  so,  nor  has 
if  enacted  any  statute  thai  prevents  a  Stale  from  prescribing 
such  a  rule  of  civil  conduct  as  that  found  in  the  statute  of 
Kansas.44  Again,  in  a  late  case  the  power  of  the  State  of  Kan- 
sas to  pass  the  cattle  inspection  law  of  1905,  prohibiting  the 
transportation   of  cattle   into   that    State  subject   to   certain 

"Missouri,   K.    &   T.    R.    Co.    v.    Haber,  169  U.  S.  613,  42  L.  ed.  878, 

18  Sup.  Ct.  488. 

595 


§  373  REGULATION  AND  CONTROL 

conditions,  was  held  not  unconstitutional  as  a  direct  regula- 
tion of  interstate  commerce  and  not  in  conflict  with  certain 
acts  of  Congress.  The  court  reasserted  certain  propositions 
as  follows:  (1)  While  the  State  may  not  legislate  for  the  direct 
control  of  interstate  commerce,  a  proper  police  regulation 
which  does  not  conflict  with  congressional  legislation  on  the 
subject  involved  is  not  necessarily  unconstitutional  because 
it  may  have  an  indirect  effect  upon  interstate  commerce. 
(2)  Until  Congress  acts  on  the  subject  a  State  may,  in  the  exer- 
cise of  its  police  power,  enact  laws  for  the  inspection  of  cattle 
coming  from  other  States.  (3)  Congress  has  not  enacted  any 
legislation  destroying  the  right  of  a  State  to  provide  for  the 
inspection  of  cattle  and  prohibiting  the  bringing  within  its 
borders  of  diseased  cattle  not  inspected  and  passed  as  healthy 
either  by  the  proper  state  or  national  officials.  (4)  A  State 
may  not,  under  the  pretense  of  protecting  the  public  health, 
exclude  the  products  or  merchandise  of  other  States,  and  this 
court  will  determine  for  itself  whether  it  is  a  genuine  exercise 
of  the  police  power  or  really  and  substantially  a  regulation 
of  interstate  commerce.45 

45  Asbell  v.  Kansas,  209  U.  S.  251,  the  verdict  of  a  jury.     The  convic- 

aff'g  60   Kan.   51.     The  opinion   of  tion  was  affirmed  by  the    Supreme 

the    court  is  important,    was    deliv-  Court  of  the  State,  and  the  case  is 

ered   per  Moody,  J.,  and   is   as   fol-  now  here  on  a  writ  of  error,  allowed 

lows:    "A   statute    of   the    State    of  by  the   chief  justice  of  that  court. 

Kansas   makes    it    a    misdemeanor,  The   only   Federal   question   insisted 

punishable  by  fine  or  imprisonment,  upon    in    argument   is    whether   the 

or  both,  for  any  person  to  transport  statute   was    a   restriction   of   inter- 

into  the  State  cattle  from  any  point  state     commerce     which     was     not 

south  of  the  south  line  of  the  State,  within  the  power  of  a  State  to  im- 

except  for  immediate  slaughter,  with-  pose.     The  obvious  purpose  of  the 

out  having  first  caused  them  to  be  law  was  to  guard  against  the  intro- 

inspected  and  passed  as  healthy  by  duction  into  the   State  of  cattle  in- 

the  proper  state  officials  or  by  the  fected  with  a  communicable  disease. 

Bureau  of  Animal   Industry  of  the  It  undoubtedly  restricts  the  absolute 

Interior   Department  of  the    United  freedom   of  interstate   commerce   in 

States.     Sec.  27,   chap.  495,  Session  cattle,  but  only  to  the  extent  that 

Laws  of  1905.     The  plaintiff  in  error  all  cattle  coming  to  cross  the  guarded 

was    duly    charged    by    information  boundary  are  subjected  to  inspection 

in  the  state  court  with  a  violation  to    ascertain    whether   or   not    they 

of  this  statute,  and  found  guilty  by  are   diseased.      If  healthy   they   are 

596 


REGULATION    AND    CONTROL 


§  374 


§  374.  Regulation  of  Commerce — Transportation  of  Natu- 
ral Gas. — State  laws  prohibiting  the  transportation  of  natural 


admitted,  if  diseased  they  are  ex- 
cluded. The  validity  of  such  a  re- 
striction for  such  purposes  has  been 
frequently  considered  by  this  court, 
and  the  principles  applicable  to  the 
settlement  of  the  question  have  been 
clearly  defined.  The  governmental 
power  over  the  commerce  which  is 
interstate  is  vested  exclusively  in  the 
Congress  by  the  commerce  clause 
of  the  Constitution,  and  therefore  is 
withdrawn  from  the  States.  It  is 
not  now  necessary  to  cite  the  many 
cases  supporting  this  proposition,  or 
to  consider  some  expressions  in  the 
books  somewhat  qualifying  its  gen- 
erality, because  in  carefully  chosen 
words  it  has  recently  been  affirmed 
by  us.  At  this  term,  Mr.  Justice 
Peckham,  speaking  for  the  court, 
said:  'That  any  exercise  of  state 
authority,  in  whatever  form  mani- 
fested, which  directly  regulates  inter- 
state commerce,  is  repugnant  to  the 
commerce  clause  of  the  Constitu- 
tion is  obvious.'  Atlantic  Coast  Line 
v.  Wharton,  207  U.  S.  328,  334.  But 
though  it  may  not  legislate  for  the 
direct  control  of  interstate  commerce, 
the  State  may  exercise  any  part 
of  the  legislative  power  which  was 
not  withdrawn  from  it  expressly  or 
by  implication  by  the  scheme  of 
government  put  into  operation  by 
the  Federal  Constitution.  It  may 
sometimes  happen  that  a  law  passed 
in  pursuance  of  the  acknowledged 
power  of  the  State  will  have  an  in- 
direct effect  upon  interstate  com- 
merce. Such  a  law,  though  it  is 
essential  to  its  validity  that  authority 
be  found  in  a  governmental  power 
entirely  distinct  from  the  power  t<> 
regulate  interstate  commerce,  may 
reach  and  indirectly  control  that  sub- 


ject. It  was  at  an  early  day  ob- 
served by  Chief  Justice  Marshall  that 
legislation  referable  to  entirely  dif- 
ferent legislative  powers  might  affect 
the  same  subject.  He  said  in  Gib- 
bons v.  Ogden,  9  Wheat.  (22  U.  S.) 
194,  204,  6  L.  ed.  23:  'So,  if  a  State, 
in  passing  laws  on  subjects  acknowl- 
edged to  be  within  its  control,  and 
with  a  view  to  those  subjects  shall 
adopt  a  measure  of  the  same  char- 
acter with  one  which  Congress  may 
adopt,  it  does  not  derive  its  authority 
from  the  particular  power  which  has 
been  granted,  but  from  some  other, 
which  remains  with  the  State  and 
may  be  executed  by  the  same  means. 
All  experience  shows,  that  the  same 
measures,  or  measures  scarcely  dis- 
tinguishable from  each  other,  may 
flow  from  distinct  powers;  but  this 
does  not  prove  that  the  powers  them- 
selves are  identical.  Although  the 
means  used  in  their  execution  may 
sometimes  approach  each  other  so 
nearly  as  to  be  confounded,  there 
are  other  situations  in  which  they  are 
sufficiently  distinct  to  establish  their 
individuality.  In  our  complex  sys- 
tem, presenting  the  rare  and  diffi- 
cult scheme  of  one  general  govern- 
ment, whose  action  extends  over  the 
whole,  bill  which  possesses  only  cer- 
tain enumerated  powers;  and  of 
numerous  state  governments,  which 
retain  and  exercise  all  powers  not 
delegated  to  the  LTnion,  contests 
respecting  power  must  arise.  Were 
it  even  otherwise,  the  measures  taken 
by  the  respective  governments  to 
execute  their  acknowledged  powers, 
would  often  be  of  the  same  descrip- 
tion, and  might,  sometimes,  interfere. 
This,  however,  does  not  prove  that 
the  one  is  exercising,  or  has  a  right 

597 


§  374 


REGULATION    AND    CONTROL 


gas  from  the  State  are  invalid  where  they  interfere  with  inter- 
state commerce;46  otherwise  such  enactments  may  be  valid.47 


to  exercise,  the  powers  of  the  other.' 
Foreseeing  cases  where  national  and 
state  legislation  based  upon  different 
powers  might,  in  their  application, 
be  brought  into  conflict,  he,  in  the 
same  case  (p.  211),  declared  that 
then  'the  law  of  the  State,  though 
enacted  in  the  exercise  of  powers  not 
controverted,  must  yield,'  a  rule 
which  has  constantly  been  applied 
by  this  court.  These  general  prin- 
ciples control  the  decision  of  the 
case  at  bar.  Cattle,  while  in  the 
course  of  transportation  from  one 
State  to  another,  and  in  that  respect 
under  the  exclusive  control  of  the 
law  of  the  National  Government, 
may  at  the  same  time  be  the  con- 
veyance by  which  disease  is  brought 
within  the  State  to  which  they  are 
destined,  and  in  that  respect  sub- 
ject to  the  power  of  the  State  ex- 
ercised in  good  faith  to  protect  the 
health  of  its  own  animals  and  its  own 
people.  In  the  execution  of  that 
power  the  State  may  enact  laws  for 
the  inspection  of  animals  coming 
from  other  States  with  the  purpose 
of  excluding  those  which  are  diseased 
and  admitting  those  which  are 
healthy.  Reid  v.  Colorado,  187  U.  S. 
137,  47  L.  ed.  108,  23  Sup.  Ct.  92. 
The  State  may  not,  however,  for  this 
purpose  exclude  all  animals,  whether 
diseased  or  not,  coming  from  other 
States,  Railroad  v.  Husen,  95  U.  S. 


465,  24  L.  ed.  527,  nor  under  the  pre- 
tense of  protecting  the  public  health, 
employ  inspection  laws  to  exclude 
from  its  borders  the  products  or 
merchandise  of  other  States;  and  this 
court  will  assume  the  duty  of  de- 
termining for  itself  whether  the 
statute  before  it  is  a  genuine  exercise 
of  an  acknowledged  state  power,  or 
whether,  on  the  other  hand,  under 
the  guise  of  an  inspection  law  it  is 
really  and  substantially  a  regulation 
of  foreign  or  interstate  commerce 
which  the  Constitution  has  conferred 
exclusively  upon  the  Congress.  Min- 
nesota v.  Barber,  136  U.  S.  313,  34 
L.  ed.  455,  10  Sup.  Ct.  862;  Brimmer 
v.  Rebman,  138  U.  S.  78,  11  Sup. 
Ct.  213,  34  L.  ed.  862;  Patapsco 
Guano  Co.  v.  North  Carolina,  171 
U.  S.  345,  43  L.  ed.  191,  18  Sup.  Ct. 
862.  Tested  by  these  principles, 
the  statute  before  us  is  an  inspection 
law  and  nothing  else;  it  excludes 
only  cattle  found  to  be  diseased,  and 
in  the  absence  of  controlling  legis- 
lation by  Congress  it  is  clearly  within 
the  authority  of  the  State,  even 
though  it  may  have  an  incidental 
and  indirect  effect  upon  commerce  be- 
tween the  States.  The  cause,  how- 
ever, cannot  be  disposed  of  without 
inquiring  whether  there  was  at  the 
time  of  the  offense  any  legislation  of 
Congress  conflicting  with  the  state 
law.     If  such  legislation  were  in  ex- 


46  State  v.  Indiana  &  O.  Oil,  Gas 
&  Mining  Co.,  120  Ind.  575,  22  N.  E. 
778,  6  L.  R.  A.  579;  Avery  v.  In- 
diana &  O.  Oil,  Gas  &  Mining  Co., 
120  Ind.  600,  22  N.  E.  781.  See  also 
Manufacturers'  Gas  &  Oil  Co.  v. 
Indiana  Natural  Gas  &  Oil  Co.,  155 
Ind.    545,   58   N.  E.  706.     Examine 

598 


Benedict    v.    Columbus    Const.    Co., 
49  N.  J.  Eq.  23,  23  Atl.  485. 

47  Jamieson  v.  Indiana  Natural 
Gas  &  Oil  Co.,  128  Ind.  555,  12  L. 
R.  A.  652,  28  N.  E.  76.  Examine,  as 
to  principle,  Leisy  v.  Harding,  135 
II.  S.  100,  10  Sup.  Ct.  681,  34  L.  ed. 
128. 


REGULATION    AND    CONTROL 


§  375 


§  375.  Regulation     of    Commerce — Stopping    Interstate 
Trains.  —The  rule  that  any  exercise  of  state  authority,  whether 


istence  the  state  law,  so  far  as  it 
affected  interstate  commerce,  would 
be  compelled  to  yield  to  its  superior 
authority.  This  question  was  con- 
sidered and  the  national  legislation 
carefully  examined  in  Reid  v.  Colo- 
rado, supra,  and  the  conclusion 
reached  that  Congress  had  not  then 
taken  any  action  which  had  the  effect 
of  destroying  the  right  of  the  State 
to  act  on  the  subject.  It  was  there 
said,  p.  148:  'It  did  not  undertake 
to  invest  any  officer  or  agent  of  the 
Department  with  authority  to  go 
into  a  State,  and,  without  its  assent, 
take  charge  of  the  work  of  suppres- 
sing or  extirpating  contagious,  in- 
fectious or  communicable  diseases 
there  prevailing,  and  which  endan- 
gered the  health  of  domestic  ani- 
mals. Nor  did  Congress  give  the 
Department  authority,  by  its  officers 
or  agents,  to  inspect  cattle  within 
the  limits  of  a  State  and  give  a 
certificate  that  should  be  of  superior 
authority  in  that  or  other  States,  or 
which  should  entitle  the  owner  to 
carry  his  cattle  into  or  through  an- 
other State  without  reference  to  the 
reasonable  and  valid  regulations 
which  the  latter  State  may  have 
adopted  for  the  protection  of  its  own 
domestic  animals.  It  should  never 
be  held  that  Congress  intends  to 
supersede  or  by  its  legislation  suspend 
the  exercise  of  the  police  powers  of 
the  States,  even  when  it  may  do  so, 
unless  its  purpose  to  effect  that  re- 
sult is  clearly  manifested.'  There 
has,  however,  been  later  national 
legislation  which  needs  to  be  noticed. 
Large  powers  to  control  the  interstate 
movement  of  cattle  liable  to  be  af- 
flicted with  a  communicable  disease 
have  been  conferred  upon  the  Secre- 


tary of  Agriculture  by  the  act  of 
February  2,  1903,  32  Stat.  791,  and 
the  act  of  March  3,  1905,  33  Stat. 
1204.  The  provisions  of  these  acts 
need  not  be  fully  stated.  The  only 
part  of  them  which  seems  relevant 
to  this  case  and  the  question  under 
consideration  which  arises  in  it  is 
contained  in  the  law  of  1903.  In 
that  law  it  is  enacted  that  when  an 
inspector  of  the  Bureau  of  Animal 
Industry  has  issued  a  certificate  that 
he  has  inspected  cattle  or  live  stock 
and  found  them  free  from  infectious, 
contagious  or  communicable  disease, 
'such  animals  so  inspected  and  certi- 
fied may  be  shipped,  driven,  or  trans- 
ported *  *  *  into  *  *  *  any 
State  or  Territory  *  *  *  with- 
out further  inspection  or  the  exaction 
of  fees  of  any  kind,  except  such  as 
may  at  any  time  be  ordered  or  ex- 
acted by  the  Secretary  of  Agricul- 
ture.' There  can  be  no  doubt  that 
this  is  the  supreme  law,  and  if  the 
state  law  conflicts  with  it  the  state 
law  must  yield.  But  the  law  of 
Kansas  now  before  us  recognizes  the 
supremacy  of  the  national  law  and 
conforms  to  it.  The  state  law  admits 
cattle  inspected  and  certified  by  an 
inspector  of  the  Bureau  of  Animal 
Industry  of  the  United  States,  thus 
avoiding  a  conflict  with  the  national 
law.  Rule  13,  issued  by  the  Secre- 
tary of  Agriculture  under  the  au- 
thority of  the  statute,  is  brought  to 
our  attention  by  the  plaintiff  in 
error.  It  is  enough  to  say  now  that 
the  rule  is  directed  to  transportation 
of  cattle  from  quarantined  States, 
which  is  not  this  case,  and  that  in 
terms  it  recognizes  restrictions  im- 
posed  by  the  State  of  destination. 
Our  attention  is  called  to  no  other 

599 


§  375  REGULATION  AND  CONTROL 

made  directly  or  through  the  instrumentality  of  a  commission, 
which  directly  regulates  interstate  commerce  is  repugnant  to 
the  commerce  clause  of  the  Federal  Constitution,  applies  to 
the  stopping  of  interstate  trains  at  stations  within  the  State 
already  adequately  supplied  with  transportation  facilities. 
But  whether  an  order  stopping  interstate  trains  at  specified 
stations  is  a  direct  regulation  of  interstate  commerce  depends 
on  the  local  facilities  at  those  stations,  and  while  the  suffi- 
ciency of  such  facilities  is  not  in  itself  a  Federal  question,  it 
may  be  considered  by  the  Supreme  Court  for  the  purpose  of 
determining  whether  the  order  does  or  does  not  regulate  inter- 
state commerce,  and  if  it  appears  that  the  local  facilities  are 
adequate,  the  order  is  void.  And  inability  of  fast  interstate 
trains  to  make  schedule,  their  loss  of  patronage  and  compensa- 
tion for  carrying  the  mails,  and  the  inability  of  such  trains  to 
pay  expenses  if  additional  trips  are  required  are  all  matters 
to  be  considered  in  determining  whether  adequate  facilities 
have  been  furnished  to  the  stations  at  which  the  company  is 
ordered  by  state  authority  to  stop  such  trains.48  So  where  a 
state  statute  required  all  regular  passenger  trains  to  stop  a 
sufficient  length  of  time  at  county  seats  to  receive  and  let  off 
passengers  with  safety,  and  it  appeared  that  the  defendant 
company  furnished  four  regular  passenger  trains  a  day  each 
way,  which  were  sufficient  to  accommodate  all  the  local  and 
through  business,  and  that  all  such  trains  stopped  at  county 
seats,  the  act  was  held  to  be  invalid  as  applied  to  an  express 
train  intended  only  for  through  passengers  from  St.  Louis  to 
New  York.    It  was  also  decided  that  while  railways  are  bound 

provision  of  national  law  which  con-  and  we  have  discovered  none.  Judg- 
flicts  with  the  state  law  before  us,    ment  affirmed." 

48  Atlantic  Coast  Line  Ry.  Co.   v.  settled     beyond     question."       Em- 

Wharton,  207  U.  S.  328,  rev'g  Rail-  ployers'  Liability  Cases  (Howard  v. 

road     Commrs.     v.     Atlantic     Coast  Illinois  Central  Rd.  Co.  and  Brooks 

Line  R.  Co.,  74  S.  C.  80,  53  S.  E.  290.  v.  Southern  Pacific  Co.),  207  U.  S. 

"The  want  of  power  in  a  State  to  463,  496,  per  White,  J.,  citing  princi- 

interfere  with  an  interstate  commerce  pal  case  and  also  Mississippi  R.  Co. 

train,    if    thereby  a  burden    is    im-  v.   Illinois  Cent.   R.   Co.,  203  U.   S. 

posed   upon   interstate   commerce   is  335,  343,  51  L.  ed.  209,  27  Sup.  Ct.  90. 

600 


REGULATION  AND  CONTROL  §  375 

to  provide  primarily  and  adequately  for  the  accommodation 
of  those  to  whom  they  are  directly  tributary,  they  have  the 
legal  right,  after  all  these  local  conditions  have  been  met,  to 
adopt  special  provisions  for  through  traffic,  and  legislative 
interference  therewith  is  an  infringement  upon  the  clause  of 
the  Constitution  which  requires  that  commerce  between  the 
States  shall  be  free  and  unobstructed.49  In  another  case  it 
appeared  that  an  act  of  Congress  50  granted  a  right  of  way,  and 
sections  of  the  public  lands,  to  the  State  of  Illinois,  and  to 
States  south  of  the  Ohio  River,  to  aid  in  the  construction  of 
a  railroad  connecting  the  waters  of  the  Great  Lakes  with 
those  of  the  Gulf  of  Mexico,  and  over  which  the  mails  of  the 
United  States  should  be  carried.  The  State  of  Illinois  accepted 
the  act,  and  incorporated  the  Illinois  Central  Railroad  Com- 
pany, for  the  purpose  of  constructing  a  railroad  with  a  south- 
ern terminus  described  as  "a  point  at  the  city  of  Cairo." 
The  company  accordingly  constructed  and  maintained  its 
railroad  to  a  station  in  Cairo,  very  near  the  junction  of  the 
Ohio  and  Mississippi  Rivers;  but  afterwards,  in  accordance 
with  statutes  of  the  United  States  and  of  the  State  of  Illinois, 
connected  its  railroad  with  a  railroad  bridge  built  across  the 
Ohio  River  opposite  a  part  of  Cairo  farther  from  the  mouth 
of  that  river;  and  put  on  a  fast  mail  train  carrying  interstate 
passengers  and  the  United  States  mail  from  Chicago  to  New 
Orleans,  which  train  ran  through  the  city  of  Cairo,  but  did 
not  go  to  the  station  in  that  city,  and  could  not  have  done  so 
without  leaving  the  through  route  at  a  point  three  and  a  half 
miles  from  the  station  and  coming  back  to  the  same  point; 
but  the  company  made  adequate  accommodations  by  other 
trains  for  interstate  passengers  to  and  from  Cairo.  Cairo  was 
the  county  seat.  It  was  held  that  a  statute  of  Illinois,  requir- 
ing railroad  companies  to  stop  their  trains  at  county  seats 
long  enough  to  receive  and  let  off  passengers  with  safety, 
which  was  construed  by  the  Supreme  Court  of  the  State  to 

49  Cleveland,  C.   C.   &  St.   L.   Ry.        50Act   of  September   20,   1850,  c. 
Co.  v.  Illinois,  177  I'.  S.  514,  20  Sup.    61. 
Ct.  122,  11  L.  ed.  8G8 

601 


§  375  REGULATION  AND  CONTROL 

require  the  fast  mail  train  of  this  company  to  be  run  to  and 
stopped  at  the  station  at  Cairo,  was,  to  that  extent,  an  un- 
constitutional hindrance  and  obstruction  of  interstate  com- 
merce, and  of  the  passage  of  the  mails  of  the  United  States.51 
But  it  is  also  held  that  a  statute  of  a  State  requiring  every 
railroad  corporation  to  stop  all  regular  passenger  trains,  run- 
ning wholly  within  the  State,  at  its  stations  at  all  county  seats 
long  enough  to  take  on  and  discharge  passengers  with  safety, 
is  a  reasonable  exercise  of  the  police  power  of  the  State,  and 
does  not  take  property  of  the  company  without  due  process 
of  law;  nor  does  it,  as  applied  to  a  train  connecting  with  a 
train  of  the  same  company  running  into  another  State,  and 
carrying  some  interstate  passengers  and  the  United  States 
mail,  unconstitutionally  interfere  with  interstate  commerce, 
or  with  the  transportation  of  the  mails  of  the  United  States.52 
Again,  where  the  statute  of  Ohio  relating  to  railroad  com- 
panies, in  that  State,  provided  that,  "Each  company  shall 
cause  three,  each  way,  of  its  regular  trains  carrying  passengers, 
if  so  many  are  run  daily,  Sundays  excepted,  to  stop  at  a  station, 
city  or  village,  containing  over  three  thousand  inhabitants, 
for  a  time  sufficient  to  receive  and  let  off  passengers;  if  a  com- 
pany, or  any  agent  or  employee  thereof,  violate,  or  cause  or 
permit  to  be  violated,  this  provision,  such  company,  agent  or 
employee  shall  be  liable  to  a  forfeiture  of  not  more  than  one 
hundred  nor  less  than  twenty-five  dollars,  to  be  recovered 
in  an  action  in  the  name  of  the  State,  upon  the  complaint 
of  any  person,  before  a  justice  of  the  peace  of  the  county  in 
which  the  violation  occurs,  for  the  benefit  of  the  general  fund 

51  Illinois  Cent.  R.  Co.  v.  Illinois,  328,  4  Det.  L.  N.  662,  8  Am.  &  Eng. 
173  U.  S.  142,  41  L.  ed.  107,  16  Sup.  R.  Cas.  (N.  S.)  496];  Lake  Shore  & 
Ct.  1096.  Cited  in  Cleveland,  C.  C.  M.  &  Ry.  Co.  v.  Ohio,  173  U.  S. 
&  St.  L.  Ry.  Co.  v.  Illinois,  177  U.  S.  285,  303,  306  (and  at  p.  321,  in  dis- 
514,  518,  519,  20  Sup.  Ct.  722,  44  senting  opinion),  43  L.  ed.  702,  19 
L.  ed.  868;  Lake  Shore  &  M.  S.  Ry.  Sup.  Ct.  465.  Distinguished  in  Glad- 
Co.  v.  Smith,  173  U.  S.  684,  688,  19  son  v.  Minnesota,  166  U.  S.  427, 
Sup.  Ct.  565,  43  L.  ed.  858  [which  431,  41  L.  ed.  1064,  17  Sup.  Ct.  627. 
reverses  Smith  v.  Lake  Shore  &  M.  52  Gladson  v.  Minnesota,  166  U.  S. 
S.  R.  Co.,  114  Mich.  460,  72  N.  W.  427,  41  L.  ed.  1064,  17  Sup.  Ct.  627. 

602 


REGULATION  AND  CONTROL  §  376 

of  the  county;  and  in  all  cases  in  which  a  forfeiture  occurs 
under  the  provisions  of  this  section,  the  company  whose  agent 
or  employee  caused  or  permitted  such  violation  shall  be  liable 
for  the  amount  of  the  forfeiture,  and  the  conductor  in  charge 
of  such  train  shall  be  held,  prima  facie,  to  have  caused  the  vio- 
lation," it  was  decided  that  such  statute  was  not,  in  the  ab- 
sence of  legislation  by  Congress  on  the  subject,  repugnant  to 
the  Constitution  of  the  United  States,  when  applied  to  inter- 
state trains,  carrying  interstate  commerce  through  the  State 
of  Ohio  on  the  Lake  Shore  and  Michigan  Southern  Railway.53 

§  376.  Regulation  of  Commerce — Telegraph  Messages — 
Police  Power. — A  state  statute,  requiring  every  telegraph  com- 
pany with  a  line  of  wires  wholly  or  partly  within  that  State 
to  receive  dispatches  and,  on  payment  of  the  usual  charges, 
to  transmit  and  deliver  them  with  due  diligence,  under  a  cer- 
tain penalty,  is  a  valid  exercise  of  the  power  of  the  State  in 
relation  to  messages  by  telegraph  from  points  outside  of  and 
directed  to  some  point  within  the  State.54  But  where  a  statute 
requires  telegraph  companies  to  deliver  dispatches  by  mes- 
senger to  the  persons  to  whom  the  same  are  addressed  or  to 
their  agents,  provided  they  reside  within  one  mile  of  the  tele- 
graph station,  or  within  the  city  or  town  in  which  such 
station  is,  such  enactment  is  in  conflict  with  the  commerce 

53  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Missouri:  Connell  v.  Western 
Ohio,  173  U.  S.  285,  43  L.  ed.  702,  Union  Teleg.  Co.,  108  Mo.  459,  18 
19  Sup.  Ct.  465.  S.   W.   883,   39  Am.   &  Eng.   Corp. 

54  Western    Union    Teleg.    Co.    v.  Cas.  594,  4  Am.  Elec.  Cas.  743. 
James,  162  U.  S.  650,  40  L.  ed.  1105,  Tennessee:  Western  Union  Teleg. 
16  Sup.  Ct.  934,  6  Am.  Elec.  Cas.  858,  Co.  v.  Mellon,  100  Tenn.  429,  45  S. 
Shiras,  J.,  and  White,  J.,  dissenting.  W.  443. 

Examine  the  following  cases:  Virginia:    Western   Union   Teleg. 

Georgia:    Western    Union    Teleg.  Co.  v.  Tyler,  90  Va.  297,  18  S.  E. 

Co.  v.  Lark,  95  Ga.  806,  23  S.  E.  118.  280,    4    Am.    Elec.    Cas.    816.      See 

Iowa:    Taylor  v.   Western    Union  Western  Union  Teleg.  Co.  v.  Tyler, 

Teleg.  Co.,  95  Iowa,  740,  64  N.  W.  94  Va.  268,  26  S.  E.  828,  6  Am.  Elec. 

660.  Cas.  853,  where  the  court  relied  upon 

Mississippi:    Marshall  v.  Western  the  principal  case  although  the  mes- 

T'nion  Teleg.  Co.,  79  Miss,  l.'l,  161,  sage  was  a  domestic  one. 
162,27  So.  614, 89  Am.  St.  Rep.  585. 

603 


§  377  REGULATION  AND  CONTROL 

clause  of  the  Federal  Constitution  in  so  far  as  it  attempts  to 
regulate  the  delivery  of  such  dispatches  at  places  situated  in 
other  States.  The  authority  of  Congress  over  the  subject  of 
commerce  by  telegraph  with  foreign  countries  or  among  the 
States  being  supreme,  no  State  can  impose  an  impediment 
to  its  freedom  by  attempting  to  regulate  the  delivery  in  other 
States  of  messages  received  within  its  own  borders.  The  re- 
served police  power  of  a  State  under  the  Constitution,  although 
difficult  to  define,  does  not  extend  to  the  regulation  of  the 
delivery  at  points  without  the  State  of  telegraphic  messages 
received  within  the  State;  but  the  State  may,  within  the 
reservation  that  it  does  not  encroach  upon  the  free  exercise 
of  the  powers  vested  in  Congress,  make  all  necessary  provisions 
in  respect  of  the  buildings,  poles  and  wires  of  telegraph  com- 
panies within  its  jurisdiction  which  the  comfort  and  con- 
venience of  the  community  may  require.55 

§  377.  Regulation  of  Commerce — Examination  and  Li- 
cense of  Locomotive  Engineers — Color  Blindness — Due 
Process  of  Law. — The  legislature  of  Alabama  enacted  a  law 
entitled:  "An  act  to  require  locomotive  engineers  in  this  State 
to  be  examined  and  licensed  by  a  board  to  be  appointed  for 
that  purpose,"  in  which  it  was  provided  that  it  should  be 
"unlawful  for  the  engineer  of  any  railroad  train  in  this  State 
to  drive  or  operate  or  engineer  any  train  of  cars  or  engine  upon 
the  main  line  or  roadbed  of  any  railroad  in  this  State  which  is 
used  for  the  transportation  of  persons,  passengers  or  freight, 
without  first  undergoing  an  examination  and  obtaining  a  li- 
cense as  hereinafter  provided."  The  statute  then  provided 
for  the  creation  of  a  board  of  examiners  and  prescribed  their 
duties,  and  authorized  them  to  issue  licenses  and  imposed  a 
license  fee,  and  then  enacted,  "that  any  engineer  violating  the 
provisions  of  this  act  shall  be  guilty  of  a  misdemeanor,  and, 

55  Western    Union    Teleg.    Co.    v.  rev'g  95  Ind.  12,  8  Am.  &  Eng.  Corp. 

Pendleton,  122  U.  S.  347,  7  Sup.  Ct.  Cas.   56,   48  Am.   Rep.   692,   1   Am. 

1126,  30  L.  ed.  1187,  18  Am.  &  Eng.  Elec.  Cas.  632.     See  Joyce  on  Elec- 

Corp.  Cas.  18,  2  Am.  Elec.  Cas.  49,  trie  Law  (2d  ed.),  §§  125-128. 

604 


REGULATION  AND  CONTROL  §  377 

upon  conviction,  shall  be  fined  not  less  than  fifty  nor  more 
than  five  hundred  dollars,  and  may  also  be  sentenced  to  hard 
labor  for  the  county  for  not  more  than  six  months."  Plain- 
tiff in  error  was  an  engineer  in  the  service  of  the  Mobile  and 
Ohio  Railroad  Company.  His  duty  was  to  "drive,  operate 
and  engineer"  a  locomotive  engine  drawing  a  passenger  train 
on  that  road,  regularly  plying  in  one  continuous  trip  between 
Mobile  and  Alabama  and  Corinth  in  Mississippi,  and  vice  versa, 
sixty  miles  of  which  trip  was  in  Alabama,  and  two  hundred 
and  sixty-five  in  Mississippi.  He  never  "  drove,  operated  or 
engineered"  a  locomotive  engine  hauling  cars  from  one  point 
to  another  point  exclusively  within  the  State  of  Alabama. 
After  the  statute  of  Alabama  took  effect,  he  continued  to  per- 
form such  regular  duties  without  taking  out  the  license  re- 
quired by  that  act.  He  was  proceeded  against  for  a  violation 
of  the  statute,  and  was  committed  to  jail  to  answer  the  charge. 
He  petitioned  the  state  court  for  a  writ  of  habeas  corpus  upon 
the  ground  that  he  was  employed  in  interstate  commerce,  and 
that  the  statute,  so  far  as  it  applied  to  him,  was  a  regulation 
of  commerce  among  the  States,  and  repugnant  to  the  Consti- 
tution of  the  United  States.  The  writ  was  refused,  and  the 
Supreme  Court  of  the  State  of  Alabama  on  appeal  affirmed 
that  judgment.  It  was  held,  (1)  that  the  statute  of  Alabama 
was  not,  in  its  nature,  a  regulation  of  commerce,  even  when 
applied  to  such  a  case  as  this;  (2)  that  it  was  an  act  of  legis- 
lation within  the  scope  of  the  powers  reserved  for  the  States, 
to  regulate  the  relative  rights  and  duties  of  persons  within 
their  respective  territorial  jurisdictions,  being  intended  to 
operate  so  as  to  secure  safety  of  persons  and  property  for  the 
public;  (3)  that  so  far  as  it  affected  transactions  of  commerce 
among  the  States,  it  did  so  only  indirectly,  incidentally  and 
remotely,  and  not  so  as  to  burden  or  impede  them,  and  that, 
in  the  particulars  in  which  it  touched  those  transactions  at 
all,  it  was  not  in  conflict  with  any  express  enactment  of  Con- 
gress on  the  subject,  nor  contrary  to  any  intention  of  Congress 
to  be  presumed  from  its  silence;  (4)  that  so  far  as  it  was  alleged 
to  contravene  the  Constitution  of  the  United  States  the  statute 

605 


§  378  REGULATION  AND  CONTROL 

was  a  valid  law.56  So  a  state  statute  which  requires  loco- 
motive engineers  and  other  persons,  employed  by  a  railroad 
company  in  a  capacity  which  calls  for  the  ability  to  distin- 
guish and  discriminate  between  color  signals,  to  be  examined 
in  this  respect  from  time  to  time  by  a  tribunal  established  for 
the  purpose,  and  which  exacts  a  fee  from  the  company  for  the 
service  of  examination,  does  not  deprive  the  company  of  its 
property  without  due  process  of  law,  and,  so  far  as  it  affects 
interstate  commerce,  is  within  the  competency  of  the  State 
to  enact,  until  Congress  legislates  on  the  subject.57 

§  378.  Regulation  of  Commerce — Tracing  Lost  Freight. 

— The  imposition,  by  a  state  statute,  upon  the  initial  or  any 
connecting  carrier,  of  the  duty  of  tracing  the  freight  and 
informing  the  shipper,  in  writing,  when,  where,  how  and  by 
which  carrier  the  freight  was  lost,  damaged  or  destroyed,  and 
of  giving  the  names  of  the  parties  and  their  official  position,  if 
any,  by  whom  the  truth  of  the  facts  set  out  in  the  information 
can  be  established,  is,  when  applied  to  interstate  commerce,  a 
violation  of  the  commerce  clause  of  the  Federal  Constitution; 
and  a  code  which  imposes  such  a  duty  on  common  carriers  is 
void  as  to  shipments  made  from  points  in  the  State  enacting 
such  statutory  provision  to  other  States.58  The  court  in  giving 
this  decision  distinguishes  it  from  an  earlier  case,  wherein  it 
was  held  that  a  state  statute  enacting  that:  "When  a  common 
carrier  accepts  for  transportation  anything  directed  to  a  point 
of  destination  beyond  the  terminus  of  his  own  line  or  route, 
he  shall  be  deemed  thereby  to  assume  an  obligation  for  its  safe 
carriage  to  such  point  of  destination,  unless,  at  the  time  of 
such  acceptance,  such  carrier  be  released  or  exempted  from 
such  liability  by  contract  in  writing,  signed  by  the  owner  or 
his  agent;  and  although  there  be  such  contract  in  writing, 

58  Smith   v.   Alabama,  124   U.    S.        58  Central   of  Georgia  Ry.   Co.   v. 
465,  31  L.  ed.  508,  8  Sup.  Ct.  564.        Murphy,  196  U.  S.  194,  49  L.  ed.  444, 

57  Nashville,  C.   &   St.   L.   Ry.   v.    25  Sup.  Ct.  218. 
Alabama,  128  U.  S.  96,  32  L.  ed.  352, 
9  Sup.  Ct.  28. 

606 


REGULATION  AND  CONTROL  §  379 

if  such  thing  be  lost  or  injured,  such  common  carrier  shall 
himself  be  liable  therefor,  unless,  within  a  reasonable  time  after 
demand  made,  he  shall  give  satisfactory  proof  to  the  consignor 
that  the  loss  or  injury  did  not  occur  while  the  thing  was  in  his 
charge,"  does  not  attempt  to  substantially  regulate  or  control 
contracts  as  to  interstate  shipments,  but  simply  establishes 
a  rule  of  evidence,  ordaining  the  character  of  proof  by  which 
a  carrier  may  show  that,  although  it  received  goods  for  trans- 
portation beyond  its  own  line,  nevertheless,  by  agreement,  its 
liability  was  limited  to  its  own  line;  and  it  does  not  conflict 
with  the  provisions  of  the  Constitution  of  the  United  States, 
touching  interstate  commerce.59 

§  379.  Regulation  and  Control — Requiring  Governmental 
Consent. — Within  its  power  to  control  and  regulate  the  exer- 
cise by  a  corporation  of  its  franchises  or  privileges,  a  State 
or  other  governmental  agency  generally  requires  its  consent 
as  a  prerequisite  or  condition  precedent  to  the  use  of  the 
public  streets  or  highways,  or  to  the  valid  exercise  of  a  fran- 
chise. We  have,  however,  treated  this  subject  throughout 
this  work  and  it  will  be  only  briefly  considered  here.60    Con- 

59  Richmond  &  Alleghany  R.  Co.  v.  Postal  Teleg.  Cable  Co.,  140  Fed. 
R.  A.  Patterson  Tobacco  Co.,  169  692,  72  C.  C.  A.  186,  rev'g  Ohio  Pos- 
U.  S.  311,  42  L.  ed.  759,  18  Sup.  Ct.  tal  Teleg.  Cable  Co.  v.  Board  of  Com- 
335.  Cited  in  Cleveland,  C.  C.  &  St.  missioners,  137  Fed.  947  (control  by 
L.  Ry.  Co.  v.  Illinois,  177  U.  S.  514,  States,  counties,  etc.,  notwithstand- 
517,  20  Sup.  Ct.  722,  44  L.  ed.  868;  ing  right  under  Post  Roads  Act); 
Missouri,  K.  &  T.  Ry.  Co.  v.  Mc-  Detroit  Citizens'  St.  R.  Co.  v.  De- 
Cann,  174  U.  S.  580,  587,  588,  590,  troit,  64  Fed.  628,  12  C.  C.  A.  365, 
43  L.  ed.  1093,  19  Sup.  Ct.  755;  Lake  26  L.  R.  A.  667,  1  Am.  &  Eng.  R. 
Shore  &  M.  S.  Ry.  Co.  v.  Ohio,  173  Cas.  (N.  S.)  71  (express  power  given 
U.  S.  285,  324,  19  Sup.  Ct.  465,  43  city  to  grant  irrevocable  consent; 
L.  ed.  702,  in  dissenting  opinion;  street  railways);  Baltimore  Trust  & 
Missouri,  K.  &  T.  Ry.  Co.  v.  Haber,  G.  Co.  v.  Baltimore  (C.  O),  64  Fed. 
169  U.  S.  613,  627,  42  L.  ed.  878,  18  1.53  (right  to  withdraw  consent;  lay- 
Sup.  Ct.  488.  ing  of  double  tracks). 

50  Philadelphia  v.   Lombard   &   S.        California:  Western  Union  Teleg. 
St.    Pass.    R.   Co.,   4   Brewst.    (Pa.)  Co.  v.  City  of  Visalia,  149  Cal.  744, 
14.  87    Pac.    1023    (effect   of   attempted 
See  the  following  cases:  grant  by  ordinance;  telegraph  corn- 
United    States:    Ganz    v.    Ohio  pany);  Eisenhuth  v.  Ackerson,  105 

607 


§  379            REGULATION  AND  CONTROL 

sent  may  be  evidenced  by  the  act  of  a  city's  common  council 
in  passing  a  resolution  whereby  the  lighting  of  certain  parts 

Cal.  87,  38  Pac.  530  (code  requiring  nent  domain  may  be  exercised  there- 
vote  of  city  or  town  for  use  of  streets;  for), 
veto  power  of  mayor).  Kentucky:  East  Tennessee  Teleph. 

Florida:  Florida  Cent.  &  P.  R.  Co.  Co.  v.  Russellville,  106  Ky.  667,  21 

v.  Ocala  St.  &  S.  R.  Co.,  39  Fla.  306,  Ky.    L.    Rep.    305,    51    S.    W.    308 

22  So.  692,  7  Am.   &  Eng.  R.  Cas.  (privilege  to  erect  telephone  line  not 

(N.  S.)  696  (statute  conferring  upon  a   charter   requiring    consent    under 

cities  control  over  streets;  no  power  the  constitution.      See  §  44,  herein); 

to   consent   to   exclusive   use   of   all  Louisville   v.    Louisville   Water  Co., 

streets  by  street  railway  company).  20  Ky.  L.  Rep.  1529,  49  S.  W.  766 

Georgia:  Almand  v.  Atlanta  Con-  (water    company    using    streets    for 

sol.  St.  Ry.  Co.,  108  Ga.  417,  34  S.  thirty  years  unquestioned  and  with- 

E.  6;  Augusta  &  S.  R.  Co.  v.  City  out  consent;  consent  unnecessary). 

Council  of  Augusta,  100  Ga.  701,  28  Massachusetts:  Blodgett  v.  Wor- 

S.  E.  126.  cester  Consol.    St.    Ry.   Co.    (Mass., 

Illinois:    Independent    Teleph.   &  1906),    78    N.    E.    222    (statute   au- 

Teleg.  Co.  v.  Town  of  Towanda,  221  thorizing     board     of     aldermen     to 

111.  299,  77  N.   E.  456   (statute  re-  grant  locations  subject  to  "restric- 

quires   notice    to    highway    commis-  tions"  means  "conditions"), 

sioners,  who  shall  specify  what  part  Michigan:  Monroe,  City  of,  v.  De- 

of  highway  may  be  used,  and  where  troit,  M.  &  T.  Short  Line  R.  Co.,  143 

they  fail  to  so  specify  company  lo-  Mich.    315,    106   N.    W.    704    (when 

cates    them    at    its    peril);    Chicago  statute   does   not   authorize   making 

Teleph.  Co.  v.  Northwestern  Teleph.  connections    with    other    roads    or- 

Co.,  100  111.  App.  57,  aff'd  65  N.  E.  ganized    under    general    statute    re- 

329     (requirement    that    permit    in  quiring  city's  consent  with   right  to 

writing  be  obtained;   failure  to  ob-  impose  conditions), 

tain  concerns  city  only).  Missouri:  Lawrence  v.  Hennessy, 

Indiana:  City  R.  Co.  v.  Citizens'  165  Mo.  659,  65  S.  W.  717  (city  em- 

St.  Ry.  Co.   (Ind.),  52  N.  E.  157,  1  powered  by  statute  to  give  consent 

Repr.  376  (consent  necessary);  Eich-  for  exclusive  privilege;  erection,  etc., 

els  v.  Ry.  Co.,  78  Ind.  261.  of  gas  works;  consent  of  people  un- 

Kansas:  Wichita,  City  of,  v.  necessary);  State,  Crow,  v.  Lindell 
Missouri  &  K.  Teleph.  Co.,  70  Kan.  R.  Co.,  151  Mo.  162,  52  S.  W.  248 
441,  78  Pac.  886  (cities  of  first  class  (power  over  St.  Louis'  streets  is  in 
may  determine  and  designate  streets  city  and  its  consent  necessary  to 
and  alleys  which  may  be  occupied  enable  State  to  authorize  construc- 
and  used  by  telegraph  and  telephone  tion,  etc.,  of  street  railway), 
companies);  La  Harpe,  City  of,  v.  Nebraska:  Lincoln  St.  Ry.  Co.  v. 
Elm  Township  Gaslight,  Fuel  &  City  of  Lincoln  (Neb.),  84  N.  W. 
Power  Co.,  69  Kan.  97,  76  Pac.  448  802  (ordinance  giving  consent  does 
(consent  to  lay  pipes  to  distribute  not  determine  street  railway  corn- 
natural  gas  not  required  in  cities  of  pany's  rights;  they  are  based  upon 
second  or  third  class;  right  of  emi-  the  general  law). 

608 


REGULATION  AND  CONTROL            §  379 

of  a  city,  under  contract  with  a  gas  lighting  corporation,  is 
intended  and  provided  for.61  The  term  "municipal  author- 
New  Jersey:  Suburban  Electric  Kennelly,  v.  Jersey  City,  57  N.  J. 
Light  &  Power  Co.  v.  Inhabitants  of  L.  293,  26  L.  R.  A.  281,  30  Atl.  531 
East  Orange,  59  N.  J.  Eq.  563,  44  (knowledge  by  municipal  board  of 
Atl.  628,  7  Am.  Elec.  Cas.  37  (per-  particular  tracks  intended  to  be  laid 
mission  to  erect  poles  for  electric  is  necessary  before  giving  consent); 
light  wires  required  in  incorporated  State,  Theberath,  v.  Newark  (N.  J.), 
cities  and  towns;  permission  may  30  Atl.  528  (municipality  and  not 
be  given  by  resolution  as  well  as  by  company  to  determine  location,  etc., 
ordinance;  permission  for  poles  given,  of  tracks  in  granting  consent;  un- 
whether  further  permission  for  wires  der  Act  March  14,  1893,  P.  L.  1893, 
required);  Consolidated  Traction  Co.  p.  302). 

v.  East  Orange  Township,  63  N.  J.  New  York:  Kittinger  v.  Buffalo 
L.  669,  44  Atl.  1099,  aff'g  61  N.  J.  Traction  Co.,  160  N.  Y.  377,  54  N. 
L.  202,  38  Atl.  803  (ordinance  regu-  E.  1081,  aff'g  49  N.  Y.  Supp.  713,  25 
lating  the  running  of  electric  light  App.  Div.  329  (consent  of  board  of 
wires  and  requiring  permission  to  railroad  commissioners  required  un- 
trim,  cut,  etc.,  trees  on  public  street  der  general  railroad  law  for  construc- 
or  highway  and  penalty  for  violation  tion  of  street  railways;  legislature 
of  same);  State,  Hutchinson,  v.  Bel-  has  power  in  first  instance  to  au- 
mar,  61  N.  J.  L.  443,  39  Atl.  643,  thorize  without  consent  and  may 
aff'd  62  N.  J.  L.  450  (consent  valid,  pass  curative  act  where  defect  from 
though  proviso  attached  that  street  non-consent  of  commissioners  exists); 
railroad  be  constructed  to  certain  Colonial  City  Traction  Co.  v.  King- 
point  at  specified  time);  Saddle  ston  City  R.  Co.,  153  N.  Y.  540,  47 
River  Township  v.  Garfield  Water  N.  E.  810,  4  Det.  L.  N.,  No.  31,  30 
Co.  (N.  J.  Ch.),  32  Atl.  978  (laying  Chicago  Leg.  News  73,  aff'g  44  N.  Y. 
waterpipes  in  unincorporated  vil-  Supp.  732,  15  App.  Div.  195,  re- 
lage;  consent  of  proper  authorities  hearing  denied  in  154  N.  Y.  493,  48 
necessary);  Bergen  Traction  Co.  v.  N.  E.  900  (consent  of  local  authori- 
Ridgefield  Township  Committee  (N.  ties  and  of  one-half  in  value  of  prop- 
J.  Ch.),  32  Atl.  754  (consent  of  body  erty  of  abutting  owners  to  entitle 
governing  township  or  of  township  street  railroad  company  to  use  an- 
committee  and  of  road  board  ex-  other  company's  line;  under  N.  Y. 
elusively  controlling  highways,  nee-  Const.,  art.  3,  §  18;  N.  Y.  Railroad 
essary  to  enable  street  car  company  Law,  §  91;  this  section  and  §  102  con- 
to  construct  road;  under  P.  L.  1893,  strued);  New  York  &  L.  I.  R.  Co.  v. 
p.  302,  §  1;  Act  May  16,  1894  (P.  L.  O'Brien,  100  N.  Y.  Supp.  316,  50 
374);  Avon-by-the-Sea  Land  &  I.  Misc.  13  (consent  obtained  for  build- 
Co.  v.  Neptune  City  (N.  J),  32  ing  railroad  and  tunnel  under  streets 
Atl.  220  (notice  and  consent  to  lo-  of  New  York,  and  confirmed  Laws 
cate  street  railway  under  P.  L.  1890,  N.  Y.,  1892,  p.  1450,  c.  702,  amending 
p.  113;  P.  L.  1880,  p.  185,  §  8);  State,  Laws  1890,  p.  1089,  c.  565,  §  16;  not 

81  People   v.    Littleton,   96   N.   Y.  Supp.  414,  110  App.  Div.  728,  aff'd 

185  N.  Y.  605,  78  N.  E.  1109. 

39  609 


§  379 


REGULATION    AND    CONTROL 


ities,"  in  a  statute  providing  for  the  consent  of  such  authorities 
for  the  laying  of  gas  mains  in  a  street,  is  held  to  mean,  in  New 


necessary  to  sell  franchises  at  pub- 
lic auction  as  Railroad  Law,  Laws 
1890,  p.  1082,  c.  565,  repealed  Laws 
1886,  p.  919,  c.  642);  Carthage,  Vil- 
lage of,  v.  Central  New  York  Teleph. 
&  Teleg.  Co.,  96  N.  Y.  Supp.  917,  48 
Misc.  423,  rev'd  96  N.  Y.  Supp. 
919,  110  App.  Div.  625,  rev'd  185 
N.  Y.  448,  78  N.  E.  165  (requiring 
wires  to  be  placed  underground; 
authority  of  village  trustees) ;  Trans- 
portation Corp.  Law,  Laws  1890,  p. 
1152,  c.  566,  §  102;  Village  Law,  Laws 
1897,  p.  455,  c.  414,  §340,  §89, 
subdiv.  9,  p.  394,  §  141,  p.  414;  West 
Side  Electric  Co.  v.  Consolidated 
Teleg.  &  Elec.  Subway  Co.,  96  N.  Y. 
Supp.  609,  110  App.  Div.  171  (con- 
sent of  board  of  aldermen  of  city 
of  New  York  necessary  prior  to 
charter  of  1897,  to  laying  of  electric 
wires  in  subway;  Laws  1879,  p.  562, 
c.  512,  §  2;  Laws  1887,  c.  716,  p.  929; 
Laws  1885,  p.  852,  c.  499;  Transpor- 
tation Corp.  Law,  Laws  1S90,  p.  1146, 
c.  566,  art.  6,  §  61,  subd.  2);  People  v. 
Littleton,  96  N.  Y.  Supp.  444,  110 
App.  Div.  728  (requisite  consent  to 
gas  lighting  corporation  given  by 
common  council  of  city);  Beekman 
v.  Third  Ave.  R.  Co.,  43  N.  Y.  Supp. 
174,  13  App.  Div.  279  (consent  of 
common  council  to  construction  or 
extension  of  street  railway  com- 
pany regulated  by  railroad  law); 
Case  v.  Cayuga  County,  34  N.  Y. 
Supp.  595,  68  N.  Y.  St.  Rep.  632,  88 
Hun,  59  (board  of  county  super- 
visors may  give  consent  directly 
where  county  property  abuts  on 
street  on  which  street  railroad  is  to 
be  laid);  McDermott  v.  Nassau  Elec. 
R.  Co.,  32  N.  Y.  Supp.  884,  66  N.  Y. 
St.  Rep.  202,  85  Hun,  422  (consent 
of    property    owners    where    street 

610 


railroad  bounded  on  one  side  by  pub- 
lic park;  Laws  1890,  chap.  565, 
§  91,  repealed  Laws  1894,  chap.  723, 
§91). 

Ohio:  Cincinnati  Inclined  Plane 
R.  Co.  v.  Cincinnati,  52  Ohio  St. 
609,  44  N.  E.  327  (consent  of  one  of 
two  city  boards;  concurrent  action; 
no  implied  renewal,  Stats.  1885, 
1888);  Reynolds  v.  City  of  Cleveland, 
24  Ohio  Cir.  Ct,  R.  609  (statute 
must  expressly  confer  power  on 
municipal  corporations  to  control 
and  regulate  construction,  etc.,  of 
street  railways);  State  v.  Columbus 
Ry.  Co.,  24  Ohio  Cir.  Ct.  R.  609 
(city's  consent  necessary  to  con- 
struct, etc.,  street  railway;  so  prior 
to  act  May  14,  1878,  75  Ohio  Laws, 
p.  359);  State  v.  Dayton  Traction 
Co.,  18  Ohio  Cir.  Ct.  R.  490,  10  Ohio 
C.  D.  212  (city  may  not  impose  as 
condition  to  its  consent  which  pre- 
vents the  corporation  from  exercising 
one  of  its  corporate  powers);  Mor- 
row County  Illuminating  Co.  v. 
Village  of  Mt.  Gilead,  10  Ohio  S.  & 
C.  P.  Dec.  235  (council's  consent 
necessary  to  grant  by  city  of  electric 
light  franchise). 

Pennsylvania:  Coatesville  &  D. 
St.  Ry.  Co.  v.  West  Chester  St.  Ry. 
Co.,  206  Pa.  40,  55  Atl.  844  [consent 
of  local  authorities  required  to  be 
obtained  in  two  years  under  statute 
(act  June  7,  1901,  P.  L.  516);  com- 
pany organized  thereunder  has  rights 
in  streets  in  which  it  cannot  be  dis- 
turbed for  two  years];  Plymouth 
Township  v.  Chestnut  Hill  &  N. 
R.  Co.,  168  Pa.  181,  36  W.  N.  C.  317, 
32  Atl.  19,  rev'g  4  Pa.  Dist.  R.  8, 
15  Pa.  Co.  Ct.  442,  12  Lane.  L.  Rev. 
36  (consent  may  be  burdened  with 
such  condition  that  non-compliance 


REGULATION    AND    CONTROL  §    379 

York  City,  the  municipal  assembly;  but  a  subsequent  permit 
from  the  commissioner  of  public  buildings,  lighting  and  the 
department  of  highways,  is  required  to  allow  the  corporation 
to  exercise  such  rights  in  order  that  the  public  convenience 
may  be  subserved.62  The  Electrical  Subway  Company  has 
no  power  to  refuse  an  application  for  space  in  its  conduits 
merely  because  the  commissioner  of  water  supply,  gas  and 
electricity  of  the  city  of  New  York  has  not  first  given  his 
consent,  although  under  the  rules  of  said  commissioner  such 
consent  is  required  before  electric  conductors  can  be  placed 
in  the  space  assigned  after  application  made  therefor.63  The 
individual  right  of  an  electrical  corporation,  organized  before 

therewith  will  authorize  forfeiture);  fourth    class    to    construct    electric 

Tamaqua  &  L.   St.  R.   Co.  v.  Inter-  light  and  power  plants). 

County  St.  R.  Co.,  167  Pa.  91,  36  Wisconsin:  Malone  v.  Waukesha 

W;  N.  C.   166,  31  Atl.  473,  aff'g  4  Electric  Light  Co.,  120  Wis.  485,  98 

Pa.  Dist.  R.  20  (formalities  in  grant-  N.  W.  247  (use  of  streets  was  granted 

ing  consent  to  street  railway;   when  electric  light  company  by  ordinance, 

township  not  bound);  Rahn  Town-  subject  to  direction,  etc.,  of  board  of 

ship  v.  Tamaqua  &  L.   St.   R.   Co.,  public  works,  which  failed  to  desig- 

167  Pa.  84,  36  W.  N.  C.  16.5,  31  Atl.  nate   the  particular    places    for    the 

472,  aff'g  4  Pa.  Dist.  R.  29  (line  in  poles;  abutting  owner's  consent  nec- 

several     boroughs,     consent     of     all  essary,  especially  where  trimming  of 

necessary    to    building    line    in    any  shade    trees    necessitated    to    place 

one);    Lehigh    Coal    &    Nav.    Co.    v.  poles. 

Inter-County    St.    R.    Co.,    167    Pa.  See    §§44,   48,    187,   herein;    also 

75,  36  W.   N.   C.    160,  31   Atl.   471,  Joyce    on    Electric    Law    (2d    ed.), 

rev'g  15  Pa.  Co.  Ct.  293,  12  Lane.  §§  155,  186a,  353-376. 

L.  Rev.  181   (consent  to  street  rail-  62  Ghee    v.    Northern    Union    Gas 

way  by  supervisors  void  where  con-  Co.,   158  N.  Y.   510,  53  N.   E.   692, 

sideration   is   a   condition   benefiting  rev'g  56  N.  Y.  Supp.  450,  34  App. 

the  township  officer).  Div.  551,  Transp.  Corp.  Act.,  Laws 

Virginia:   Petersburg,  City  of,  v.  1890,  c.  566,  §  61,  Greater  New  York 

Petersburg   Aqueduct   Co.,    102   Va.  Charter,   Laws    1897,    c.    378,    §§  49 

654,  47  S.   E.   848   (insolvent  water  (subdiv.  4),  416,  525,  573.     See  §  191, 

company  cannot  dig  up  city's  streets  herein. 

without  latter's  consent,  even  though  ."Long    Acre    Electric    &    Power 

it   be  conceded  that  such  consent  is  Co..  In  re,  101  N.  Y.  Supp.  460,  51 

unnecessary   under  its   charter  if  it  Misc.  407,  aff'd  in  102  N.  Y.  Supp. 

were  solvent).  242,  117  App.  Div.  SO,  aff'd  in  188 

Washington:   State  v.  Taylor,  36  N.    Y.    361,    80    N.    E.    1101.      See 

Wash.  607,  7'.)  Pac.  286  (franchises  §191,  herein, 
may    be    granted    by    cities    of    the 

611 


§  380  REGULATION  AND  CONTROL 

the  enactment  of  the  laws  of  New  York  of  1885,  creating  a 
board  of  commissioners  of  electrical  subways,  to  the  use  of 
the  streets  to  enable  them  to  lay  in  their  own  conduits  their 
electrical  conductors,  was  lost  by  said  statute  as  all  operators 
of  such  conductors  were  obligated  to  use  the  subways  devised 
by  said  board,  where  plans  submitted  to  the  board  should 
fail;  and  mandamus  in  this  case,  to  compel  the  commissioner 
of  water  supply,  gas  and  electricity  to  grant  the  electrical 
corporation  permission  to  construct  their  subway,  was  denied.64 

§  380.  Same  Subject. — In  New  Jersey  a  township  may 
properly,  in  the  exercise  of  its  powers  to  regulate  and  keep 
in  repair  streets  and  highways,  require  persons  desiring  to 
excavate  the  streets  to  obtain  a  permit  from  the  township 
committee  and  a  deposit  for  security  for  the  restoration  of  the 
street  to  its  natural  condition ;  and  an  ordinance  requiring  such 
a  permit  and  security  is  applicable  to  and  binding  upon  an 
electric  lighting  company  previously  authorized  by  statute 
and  ordinance  to  erect  poles  in  the  highways  and  streets.65 
While  it  is  true,  in  a  strict  sense,  that,  under  the  system  of 
laws  in  New  Jersey,  no  corporations  of  that  State  can  exercise 
any  municipal  franchise,  still,  many  franchises  are  granted 
by  the  legislature  upon  the  condition  that  they  shall  not  be 
exercised  without  the  consent  of  the  authorities  of  a  city 
within  whose  limits  such  franchise  is  intended  to  be  exercised; 
so  that,  under  a  statute  exempting  from  taxation  "any  cor- 
poration" which  had  not  or  might  not  "exercise  any  municipal 
franchise,"  those  corporations  were  intended  whose  right  to 
exercise    their    franchises    were    dependent    upon    municipal 

64  People  v.  Ellison,  101  N.  Y.  and  the  statute  giving  the  right  to 
Supp.  441,  51  Misc.  413,  aff'd  in  101  use  the  highways  for  the  company's 
N.  Y.  Supp.  55,  115  App.  Div.  254.  purposes  required  the  consent,  in 
See  §  191,  herein.  writing,   of  the  owners  of    the  soil, 

65  Cook  v.  Township  of  North  Ber-  which  was  obtained.  Such  power 
gen,  72  N.  J.  L.  119,  59  Atl.  1035.  to  regulate  streets  was  also  declared 
There  was  also  in  this  case  a  contract  to  be  a  branch  of  the  police  power 
between  the  township  and  the  light-  and  that  the  requirement  of  a  per- 
ing  company  for  lighting  the  streets,  mit  was  reasonable. 

612 


REGULATION  AND  CONTROL  §  380 

consent.66  Where  there  is  no  restriction  on  the  legislative 
control  of  streets  and  highways  contained  in  a  state  constitu- 
tion which  declares  the  right  of  individuals  and  corporations 
to  maintain  lines  of  telegraph  and  telephone  within  the  State, 
a  provision  in  a  statute  passed  pursuant  to  such  constitutional 
declaration  "that  where  the  right  of  way,  as  herein  contem- 
plated, is  within  the  corporate  limits  of  any  incorporated  city, 
the  consent  of  the  city  council  thereof  shall  be  first  obtained 
before  such  telegraph  or  telephone  line  can  be  erected  thereon" 
is  valid,  and  amounts  to  an  authorization  to  the  council  to 
refuse,  as  well  as  consent,  to  such  use  of  the  streets,  and  is 
not  intended  as  an  authorization  of  power  merely  to  prescribe 
reasonable  and  proper  regulations  for  the  construction  and 
operation  of  such  lines,  the  power  of  regulation  and  control 
being  amply  conferred  by  other  statutory  provisions.67  But 
a  city  cannot,  by  withholding  its  consent,  defeat  the  exercise 
of  the  right  of  eminent  domain  possessed  by  a  railroad  com- 
pany in  locating  its  line  of  road  through  a  city,  but  at  the  most 
the  only  power  of  the  municipality  would  be  to  regulate  the 
location  and  construction  of  the  road;  nor  is  the  objection 
available,  by  a  landowner  in  proceedings  for  condemnation, 
that  no  city  franchise  has  been  granted  for  the  operation  of 
such  road  in  the  city  or  to  cross  the  streets  and  alleys  thereof.68 
Provisions  for  obtaining  the  consent  of  a  majority  of  the 
electors  of  a  city  before  a  street  railway  company  is  author- 
ized to  construct  and  operate  a  street  railway  over  the  streets 
of  such  city  do  not  empower  the  city  to  grant  a  charter  to, 
or  enter  into  a  contract  in  respect  thereto  with,  such  street 
railway  company.69    An  ordinance  which  prohibits  the  laying 

88  Board  of  Assessors  v.  Plainfield  giving  city  power  to  grant  or  refuse 

Water  Supply  Co.,  67  N.  J.  L.  357,  consent. 
52  Atl.  230.  88  Memphis  &  State  Line  Rd.  Co. 

87  State  (ex  rel.  Spokane  &  British  v.  Union  Ry.  Co.,  116  Tenn.  500,  95 

Columbia  Teleph.   &  Teleg.   Co.)   v.  S.  W.  1019. 

City  of  Spokane,  24   Wash.   53,  63        69  Lincoln  St.  Ry.  Co.  v.  City  of 

Pac.  1116,  7  Am.  Elec.  Cas.  96.    See  Lincoln,  61  Neb.  109,  110,  84  N.  W. 

State  v.  Frost   (Neb.,  1907),  110  N.  808. 
W.  986,  as  to  validity  of  ordinance 

613 


§  381  REGULATION  AND  CONTROL 

of  any  pipe  in  a  public  street  "without  having  first  obtained 
from  the  board  of  trustees  of  said  city  the  franchise  or  privi- 
lege of  using  such  public  street  *  *  *  for  that  purpose," 
does  not  import  to  be  a  regulation  of  the  manner  of  doing 
work.  It  assumes  to  require  a  franchise  or  privilege  as  a 
condition  precedent  to  the  occupation  of  the  soil  at  all.70 

§381.  Regulation  of  Railroads — Delegation  to  Commis- 
sioners— Constitutional  Law — Discrimination — Generally.71 

— Railroad  corporations  are  subject  to  such  legislative  con- 
trol as  may  be  necessary  to  protect  the  public  against  danger, 
injustice  or  oppression,  and  this  control  may  be  exercised 
through  a  board  of  commissioners.72  "The  elementary  proposi- 
tion that  railroads  from  the  public  nature  of  the  business  by 
them  carried  on  and  the  interest  which  the  public  have  in  their 
operation  are  subject,  as  to  their  state  business,  to  state  regu- 
lation, which  may  be  exerted  either  directly  by  the  legislative 
authority  or  by  administrative  bodies  endowed  with  power 
to  that  end,  is  not  and  could  not  be  successfully  questioned 
in  view  of  the  long  line  of  authorities  sustaining  that  doc- 
trine." 73  The  public  power  to  regulate  railroads  and  the 
private  right  of  ownership  of  such  property  coexist  and  do 

70  Colegrove  Water  Supply  Co.  v.  Citing  Seaboard  Air  Line  v.  Florida, 
City  of  Hollywood  (Cal.,  1907),  90  203  U.  S.  261,  51  L.  ed.  175,  27  Sup. 
Pac.  1053,  1056,  per  Sloss,  J.  (a  case  Ct.  109;  Atlantic  Coast  Line  v. 
where  a  water  company  sought  to  Florida,  203  U.  S.  256,  27  Sup.  Ct. 
enjoin  the  city  from  interfering  with  108,  51  L.  ed.  174;  Chicago,  B.  & 
the  company's  rights  to  lay  pipes  Q.  R.  Co.  v.  Illinois,  200  U.  S.  561, 
across  city  streets.  Judgment  for  584,  26  Sup.  Ct.  341,  50  L.  ed.  596; 
plaintiff  was  affirmed;  the  case  Minnesota  &  St.  L.  R.  Co.  v.  Minne- 
turned,  however,  upon  plaintiff's  sota,  193  U.  S.  53,  48  L.  ed.  614, 
right  as  owner  or  licensee  of  owner  24  Sup.  Ct.  396;  Minneapolis  &  St. 
of  fee).  L.  R.  Co.  v.  Minnesota,  186  U.  S.  257, 

71  See  §§  166-170,  herein.  22  Sup.  Ct.  900,  46  L.  ed.  1151;  Wis- 

72  New  York  &  N.  E.  R.  Co.  v.  consin,  M.  &  P.  R.  Co.  v.  Jacobson, 
Bristol,  151  U.  S.  556,  14  Sup.  Ct.  179  U.  S.  287,45  L.  ed.  1194,  21  Sup. 
437,  38  L.  ed.  269.  Ct.   124;  Louisville  &  N.  R.  Co.  v. 

73  Atlantic  Coast  Line  Rd.  Co.  v.  Kentucky,  161  U.  S.  677,  695,  40  L. 
North  Carolina  Corporation  Com-  ed.  849,  16  Sup.  Ct.  714;  Pearsall  v. 
mission,  206  U.  S.  1,  19,  51  L.  ed.  Great  Northern  R.  Co.,  161  U.  S. 
933,  27  Sup.  Ct.  585,  per  White,  J.  646,  665,  40  L.  ed.  838,  16  Sup.  Ct. 

614 


REGULATION  AND  CONTROL  §  381 

not  the  one  destroy  the  other;  and  where  the  power  to  regu- 
late is  so  arbitrarily  and  unreasonably  exerted  as  to  cause 
it  to  be  in  effect  not  a  regulation,  but  an  infringement  upon 
the  right  of  ownership,  such  exertion  is  void  because  repugnant 
to  the  due  process  and  equal  protection  clause  of  the  Four- 
teenth Amendment.74  A  regulation  may  impose  no  greater 
obligation  upon  a  railroad  company  than  the  common  law 
would  have  imposed  upon  it.  This  is  illustrated  by  a  state 
constitutional  provision  that:  "All  individuals,  associations, 
and  corporations  shall  have  equal  rights  to  have  persons  and 
property  transported  over  any  railroad  in  this  State,  and  no 
undue  or  unreasonable  discrimination  shall  be  made  in  charges 
or  facilities  for  transportation  of  freight  or  passengers  within 
the  State,  and  no  railroad  company,  nor  any  lessee,  manager, 

705;  Chicago  &  Grand  Trunk  R.  Co.  mission,  206  U.  S.  1,  51  L.  ed.  933, 

v.  Wellman,  143  U.  S.  339,  12  Sup.  27  Sup.  Ct.  585.    Citing  Chicago,  B. 

Ct.  400,  30  L.  ed.  176;  Charlotte,  C.  &  Q.  R.  Co.  v.  Illinois,  200  U.  S.  561, 

&  A.  R.  Co.  v.  Gibbes,  142  U.  S.  386,  592,  50  L.  ed.  596,  26  Sup.  Ct.  341; 

35  L.  ed.  1051,  12  Sup.  Ct.  255;  Dow  Minneapolis  &   St.   Louis  R.   Co.   v. 

v.  Beidelman,  125  U.  S.  680,  31  L.  Minnesota,  186  U.  S.  257,  22  Sup. 

ed.  841,  8  Sup.  Ct.   1028;  Stone  v.  Ct.    900,   46   L.    ed.    1151;   Chicago, 

New  Orleans  &  Northeastern  R.  Co.,  M.  &  St.  P.  R.  Co.  v.  Tompkins,  176 

116    U.  S.  352,  6    Sup.  Ct.  349,  29  U.  S.  167,  172,  20  Sup.  Ct.  336,  44 

L.  ed.  651;  Stone  v.  Illinois  Central  L.  ed.  417;  Smyth  v.  Ames,  169  U.  S. 

R.  Co.,  116  U.  S.  347,  29  L.  ed.  650,6  466,  512,  42  L.  ed.  819,  18  Sup.  Ct. 

Sup.  Ct.  348, 1191;  Stone  v.  Farmers'  418;    Chicago,    B.    &   Q.    R.    Co.    v. 

Loan  &  Trust  Co.,  116  U.  S.  307,  29  Chicago,  166  U.  S.  226,  241,  41  L. 

L.  ed.  636,  6    Sup.  Ct.  334;    Illinois  ed.  979,  17  Sup.  Ct.  581;  St.  Louis 

Central  Rd.  Co.  v.  Illinois,  108  U.  S.  &  San  Francisco  R.  Co.  v.  Gill,  156 

541,  27  L.  ed.  818,  2  Sup.  Ct,  839;  U.   S.   649,  657,  39  L.  ed.  567,   15 

Rugglea   v.   Illinois,   108  U.   S.   526,  Sup.    Ct.    484;   Reagan   v.    Farmers' 

536,  2  Sup.  Ct.  832,  27  L.  ed.  812;  Loan  &  Trust  Co.  (No.  1),  154  U.  S. 

Stone  v.  Wisconsin,  94  U.  S.  181,  24  362,  399,  38  L.  ed.  1014,  14  Sup.  Ct. 

L.  ed.   102;  Winona  &  St.  Peter  R.  1047;    Chicago   &   Grand   Trunk   R. 

Co.  v.  Blake,  94  U.  S.  180,  24  L.  ed.  Co.  v.  Wellman,  143  U.  S.  339,  12 

99;  Chicago,  M.  &  St.  J'.  R.  Co.  v.  Sup.  Ct.  400,  30  L.  ed.  176;  Chicago, 

Ackley,  94  U.  S.   179,  24  L.  ed.  99;  M.  &  St.  P.  R.  Co.  v.  Minnesota,  134 

Peik  v.  Chicago  &  N.  W.  R.  Co.,  94  II.  S.  41 S,  455,  10  Sup.  Ct.  462,  33 

U.  S.  164,  24  L.  ed.  97;  Chicago,  B.  L.  ed.  970;  Stone  v.  Farmers'  Loan 

&  Q.  R.  Co.  v.  Iowa,  94  U.  S.  155,  21  &    Trust  Co.,  116  U.  S.  307,  331,  6 

L.  ed.  94.  Sup.  Ct.  334,  29  L.  ed.  636. 

74  Atlantic  Coast  Line  Rd.  Co.  v.  See  §§  166-170,  herein. 
North    Carolina    Corporation    Com- 

615 


§    3S2  REGULATION    AND    CONTROL 

or  employee  thereof,  shall  give  any  preference  to  individuals, 
associations  or  corporations  in  furnishing  cars  or  motive 
power." 75  An  order  of  the  Interstate  Commerce  Commis- 
sion is  not  a  lawful  order  and  enforceable  where  its  enforce- 
ment will  deprive  a  carrier  of  its  business  at  a  particular  place, 
as  in  case  of  an  order  to  discontinue  a  custom  of  furnishing 
cartage.76 

§  382.  Regulation  of  Railroads — Protection  Against  In- 
jury to  Persons  and  Property. — A  statute  authorizing  a  mu- 
nicipal corporation  to  require  railroad  companies  to  provide 
protection  against  injury  to  persons  and  property  confers 
plenary  power  in  those  respects  over  the  railroads  within  the 
corporate  limits.77  So  a  city,  when  authorized  by  the  legis- 
lature, may  regulate  the  speed  of  trains  within  its  limits, 
and  this  extends  to  interstate  trains  in  the  absence  of  con- 
gressional action  on  the  subject.  The  Interstate  Transit 
Railway  is  a  railway  connecting  Kansas  City,  Missouri,  with 
Kansas  City,  Kansas,  and  the  exception  of  its  trains  from 
the  general  provision  in  the  city  ordinance  respecting  the 
speed  of  trains  in  the  city  was  an  exception  entirely  within 
the  power  of  the  legislature  to  make.78  And  it  is  not  an  un- 
reasonable requirement  that  a  railroad  company  light  its  line 

75  Atchison,  T.  &  S.  F.  R.  Co.  v.  press  accommodation;  and  they  need 
Denver  &  N.  O.  R.  Co.,  110  U.  S.  not,  in  the  absence  of  a  statute,  fur- 
667,  28  L.  ed.  291,  4  Sup.  Ct.  185  nish  to  all  independent  express  cora- 
(case  reverses  15  Fed.  650),  cited  in  panies  equal  facilities  for  doing  an 
Express  Cases,  117  U.  S.  1,  29,  6  express  business  upon  their  pas- 
Sup.    Ct.   542,   628,   29   L.    ed.    791,  senger  trains. 

which  holds  that  railroad  companies  Examine  Nelson's  Interstate  Corn- 
are  not  required  by  usage,  or  by  the  merce  Commission,  pp.  48  et  seq. 
common  law,  to  transport  the  traffic  76  Detroit,  G.  H.  &  M.  Ry.  Co.  v. 
of  independent  express  companies  Interstate  Commerce  Commission,  7 
over  their  lines  in  the  manner  in  Fed.  803,  21  C.  C.  A.  103,  43  U.  S. 
which  such  traffic  is  usually  carried  App.  308. 

and    handled.      Railroad    companies        77  Hayes  v.  Michigan  Central  R.  R. 

are  not  obliged  either  by  the  com-  Co.,   Ill   U.   S.  228,  28  L.  ed.  410, 

mon  law  or  by  usage  to  do  more  as  4  Sup.  Ct.  369. 

express  carriers  than  to  provide  the        78  Erb  v.  Morasch,  177  U.  S.  584, 

public  at  large  with  reasonable  ex-  44  L.  ed.  897,  20  Sup.  Ct.  788. 

616 


REGULATION  AND  CONTROL  §  382 

by  electricity  within  a  certain  time  after  notice  of  the  passage 
of  the  ordinance  so  providing.79  Again,  a  state  statute  di- 
rected to  the  extinction  of  railway  grade  crossings  as  a  menace 
to  public  safety,  is  a  proper  exercise  of  the  police  power  of 
the  State.80  So  a  statute  is  constitutional  which  places  a 
part  of  the  burden  of  expense  necessary  to  improve  a  bridge, 
upon  a  railroad  company  benefited  thereby,  as  where  the 
bridge,  instead  of  crossing  at  grade,  spans  the  railroad,  and 
two  abutments  on  the  old  way  are  provided  for,  although 
there  is  no  technical  abandonment  of  such  way.81  A  grant 
of  a  right  of  way  over  a  tract  of  land  to  a  railroad  company 
by  a  municipal  corporation,  by  an  ordinance  which  provides 
that  the  company  shall  erect  suitable  fences  on  the  line  of 
the  road  and  maintain  gates  at  street  crossings,  is  not  a  mere 
contract,  but  is  an  exercise  of  the  right  of  municipal  legisla- 
tion, and  has  the  force  of  law  within  the  corporate  limits.82 
So  a  State  may  constitutionally  provide  by  statute,  by  a 
general  law  of  uniform  operation  for  the  indictment  of  rail- 
road companies  for  neglect  or  failure  to  furnish  pure  drinking 
water  for  passengers.83  If  railroad  commissioners  have  au- 
thority under  a  state  statute  to  investigate  the  cause  of  rail- 
road accidents  upon  notice,  and  the  enactment  empowers 
them  to  order,  after  notice  and  an  investigation  and  hearing, 

79  St.  Mary  v.  Lake  Erie  &  W.  R.  M.  R.  Co.,  73  N.  H.  597,  64  Atl. 
Co.  (Ohio),  53  N.  E.  595.  202. 

80  New  York  &  N.  E.  R.  Co.  v.  81  Bristol  County,  In  re,  193  Mass. 
Bristol,  151  U.  S.  556,  38  L.  ed.  269,  257,  79  N.  E.  339.  See  Charlotte, 
14  Sup.  Ct.  437.  Cited  in  Chicago,  Columbia  &  Atlanta  Rd.  Co.  v. 
B.  &  Q.  R.  Co.  v.  Nebraska,  170  Gibbes,  142  U.  S.  386,  35  L.  ed.  1051, 
I.  S.  57,  74,  42  L.  ed.  948,  18  Sup.  12  Sup.  Ct.  255,  45  Am.  &  Eng.  R. 
Ct.  513;  Wabash  R.  Co.  v.  Defiance,  Cas.  595;  Nashville,  C.  &  St.  L.  Ry. 
167  U.  S.  88,  99,  17  Sup.  Ct.  748,  42  v.  Alabama,  128  U.  S.  96,  32  L.  ed. 
L.  ed.  87;  Louisville  &  Nashville  Rd.  352,  9  Sup.  Ct.  28. 

v.  Kentucky,  161  U.  S.  677,  696,  40  82  Hayes  v.  Michigan  Central  R.  R. 

L.   ed.   849,   16  Sup.   Ct.   714.     See  Co.,  Ill  U.  S.  228,  4  Sup.  Ct.  369, 

New   York,  N.   II.   &  H.  R.  Co.  v.  28  L.  ed.  410.    See  Chicago,  I.  &  L. 

Wheeler   (Conn.),   45  Atl.    14;   New  Ry.  Co.  v.  Irons  (Ind.  App.,  1906), 

Haven    Steam   Sawmill  Co.    v.   City  78  N.  E.  207. 

of    New   Haven,   72   Conn.    276,  44  "Southern  Ry.  Co.  v.  State,  125 

Atl.  229     See  Blake   v.   Concord  &  Ga.  287,  54  S.  E.  160. 

C17 


§    383  REGULATION   AND    CONTROL 

such  change  in  the  manner  of  operation  of  the  road  as  shall 
be  reasonable  and  expedient  to  facilitate  public  safety,  an  order 
made,  requiring  a  change  in  the  mode  of  operation,  is  void  and 
without  jurisdiction  where  proper  notice  of  the  statutory 
proceeding  required  is  not  given.84  The  power  of  a  State  to 
create  railway  corporations,  and  such  creation  being  for 
public  purposes,  embodies  the  right  of  the  legislature  to  enact 
statutes  regulating  the  increase  of  their  capital  stock.  In 
the  exercise  of  this  right  the  legislature  may  enact  a  statute 
providing  generally  for  what  purposes  and  upon  what  terms, 
conditions  and  limitations  an  increase  of  capital  stock  may 
be  made.  Such  regulations  tend  to  prevent  secrecy  of  opera- 
tion and  accounts  by  such  public  agencies,  and  the  issue  and 
sale  of  fictitious  or  watered  stock.85 

§  383.  Regulation  of  Railroads — Providing  Stations  or 
Waiting  Rooms — Police  Power. — It  is  the  proper  duty  of  a 
railroad  company  to  establish  stations  at  proper  places,  and 
it  is  within  the  power  of  the  States  to  make  it  prima  facie  a 
duty  of  the  companies  to  establish  them  at  all  villages  and 
boroughs  on  their  respective  lines.  And  a  general  law  of 
State,  requiring  the  erection  and  maintenance  of  depots  by 
railroad  companies  on  the  order  of  the  Railroad  and  Ware- 
house Commission  under  certain  conditions  specified  in  the 
statute,  does  not  deny  the  railroad  company  the  right  to 
reasonably  manage  or  control  property  or  arbitrarily  take  its 
property  without  its  consent,  or  without  compensation  or 
due  process  of  law,  and  is  not  repugnant  to  the  Constitution 
of  the  United  States.86  It  is  a  proper  exercise  of  the  police 
power  to  require  waiting  rooms  and  stations  to  be  erected  at 
railroad  crossings ; 87  and  also  suitable  and  convenient  waiting 
rooms  kept  and  maintained  in  decent  order  and  repair  and 
fit  for  the  accommodation  of  the  public  and  subject  in  these 

"Rutland    R.    Co.,    In    re    (Vt.,  88  Minneapolis  &  St.  L.  R.  Co.  v. 

1906),  64  Atl.  233.  Minnesota,  193  U.  S.  53,  24  Sup.  Ct. 

85  State  v.  Great  Northern  Ry.  Co.,  396,  48  L.  ed.  614. 

100  Minn.  445,  10  L.  R.  A.  (N.  S.)  "State  v.   Kansas  City,  Ft.  S.  & 

250,  111  N.  W.  289.  G.  R.  Co.  (C.  C),  32  Fed.  722. 

618 


REGULATION  AND  CONTROL  §  384 

respects  to  a  certain  degree  of  supervision  or  regulation  by 
the  Railroad  Commission.88  But  a  railroad  company  cannot 
be  required  to  provide  two  detached  depots,  one  for  passen- 
gers and  another  for  freight,  in  one  town,  even  though  a 
Railroad  Commission  is  empowered  by  statute  to  provide 
sufficient  station  facilities  and  to  locate  new  depots  where 
the  railroad  company  has  selected  an  inconvenient  site.89 

§  384.  Regulation  of  Railroads — Sunday  Trains — Inter- 
state Commerce — Police  Power. — A  statute  forbidding  the 
running  of  freight  trains  on  any  railroad  in  the  State  on  Sun- 
day, and  providing  for  the  trial  and  punishment  on  convic- 
tion of  the  superintendent  of  a  railroad  company  violating 
that  provision,  although  it  affects  interstate  commerce  in  a 
limited  degree,  is  not,  for  that  reason,  a  needless  intrusion 
upon  the  domain  of  Federal  jurisdiction,  nor  strictly  a  regula- 
tion of  interstate  commerce,  but  is  an  ordinary  police  regu- 
lation designed  to  secure  the  well-being  and  to  promote  the 
general  welfare  of  the  people  within  the  State,  and  is  not 
invalid  by  force  alone  of  the  Constitution  of  the  United  States ; 
but  is  to  be  respected  in  the  courts  of  the  Union  until  super- 
seded and  displaced  by  some  act  of  Congress,  passed  in  execu- 
tion of  the  power  granted  it  by  the  Constitution.  This  is 
especially  so  where  there  is  nothing  in  such  state  legislation 
that  suggests  that  it  was  enacted  with  the  purpose  to  regulate 
interstate  commerce,  or  with  any  other  purpose  than  to  pre- 
scribe a  rule  of  civil  duty  for  all  who  on  the  Sabbath  day, 
arc  within  the  territorial  jurisdiction  of  the  State.90 

«8  Illinois  Cent.  R.  Co.  v.  Common-  89  state  v.  Yazoo  &  M.  V.  R.  Co., 

wealth  (Ky.),  52  S.  W.  818.     As  to  87  Miss.  679,  40  So.  263. 

abandonment  of  stations,  authority  B0  Hennington  v.  Georgia,  163  U.  S. 

of  railroad  commissioners  to  consent  299,  41  L.  ed.  166,  16  Sup.  Ct.  1086. 

or  refuse  to  consent  thereto  in  regard  Cited  in  Employers'   Liability  Cases 

to   existing   stations,    and    their   in-  (Howard  v.  Illinois  Central  Rd.  Co. 

ability  to  contract  so  as  to  bind  the  and  Brooks  v.  Southern  Pacific  Co.), 

State   concerning  the  establishment  207   U.    S.    463,    535    (in    dissenting 

of  stations,  see  Railroad  Company  v.  opinion   of   Moody,    J.);     Cleveland, 

Hammersley,  104  U.  S.  1,  26  L.  ed.  C.  C.  &  St.  L.  R.  Co.  v.  Illinois,  177 

629.  T    S.  511,  517,  20  Sup.  Ct.  722,  44 

619 


§    385  REGULATION    AND   CONTROL 

§  385.  Regulation  of  Railroads— Safety  Appliances  and 
Devices — Heating  Cars. — The  object  of  the  provisions  of  the 
Safety  Appliance  Acts  of  1893  and  1896,91  declaring  it  to  be 
unlawful  for  any  common  carrier  engaged  in  interstate  com- 
merce to  haul  or  permit  to  be  hauled  or  used  on  its  line  any 
car  used  in  moving  interstate  commerce  not  equipped  with 
couplers  coupling  automatically  by  impact,  and  which  can 
be  uncoupled  without  the  necessity  of  men  going  between 
the  ends  of  the  cars,  was  to  protect  the  lives  and  limbs  of 
railroad  employees  by  rendering  it  unnecessary  for  men 
operating  the  couplers  to  go  between  the  ends  of  the  cars, 
and  the  words  "used  in  moving  interstate  traffic"  occurring 
therein  are  not  to  be  taken  in  a  narrow  sense.92  The  statute 
also  includes  a  car  of  another  company  hauled  over  the  lines 
of  a  railroad  and  employed  in  moving  interstate  traffic;  so 
a  car  is  used  in  such  traffic  where,  although  belonging  to 
another  company,  it  is  received  by  a  railroad  from  the  latter 
and  taken  from  its  yards  with  the  intention  of  making  part 
of  a  train  and  moving  it  to  its  destination  in  another  State, 
and  if  it  is  not  equipped  as  provided  for  by  the  statute  as  to 
safety  appliances  the  railroad  company  so  employing  the  car 
in  transportation  is  liable  for  the  penalty  imposed  by  the 
enactment.93  The  statute  also  relates  to  all  kinds  of  cars 
running  on  the  rails,  including  locomotives  and  steam  shovel 
cars.94    And  in  holding  that  locomotive  engines  are  included 

L.  ed.  868;  Petit  v.  Minnesota,  177  92  Schlemmer  v.  Buffalo,  Rochester 

U.  S.  164,  44  L.  ed.  716,  20  Sup.  Ct.  &  Pittsburg  Ry.  Co.,  205  U.  S.  1,  57 

666;  Lake  Shore  &  Mich.  South.  Ry.  L.  ed.  681,  27  Sup.  Ct.  407,  rev'g 

Co.  v.  Ohio,  173  U.  S.  285,  289,  43  207  Pa.  198. 

L.  ed.  702,  19  Sup.  Ct.  465  (in  dis-  93  United  States  v.  Chicago,  P.  & 

senting  opinion);  Missouri,  K.  &  T.  St.  L.  Ry.  Co.,  143  Fed.  353.     See 

Ry.   Co.   v.   Haber,   169   U.    S.   613,  United  States  v.  Great  Northern  Ry. 

627,  18   Sup.  Ct.  488,  42  L.  ed.  878;  Co.,  145  Fed.  438;  United  States  v. 

Gladson   v.  Missouri,  166  U.  S.  427,  Northern  Pacific  Terminal  Co.,  144 

430,   41    L.    ed.    1064,    17    Sup.   Ct.  Fed.  861. 

627;  Pierce  v.  Van   Dusen,  78  Fed.  94  Schlemmer  v.  Buffalo,  Rochester 

699.  &  Pittsburg  Ry.  Co.,  205   U.  S.  1,  57 

91Act  of  Cong.  March  2,  1893,  §2,  L.  ed.  681,  27  Sup.  Ct.  407,  rev'g 

as  am'd  April  1 ,  1896.  207  Pa.  198. 

620 


REGULATION   AND   CONTROL  §   385 

by  the  words  "any  car"  contained  in  the  second  section  of 
the  act  of  1893 95  requiring  cars  engaged  in  interstate  com- 
merce to  be  equipped  with  automatic  couplers,  it  is  further 
decided  that  although  they  were  also  required  by  the  first 
section  of  the  act  to  be  equipped  with  power  driving-wheel 
brakes,  the  rule  that  the  expression  of  one  thing  excludes 
others  does  not  apply,  inasmuch  as  there  was  a  special  reason 
for  that  requirement  and  in  addition  the  same  necessity  for 
automatic  couplers  existed  as  to  them  as  in  respect  to  other 
cars.  A  dining  car  regularly  engaged  in  interstate  traffic 
does  not  cease  to  be  so  when  waiting  for  the  train  to  make 
the  next  trip.  The  equipment  of  cars  with  automatic  couplers 
which  will  not  automatically  couple  with  each  other  so  as  to 
render  it  unnecessary  for  men  to  go  between  the  cars  to  couple 
and  uncouple  is  not  a  compliance  with  the  law.96  Under  the 
laws  of  the  State  of  Michigan  the  commissioner  of  railroads 
has  power  to  compel  a  street  railroad  to  install  safety  appliances 
in  accordance  with  law,  the  cost  to  be  shared  between  it  and 
a  steam  railroad  occupying  the  same  street,  notwithstanding 
that  the  steam  road  is  the  junior  occupier  of  the  street.97 
And  a  statute  does  not  unconstitutionally  take  private  prop- 

The    Safety   Appliance   Acts    are,  to  rely  thereon,  the  burden  is  upon 

according   to   the   title,   intended   to  it  to  bring  itself  within  the  terms  of 

promote  the  safety  of  employees  and  the    exception;    those    who    set    up 

travellers    upon    railroads    by  com-  such  an  exception  must  establish  it. 

pelling  common  carriers  engaged  in  Schlemmer  v.   Buffalo,  Rochester  & 

interstate  commerce   to   equip  their  Pittsburg  Ry.  Co.,  205  U.  S.   1,  57 

cars    with    automatic    couplers    and  L.  ed.  681,  27  Sup.  Ct.  407,  rev'g 

continuous  brakes  and  their  locomo-  207  Pa.  198. 

tives  with  driving  wheel  brakes,  and  95  Act  of  Cong.  March  2,  1893,  27 

for  other  purposes:  for  this  act,  see  Stat.  531,  c.  196. 

Nelson's  Interstate  Commerce  Com-  °6  Johnson   v.    Southern   Pac.   Co., 

mission,  pp.  125  et  seq.  196  U.  S.  1 ,  49  L.  ed.  872,  25  Sup.  Ct. 

I'hnding  and  proof.  In  a  suit  158.  The  act  of  March  2,  1903,  32 
based  upon  the  Safety  Appliance  Act  Stat.  943,  c.  976,  was  held  to  ro- 
of March  2,  1893,  as  amended  April  1 ,  iterate  the  view  above  expressed  and 
1896,  the  plaintiff  is  not  called  upon  to  be  declaratory  thereof, 
to  negative  the  proviso  of  §  6  of  said  B7  Detroit,  Fort  Wayne,  Belle  Isle 
•irt.  cither  in  his  pleadings  or  proofs.  Ry.  v.  Osborn,  189  U.  S.  383,  47  L. 
Such  proviso  merely  creates  an  ex-  ed.  860,  23  Sup.  Ct.  — ,  aff ' g  127  Mich, 
ception,  and  if  the  defendant  wishes  219,  86  N.  W.  842. 

621 


§  386  REGULATION  AND  CONTROL 

erty  for  public  use  without  compensation  by  requiring  rail- 
road companies  to  maintain  such  safety  devices  at  crossings 
as  shall  be  reasonably  necessary  for  public  protection.98  The 
statutes  of  New  York  regulating  the  heating  of  steam  pas- 
senger cars,  and  directing  guards  and  guard  posts  to  be  placed 
on  railroad  bridges  and  trestles  and  the  approaches  thereto" 
were  passed  in  the  exercise  of  powers  resting  in  the  State 
in  the  absence  of  action  by  Congress,  and,  when  applied  to 
interstate  commerce,  do  not  violate  the  Constitution  of  the 
United  States.1 

§  386.  Regulation  of  Railroads— General  Decisions- 
Extra  Trains  for  Connections — Removal  of  Tracks — Keep- 
ing Open  Ticket  Offices — Limitation  of  Liability — Adjusting 
Damage  Claims — Separate  Cars. — It  is  within  the  power  of 
a  State  Railroad  Commission  to  compel  a  railroad  company  to 
make  reasonable  connections  with  other  roads  so  as  to  pro- 
mote the  convenience  of  the  travelling  public,  and  an  order 
requiring  the  running  of  an  additional  train  for  that  purpose, 
if  otherwise  just  and  reasonable,  is  not  inherently  unjust  and 
unreasonable  because  the  running  of  such  train  will  impose 
some  pecuniary  loss  on  the  company.2  A  city,  having  author- 
ity under  its  charter  to  change  its  streets  by  widening  or 
straightening  them,  etc.,  and  also  being  empowered  to  enact 
governmental  regulations  and  ordinances  under  a  general 
welfare  clause,  may,  when  the  act  is  not  unreasonable  or  ar- 
bitrary, compel  a  railroad  company  to  remove  its  tracks  to 
another  street  than  the  one  on  which  they  are  laid.3  And  the 
removal  of  a  spur  which  has  been  constructed  may  be  pre- 

98  State  v.  St.  Paul,  M.  &  M.  Ry.  S.  1,  51  L.  ed.  933,  27  Sup.  Ct.  585. 
Co.  (Minn.,  1906),  108  N.  W.  261.  See  Jacobson  v.  Wisconsin,  M.  &  P. 

99  Laws  N.  Y.  1887,  c.  616,  Laws  R.  Co.,  71  Minn.  519,  40  L.  R.  A. 
1888,  c.  189.  389,  74  N.  W.  893,  aff'd  Wisconsin, 

1  New  York,  N.  H.  &  H.  R.  Co.  v.  M.  &  P.  R.  Co.  v.  Jacobson,  179 
New  York,  165  U.  S.  628,  17  Sup.  Ct.  U.  S.  287,  45  L.  ed.  194,  21  Sup.  Ct. 
418,  41  L.  ed.  853.  115. 

2  Atlantic  Coast  Line  Ry.  Co.  v.  3  Atlantic  &  B.  Ry.  Co.  v.  City  of 
North  Carolina  Commission,  206  U.  Cordele,  125  Ga.  373,  54  S.  E.  155. 

622 


REGULATION  AND  CONTROL  §  386 

vented  by  a  Railroad  Commission.4  The  requirement  that 
ticket  offices  shall  be  kept  open  for  half  an  hour  prior  to  the 
departure  of  each  train  should  also  be  complied  with.5  While 
Congress  under  its  power  may  provide  for  contracts  for  inter- 
state commerce  permitting  the  carrier  to  limit  its  liability 
to  a  stipulated  valuation,  it  does  not  appear  that  Congress 
has,  up  to  the  present  time,  sanctioned  contracts  of  this 
nature;  and,  in  the  absence  of  Congressional  legislation  on 
the  subject,  a  State  may  require  common  carriers,  although 
in  the  execution  of  interstate  business,  to  be  liable  for  the 
whole  loss  resulting  from  their  own  negligence,  a  contract  to 
the  contrary  notwithstanding.  There  is  no  difference  in  the 
application  of  a  principle  based  on  the  manner  in  which  a 
State  requires  a  degree  of  care  and  responsibility,  whether 
enacted  into  a  statute  or  resulting  from  the  rules  of  law  en- 
forced in  its  courts.6  The  statute  of  South  Carolina  of  1903, 
imposing  a  penalty  of  fifty  dollars  on  all  common  carriers 
for  failure  to  adjust  damage  claims  within  forty  days  is  not, 
as  to  interstate  shipments,  unconstitutional  as  violative  of  the 
Fourteenth  Amendment,  neither  the  classification,  the  amount 
of  the  penalty  or  the  time  of  adjustment  being  beyond  the 
power  of  the  State  to  determine.  And  this  applies  in  the 
matter  of  a  small  claim,  as  small  shipments  are  the  ones  which 
especially  need  the  protection  of  penal  statutes  of  this  nature.7 
The  statute  of  the  State  of  Mississippi  of  1888,  requiring  all 
railroads  carrying  passengers  in  that  State  (other  than  street 
railroads)  to  provide  equal,  but  separate,  accommodations 
for  the  white  and  colored  races,  having  been  construed  by 
the  Supreme  Court  of  the  State  to  apply  solely  to  commerce 
within  the  State,  docs  no  violation  to  the  commerce  clause 
of  the  Constitution  of  the  United  States.8    And  in  another  case 

'Railroad   Commission   of  La.    v.  132,  48  L.  ed.  268,  aff'g  202  Pa.  222, 

Kansas  City  Southern  Ry.  Co.,  Ill  51  Atl.  990.    Decided  in  1903. 
La.  133,  35  So.  487.  7  Seaboard  Airline  Ry.  v.  Seegers, 

5  Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Dyer  207  U.  S.  73,  aff'g  73  S.  C.  71. 
(Tex.  Civ.  App.),  95  S.  W.  12.  8  Louisville,  N.  O.  &  T.  R.  Co.  v. 

•Pennsylvania     R.      R.      Co.      v.  Mississippi,  133  U.  S.  587,  33  L.  ed. 

Hughes,  191  U.  S.  477,  24  Sup.  Ct.  730,  10  Sup.  Ct.  305. 

623 


§  387  REGULATION  AND  CONTROL 

it  is  held  that  the  provisions  of  the  statute  of  Louisiana  are 
not  in  conflict  with  either  the  Thirteenth  or  the  Fourteenth 
Amendment  of  the  Federal  Constitution.  Said  enactment 
required  railway  companies  carrying  passengers  in  their 
coaches  in  that  State,  to  provide  equal,  but  separate,  ac- 
commodations for  the  white  and  colored  races,  by  providing 
two  or  more  passenger  coaches  for  each  passenger  train,  or 
by  dividing  the  passenger  coaches  by  a  partition  so  as  to 
secure  separate  accommodations;  and  providing  that  no  per- 
son shall  be  permitted  to  occupy  seats  in  coaches  other  than 
the  ones  assigned  to  them,  on  account  of  the  race  they  belong 
to;  and  requiring  the  officers  of  the  passenger  trains  to  assign 
each  passenger  to  the  coach  or  compartment  assigned  for  the 
race  to  which  he  or  she  belongs;  and  imposing  fines  or  im- 
prisonment upon  passengers  insisting  upon  going  into  a  coach 
or  compartment  other  than  the  one  set  aside  for  the  race  to 
which  he  or  she  belongs;  and  conferring  upon  officers  of  the 
trains  power  to  refuse  to  carry  on  the  train  passengers  refus- 
ing to  occupy  the  coach  or  compartment  assigned  to  them, 
and  exempting  the  railway  company  from  liability  for  such 
refusal.9 

§  387.  Regulation  of  Street  Railroad  Companies — Police 
Power. — A  municipality  under  its  right  to  make  reasonable 
regulations  concerning  the  use  of  its  streets  by  a  street  rail- 
road company  10  may  limit  the  speed  of  its  cars,11  or  the  length 

9  Plessy  v.  Ferguson,  163  U.  S.  537,  "State,  Cape  May,  D.  B.  &  S. 
16  Sup.  Ct.  1138,  41  L.  ed.  256.  P.  R.  Co.  v.  Cape  May,  59  N.  J.  L. 

10  Baltimore  v.  Baltimore  Trust  &  393,  36  Atl.  679,  36  L.  R.  A.  656,  9 
Guar.  Co.,  166  U.  S.  673,  17  Sup.  Ct.  Am.  &  Eng.  R.  Cas.  (N.  S.)  507, 
696,  41  L.  ed.  1160,  3  Va.  Law  Reg.  6  Am.  Elec.  Cas.  42;  Choquette 
189;  Joyce  on  Electric  Law  (2d  ed.),  v.  Southern  Elec.  R.  Co.  (Mo.),  53 
§  147.  See  People  v.  Geneva,  W.  S.  W.  897;  Joyce  on  Electric  Law 
S.  F.  &  C.  L.  Traction  Co.,  98  N.  Y.  (2d  ed.),  §§  463,  464. 

Supp.  719,  112  App.  Div.  581,  aff'd  Examine  the  following  cases: 

186  N.  Y.  516,  78  N.  E.  1109;  City  Alabama:    Montgomery   St.    Ry. 

of  New  York  v.   Interurban  Street  Co.  v.  Lewis  (Ala.,  1906),  41  So.  736. 

Railway  Co.,  86  N.  Y.   Supp.  673,  Delaware:     Licznerski     v.     Wil- 

43  Misc.  29;  also  §  63  (and  note  at  mington  City  Ry.  Co.  (Del.  Super.), 

p.  155),  herein.  62  Atl.  1057. 

624 


REGULATION  AND  CONTROL  §  387 

of  time  of  service  or  of  running  cars  on  certain  streets;  12 
require  the  tracks  to  be  watered  so  as  to  effectually  lay  the 
dust ;  13  provide  for  the  equipment  of  cars ; 14  require  the  em- 
ployment of  a  conductor  as  well  as  a  motorman;  15  prohibit 
the  use  of  salt  on  the  tracks,  except  at  certain  places;  16  and 
make  other  lawful  regulations  in  the  exercise  of  the  police 
power.  The  right  of  the  legislature  to  require  street  railway 
companies  in  cities  of  a  certain  class  to  pave  the  part  of  the 
streets  occupied  by  their  tracks  so  as  to  conform  with  the  im- 
provements made  in  the  remainder  of  the  streets,  or,  in  case 
they  fail  or  neglect  to  perform  such  duty,  to  authorize  the 
municipal  authorities  to  make  such  improvements,  and  by 
the  levy  of  a  special  assessment,  charge  the  cost  and  expense 
thereof  against  such  street  railway  company,  which  shall  be 
a  lien  on  its  property,  is  a  reasonable  exercise  of  the  reserve 
power  vested  in  the  legislature  and  in  no  wise  violates  or 
impairs  the  obligation  of  a  contract  with  respect  to  the  charter 
of  such  street  railway  company.17    But  it  is  held  that  a  city 

Georgia:  Hill  v.  Rome  St.  R.  Co.,  97  N.  W.  36;  State  of  Minnesota  v. 

99  Ga.  103,  24  S.  E.  866,  3  Am.  Neg.  Smith,  58  Minn.  35,  5  Am.  Elec.  Cas. 

Rep.  353.  614,  59  N.  W.  545.    Examine  State 

Missouri:  Campbell  v.  St.  Louis  v.  Whitaker,  160  Mo.  59,  60  S.  W. 

&  S.  Ry.  Co.,  175  Mo.  161,  75  S.  W.  1068;  Brooklyn  v.  Nassau  Elec.  R. 

86.  Co.,  56  N.  Y.   Supp.  609,  38  App. 

New  Hampshire:  Bly  v.  Nassau  Div.     365;     Yonkers,     City    of,     v. 

St.  R.  Co.,  67  N.  H.  474,  30  L.  R.  A.  Yonkers'  R.    Co.,   64   N.    Y.    Supp. 

303,  32  Atl.  764.  955,  51  App.  Div.  271;  Henderson  v. 

New  York:  Union  Traction  Co.  v.  Durham    Traction    Co.,    132    N.    C. 

City  of  Watervliet,  71  N.  Y.  Supp.  779, 44  S.  E.  598.    Compare  Buentc  v. 

977,  35  Misc.  392.  Pittsburg,  A.  &  M.  Tract.  Co.,  2  Pa. 

Ohio:  Lewis  v.  Cincinnati  St.  Ry.  Super.  Ct.  185. 
Co.,  10  Ohio  S.  &  C.  P.  Dec.  53.  15  Danville  St.  Car  Co.  v.  Wood- 

12  People  v.   Detroit  Citizens'  Ry.  ing  (Danville,  Va.,  C.  C),  2  Va.  L. 
Co.,  116  Mich.   132,  74  N.  W.  520,  Reg.  244. 

4  Det.  L.  N.  1198, 16  Nat.  Corp.  Rep.  I6  State,    Consol.     Tract.    Co.,    v. 

436,  11  Am.  &  Eng.  R.  Cas.  (N.  S.)  Elizabeth,  58  N.  J.  L.  619,  32  L.  R.  A. 

798.  170,  34  Atl.  146,  3  Am.  &  Eng.  R. 

13  State  v.  Canal  &  C.  R.  Co.,  50  Cas.  (N.  S.)  614. 

La.  Ann.  1189,  24  So.  265.  "Lincoln  St.  Ry.  Co.  v.  City  of 

11  People  v.   Detroit    United  Rail-  Lincoln,  61  Neb.  109,  110,84  N.  W. 

way  (Mich.),  10  Det.  L.  News,  648,  808.      See    Amsterdam,   City  of.   v. 
40  625 


§  387  REGULATION  AND  CONTROL 

has  no  right  under  its  police  powers  to  adopt  an  ordinance 
requiring  a  motorman  to  "keep  a  vigilant  watch  for  all  vehicles 
on  the  track  or  moving  towards  it,  and  on  the  first  appear- 
ance of  danger  to  such  vehicle,  to  stop  the  car  in  the  shortest 
time  and  space  possible."  To  make  such  an  ordinance  bind- 
ing it  should  appear  that  the  railroad  company  on  accepting 
its  franchise  from  the  city  and  in  consideration  thereof  under- 
took and  agreed  to  obey  the  provisions  of  such  ordinance. 
Such  an  agreement  would  create  a  contractual  liability  on 
its  part,  which  did  not  exist  at  common  law,  but  which  was 
necessary  to  bind  it.  Laws  controlling  the  liability  of  citizens 
inter  se,  must  emanate  from  the  legislature,  in  whom  alone 
such  power  is  vested  by  the  Constitution.18    Again  a  municipal 

Fonda,  J.  &  Y.  R.  Co.,  101  N.  Y.  lice  regulations  control  the  citizen  in 
Supp.  694,  51  Misc.  438,  aff'd  104  respect  to  his  relations  to  the  city, 
N.  Y.  Supp.  411;  Weed  v.  City  of  representing  the  public  at  large, 
Bingham  ton,  71  N.  Y.  Supp.  282,  and  for  this  reason  are  enforcible  by 
62  App.  Div.  525;  also  §§337  (and  fine  and  imprisonment,  but  laws  con- 
note 69),  338,  herein.  trolling  the  liability  of  the  citizens 
18  Sanders  v.  Southern  Elec.  Ry.  inter  esse,  must  emanate  from  the 
Co.,  147  Mo.  411,  48  S.  W.  855.  legislature  in  whom  alone  such 
The  court  (at  pp.  425-427),  per  power  is  vested  by  the  constitution 
Marshall,  J.,  said:  "This  precise  or-  [Norton  v.  City  of  St.  Louis,  97  Mo. 
dinance  regulation  underwent  ad-  537,  11  S.  W.  242;  City  of  St.  Louis  v. 
judication  by  this  court  in  Fath  v.  Connecticut  Mut.  Life  Ins.  Co.,  107 
Tower  Grove  &  Lafayette  Ry.  Co.,  Mo.  92,  17  S.  W.  637;  Heeney  v. 
105  Mo.  537,  and  Sherwood,  J.,  Sprague,  11  R.  I.  456;  Railroad  Co. 
said:  'Proceeding  then  to  inquire  v.  Ervin,  89  Pa.  71;  Vandyke  v. 
into  the  validity  of  the  ordinance,  City  of  Cincinnati,  1  Disn.  532; 
it  may  be  admitted  at  the  outset,  Flynn  v.  Canton  Co.,  40  Md.  312; 
that  it  is  beyond  the  power  of  a  Jenks  v.  Williams,  115  Mass.  217; 
municipal  corporation  by  its  leg-  Kirby  v.  Association,  14  Gray  (Mass.), 
islative  action  directly  to  create  a  249.]  A  provision  of  the  charter  of 
"civil  duty,  enforcible  at  common  a  city,  whether  the  charter  be 
law;"  for  this  is  an  exercise  of  power  granted  by  an  act  of  the  legislature, 
of  sovereignty  belonging  to  the  or  be  adopted  by  the  people  of  the 
State.'  *  *  *  The  legislature  city  pursuant  to  the  power  conferred 
may  delegate  a  part  of  the  police  by  art.  9  of  the  constitution  which 
power  of  the  State  to  a  municipality,  takes  the  place  and  has  the  force  of  a 
but  it  cannot  delegate  the  legislative  legislative  act,  stands  on  a  totally 
functions  of  making  laws  that  will  be  different  plane  from  an  ordinance  of 
binding  upon  citizens  between  them-  a  city  passed  under  its  police  power. 
selves  in  civil  proceedings.     The  po-  The  latter  creates  no  new  right  or 

626 


REGULATION    AND    CONTROL 


§  387 


ordinance  regulating  the  speed  of  cars  used  upon  a  street 
railroad  is  within  the  city's  police  power  and  applies  not  only 
to  all  territory  within  the  corporate  limits  but  also  to  sub- 
sequently acquired  territory  and  affords  a  sufficient  basis  for 
an  action  for  a  personal  injury  due  to  its  breach.19 


remedy  between  citizens;  is  enforcible 
only  by  quasi  civil-criminal  pro- 
ceedings, and  creates  a  municipal 
misdemeanor.  The  former  is  as 
much  a  law  of  the  State  as  if  it  had 
been  enacted  by  the  legislature.  The 
legislature  under  its  reserve  powers 
in  the  constitution  may  repeal  or 
amend  it,  but  until  it  does  so,  the 
provision  of  the  organic  law  is  a 
valid  regulation  and  is  binding  upon 
citizens,  both  in  their  relation  to  the 
city  and  among  themselves.  The 
reason  is  that  the  people — the  source 
of  all  power — conferred  the  right,  by 
the  constitution,  upon  the  city  to 
so  legislate  by  its  organic  law,  just 


as  they  granted  the  legislative 
power  generally  to  the  General 
Assembly,  or  the  judicial  power  to 
the  courts." 

But  compare  Gray  v.  St.  Paul 
City  Ry.  Co.,  87  Minn.  280,  91  N. 
W.  1106,  12  Am.  Neg.  Rep.  604; 
Meyers  v.  St.  Louis  Transit  Co. 
(Mo.  App.),  73  S.  W.  379;  Gebhart 
v.  St.  Louis  Transit  Co.  (Mo.  App.), 
71  S.  W.  448;  J.  F.  Conrad  Grocer 
Co.  v.  St.  Louis  &  M.  R.  R.  Co.,  89 
Mo.  App.  391. 

19  Deneen  v.  Houghton  County  St. 
Ry.  Co.,  150  Mich.  235,  14  Det.  Leg. 
News,  670,  113  N.  W.  1126. 


627 


REGULATION  AND  CONTROL  CONTINUED — 


CHAPTER  XXIII. 


REGULATION  AND  CONTROL  CONTINUED — RATES  AND  CHARGES. 


389. 


390. 


388.  Regulation  of  Gas  and  Natu- 
ral Gas  Companies — Police 
Power. 

Regulation  of  National 
Banks. 

Regulation  of  Rates — Gen- 
eral Rules. 

391.  Regulation  of  Public   Ware- 

houses and  Their  Charges — 
Munn  v.  Illinois. 

392.  Regulation    of    Gas    Rates — 

Method  of  Valuation — 
Penalty — Equity — Injunc- 
tion. 

393.  Regulation  of  Water  Rates — 

Obligation  of  Contracts — 
Due  Process  of  Law — 
Equal  Protection  of  Laws 
— Reservation  of  Power  to 
Amend. 

394.  Regulation    of   Water   Rates 

Continued — Obligation  of 
Contracts — Defense  That 
Franchise  Has  Expired. 

395.  Regulation    of   Water   Rates 

C  o  n  t  i  n  u  ed — Illustrative 
Decisions. 

396.  Regulation    of    Ferry    Fares 

and  Tolls. 

397.  Regulation  of  Rates  or  Tolls 

of  Turnpike  Companies — 
Due  Process  of  Law — 
Power  of  Courts. 

398.  Regulation   of   Fares — Street 

Railways — Obligation  of 
Contract. 

628 


§  399.  Regulation  of  Fares — Street 
Railways  Continued — Con- 
stitutional Law — Contract 
with  Company  —  Altera- 
tion. 

400.  Regulation    of    Rates — Rail- 

roads. 

401.  Regulation    of    Rates — Rail- 

roads— Power  of  Railroad 
and  Like  Commissioners. 

402.  Railroads  —  Regulation       of 

Rates  by  Congress — Reser- 
vation of  Right  to  Alter  or 
Amend. 

403.  Object    of    Interstate    Com- 

merce Act — Powers  and 
Jurisdiction  of  Interstate 
Commerce  Commission. 

404.  Regulation    of    Rates — Rail- 

roads —  Interstate  Com- 
merce— Taxation  of  Freight 
or  Passengers. 

405.  Regulation    of    Rates — Rail- 

roads— Non-user  of  Legis- 
lative   Power — Lessee. 

406.  Regulation    of    Rates — Rail- 

roads— Reasonableness  of 
Rates — Confiscatory  Rates 
— Due  Process  of  Law — 
Equal  Protection  of 
Laws. 

407.  Railroad  s — Unreasonable 

Rate  Regulation — Judicial 
Inquiry — Due  Process  of 
Law — Equal  Protection  of 
the  Laws. 


RATES    AND    CHARGES 


388 


408.  Railroad — Rates     Fixed     by 

Legislative  Action  Pre- 
sumed Reasonable — Rail- 
road Commission  —  Due 
Process  of  Law. 

409.  Railroads — Test    of    Reason- 

ableness of  Rates  Pre- 
scribed by  State — Practice 
— Findings. 

410.  Regulation    of    Rates — Rail- 

road in  Two  or  More  States 
— Continuous  Line — Con- 
solidation— Test  of  Rea- 
sonableness of  Rate — Pen- 
alties— Defense. 

411.  Railroad — Arbitrary  Regula- 

tion of  Rates — Mileage 
Tickets — Discrimination  — 
Due  Process  of  Law- 
Equal  Protection  of  the 
Laws. 

412.  Right  of  Carrier  to  Fix  Rates 


—To  What  Extent  Legis- 
lative Power  Affected 
Thereby  —  Exemptions  — 
Right  to  Create  Railroad 
Commission  —  Power  to 
Amend,  etc.,  Successor 
Company — Obligation  of 
Contracts. 
§  413.  Right  of  Carrier  to  Fix  Rates 
— Basis  Upon  Which  Fixed. 

414.  Right  of  Carrier  to  Fix  Rates 

in  Competition — Long  and 
Short  Hauls — Discrimina- 
tion. 

415.  Right  of  Carrier  to  Fix  Rates 

in  Competition  Continued 
— Interstate  Commerce — 
Presumption  of  Good  Faith 
— Discrimination. 

416.  Railroad    Rates  —  Excessive 

Penalties — Equal  Protec- 
tion of  Law. 


§  388.  Regulation  of  Gas  and  Water  Companies— Police 
Power.1 — In  granting  the  exclusive  franchise  to  supply  gas  to 
a  municipality  and  its  inhabitants,  a  state  legislature  does  not 
part  with  the  police  power  and  duty  of  protecting  the  public 
health,  the  public  morals  and  the  public  safety,  as  one  or  the 
other  may  be  affected  by  the  exercise  of  that  franchise  by  the 
grantee.2  And  it  constitutes  a  proper  exercise  by  the  legisla- 
ture of  the  police  power  to  regulate  the  pressure  of  natural  gas 
in  pipes  although  such  exercise  of  power  should  not  amount  to 
oppression.3  So  where  a  court  has  jurisdiction  over  such  mat- 
ters it  may  direct  a  company  to  lay  its  pipes  for  natural  gas 
below  the  surface  of  the  ground.4    Where  a  state  statute  pro- 


1  See  §§  16,  82-84,  160,  186,  194, 
198,  374,  herein,  as  to  franchises,  etc., 
of  gas  and  natural  gas  companies. 

2  New  Orleans  Gas  Co.  v.  Louisiana 
Light  Co.,  115  U.  S.  650,  29  L.  ed. 
516,  6  Sup.  Ct.  252. 

3  Jamieson  v.  Indiana  Nat.  Gas.  & 
O.  Co.,  128  Ind.  555,  12  L.  R.  A.  652, 


28  N.  E.  76,  10  Ry.  &  Corp.  L.  J.  163, 
41  Alb.  L.  J.  145.  Examine  as  to 
principle  involved  Consolidated  Gas 
Co.  v.  City  of  New  York  (C.  C),  157 
Fed.  849,  considered  under  §  392, 
herein,  and  note  as  to  regulation  of 
pressure  of  gas. 

*  Kiskiminetas  Township  v.  Cone- 

629 


§   389  REGULATION    AND   CONTROL   CONTINUED — 

vided :  "That  it  shall  be  unlawful  for  any  person,  firm  or  corpo- 
ration having  possession  or  control  of  any  natural  gas  or  oil 
well,  whether  as  a  contractor,  owner,  lessee,  agent  or  manager, 
to  allow  or  permit  the  flow  of  gas  or  oil  from  any  such  well  to 
escape  into  the  open  air  without  being  confined  within  such 
well  or  proper  pipes,  or  other  safe  receptacle,  for  a  longer  period 
than  two  days  next  after  gas  or  oil  shall  have  been  struck  in 
such  well ;  and  thereafter  all  such  gas  or  oil  shall  be  safely  and 
securely  confined  in  such  well,  pipes  or  other  safe  and  proper 
receptacles,"  it  was  held  that  such  enactment  did  not  violate 
the  Federal  Constitution;  and  its  enforcement  as  to  persons 
whose  obedience  to  its  commands  were  coerced  by  injunction, 
did  not  constitute  a  taking  of  private  property  without  ade- 
quate compensation,  and  did  not  amount  to  a  denial  of  due 
process  of  law,  contrary  to  the  provisions  of  the  Fourteenth 
Amendment  of  the  Constitution,  but  was  only  a  regulation  by 
the  State  of  a  subject  especially  within  its  lawful  authority.5 
A  State  may  also  limit  the  right  of  eminent  domain  to  such 
gas  and  oil  corporations  as  are  doing  business  with  and  fur- 
nishing supplies  to  customers  within  that  State,  and  such  exer- 
cise of  power  does  not  constitute  an  interference  with  interstate 
commerce.6  But  a  State  may  not  interfere  with  interstate  com- 
merce by  enactments  which  substantially  prevent  the  trans- 
portation of  natural  gas  beyond  the  state  limits  where  such 
legislation  is  not  a  police  regulation.7 

§  389.  Regulation  of  National  Banks.8 — Congress  having 
power  to  create  a  system  of  national  banks,  is  the  judge  as  to 
the  extent  of  the  powers  which  should  be  conferred  upon  such 
banks,  and  has  the  sole  power  to  regulate  and  control  the  ex- 


maugh  Gas  Co.,  14  Pa.  Super.  Ct.  67.  Harless,  131  Ind.  446,  29  N.  E.  1062, 

See  §§  171  et  seq.,  herein.  15  L.  R.  A.  505. 

5  Ohio  Oil  Co.  v.  Indiana  (No.  1),  'Benedict  v.  Columbus  Construc- 

177   U.    S.    190,   44   L.   ed.    429,  20  tion  Co.  (N.  J.  Ch.),  23  Atl.  485,  35 

Sup.    Ct.    576;    Ind.    Act,    March    4,  Am.  &  Eng.  Corp.  Cas.  637. 

1893.  8See  §§  18,  69,  126,  herein,  as  to 

•Consumers'    Gas    Trust    Co.     v.  franchises,  etc.,  of  banks. 

630 


RATES    AND    CHARGES  §    389 

ercise  of  their  operations.9    States  have  no  power  to  enact  leg- 
islation contravening  Federal  laws  for  the  control  of  national 
banks,  but  such  banks  are,  for  actions  against  them  in  law  or 
in  equity,  deemed  citizens  of  the  State  in  which  they  are  lo- 
cated, and  the  Federal  courts  have  such  jurisdiction  only  as 
they  have  in  cases  between  individual  citizens  of  the  same 
States.10    Again,  while  a  State  has  the  legitimate  power  to  de- 
fine and  punish  crimes  by  general  laws  applicable  to  all  per- 
sons within  its  jurisdiction,  and  it  may  declare,  by  special  laws, 
certain  acts  to  be  criminal  offenses  when  committed  by  officers 
and  agents  of  its  own  banks  and  institutions,   it  is  without 
lawful  power  to  make  such  special  laws  applicable  to  banks 
organized  and  operated  under  the  laws  of  the  United  States. 
So  Congress  having  dealt    directly   with   the    insolvency   of 
national  banks  by  giving  control  to  the  Secretary  of  the  Treas- 
ury and  the  Comptroller  of  the  Currency,  who  are  authorized 
to  suspend  the  operations  of  the  banks  and  appoint  receivers 
thereof  when  they  become  insolvent,   or  when  they  fail  to 
make  good  any  impairment  of  capital,  and  full  and  adequate 
provision  having  been  made  for  the  protection  of  creditors  of 
national  banks  by  requiring  frequent  reports  to  be  made  of 
their  condition,   and  by  the  power  of  visitation  of  Federal 
officers,  it  is  not  competent  for  state  legislatures  to  interfere, 
whether   with   hostile   or   friendly    intentions,    with   national 
banks  or  their  officers  in  the  exercise  of  the  powers  bestowed 
upon  them  by  the  general  government.11    The  doctrine,  how- 
ever, which  exempts  the  instrumentalities  of  the  Federal  gov- 
ernment from  the  influence  of  state  legislation,  is  not  founded 
on  any  express  provision  of  the  Constitution,  but  in  the  implied 
necessity  for  the  use  of  such  instruments  by  the  Federal  gov- 
ernment.   It  is,  therefore,  limited  by  the  principle  that  state 
legislation,  which  does  not  impair  the  usefulness  or  capability 

•Eastern  v.  Iowa,  188  U.  S.  220,        »  Easton  v.  Iowa,  188  U.  S.  220, 
23  Sup.  Ct.  288,  47  L.  ed.  452.  47    L.    ed.    452,    23    Sup.    Ct.    288. 

10  Guthrie  v.  Harkness,  199  U.  S.    Examine     Farmers'     Deposit     Nat. 
148,  50  L.  ed.  — ,  20  Sup.  Ct.  — .  Bank  v.  Western  Pennsylvania  Fuel 

As  to  "citizens"  see  §  67,  herein.    Co.,  215  Pa.  115,  61  Atl.  374. 

631 


§   390  REGULATION    AND   CONTROL   CONTINUED — 

of  such  instruments  to  serve  that  government,  is  not  within 
the  rule  of  prohibition.  And  a  state  law  requiring  the  national 
banks  to  pay  a  tax  which  is  rightfully  laid  on  the  shares  of 
its  stock  is  valid  under  this  limitation  of  the  doctrine.12  But  the 
proposition  that  it  is  only  when  a  state  law  incapacitates  a 
national  bank  from  discharging  its  duties  to  the  government 
that  it  becomes  unconstitutional,  and  the  other  proposition 
that  national  banks  are  instrumentalities  of  the  Federal  gov- 
ernment, created  for  a  public  purpose,  and  as  such  necessarily 
subject  to  the  paramount  authority  of  the  United  States, 
although  distinct  propositions,  are  nevertheless  harmonious.13 

§  390.  Regulation  of  Rates— General  Rules.14— We  have 
seen  that  the  state  legislature  has  power  to  regulate  public 
service  corporations  within  constitutional  limitations,  and  it 
may  be  stated  here  that  the  rates  to  be  charged  by  such  cor- 
porations may,  within  such  limitations,  be  prescribed  by  the 
legislature  either  directly  or  by  delegation  of  the  power  to 
proper  subordinate  bodies  or  appropriate  agencies,  provided 
that  the  rates  so  fixed  are  such  as  to  afford  a  reasonable  com- 
pensation for  the  service  rendered;  property  must  not  be  con- 
fiscated by  an  unreasonable  rate  regulation;  what  constitutes 
a  reasonable  compensation  or  rate  is,  however,  a  question 
which  must  be  decided  in  each  particular  case  as  no  rule  can 
be  stated  as  a  basis  applicable  to  all  cases ;  although  the  courts 
may  determine  whether  the  rate  fixed  by  legislative  authority 
is  a  reasonable  one,  still  they  have  no  power  to  fix  rates  for  the 
future.15  These  rules  will  be  more  fully  considered  and  illus- 
trated under  the  sections  next  following  in  this  chapter. 

12  National  Bank  v.  Common-  Savings  Bank,  161  U.  S.  275,  40 
wealth,  9  Wall.   (76  U.  S.)  353,  19    L.  ed.  777,  16  Sup.  Ct.  641. 

L.  ed.  701.  14See  §  369,  herein. 

13  McClellan  v.  Chipman,  164  U.  S.  15  United  States:  Milwaukee  R.  & 
347,  41  L.  ed.  461,  17  Sup.  Ct.  — ,  L.  Co.  v.  Milwaukee,  87  Fed.  577; 
aff'g,  on  the  first  point,  National  Old  Colony  Trust  Co.  v.  Atlanta,  83 
Bank  v.  Commonwealth,  9  Wall.  Fed.  39;  New  Memphis  Gas  Light 
(76  U.  S.)  353,  19  L.  ed.  701,  and,  on  Co.  v.  City  of  Memphis,  72  Fed.  952; 
the  second  point,   Davis  v.   Elmira  Ames  v.  Union  Pacific  Ry.  Co.,  64 

632 


RATES    AND    CHARGES 


§  391 


§391.  Regulation  of  Public  Warehouses  and  Their 
Charges — Munn  v.  Illinois.16— The  State  has  power  to  fix  the 
maximum  charges  for  receiving,  elevating,  storing  and  dis- 
charging grain  and  to  regulate  warehouses,  and  such  enact- 
ments are  not  unconstitutional  as  an  interference  with  inter- 
state commerce.     In  the  well-known  case  of  Munn  v.  Illinois,17 


Fed.  165;  Louisville  &  N.  R.  Co.  v. 
Railroad  Commission,  19  Fed.  679. 
(Other  United  States  cases  are  spe- 
cially considered  throughout  this 
chapter.) 

California:  Redlands  L.  &  C.  Do- 
mestic Water  Co.  v.  Redlands,  121 
Cal.  312. 

Colorado:  Leadville  Water  Co.  v. 
City  of  Leadville,  22  Colo.  297.,    • 

Illinois:  Chicago,  Burlington  & 
Quincy  Ry.  Co.  v.  Jones,  149  111.  361, 
24  L.  R.  A.  141;  Clinton  Electric 
Light,  H.  &  P.  Co.  v.  Snell,  95  111. 
App.  552;  People's  Gas  Light  &  Coke 
Co.  v.'  Hale,  94  111.  App.  406. 

Iowa:  Des  Moines  v.  Des  Moines 
Waterworks  Co.,  95  Iowa,  348; 
Burlington,  C.  R.  &  N.  R.  Co.  v. 
Day,  82  Iowa,  312,  12  L.  R.  A.  436. 

Kentucky:  Louisville  &  N.  R.  Co. 
v.  Comm,  99  Ky.  132,  33  L.  R.  A.  20. 

Massachusetts:  Turner  v.  Re- 
vere Water  Co.,  171  Mass.  329; 
Opinion  of  Justices,  150  Mass.  592. 

Michigan:  Alpena  Electric  Co.  v. 
City  of  Alpena,  130  Mich.  413; 
Mitchell  v.  City  of  Negaunee,  113 
Mich.  359;  Pingree  v.  Mutual  Gas 
Co.,  107  Mich.  156. 

Minnesota:  St.  Paul  Gas  Light 
Co.  v.  City  of  St.  Paul,  91  Minn.  521. 

Mississippi:  Gould  v.  Edison 
Electric  Ilium.  Co.,  29  Miss.  242. 

Missouri:  State  v.  Allen,  178  Mo. 
555;  State  v.  Laclede  Gas  Light  Co., 
102  Mo.  App.  472. 

Nebraska:  Wabaska  Electric  Co. 
v.  City  of  Wymoro,  00  Neb.  199. 


North  Carolina:  Leavell  v.  West- 
ern Union  Teleg.  Co.,  116  N.  C.  211, 
5  Am.  Elec.  Cases,  689,  21  S.  E.  391; 
State,  Railroad  Commission,  v.  West- 
ern Union  Teleg.  Co.,  113  N.  C.  213, 
4  Am.  Elec.  Cases,  586,  18  S.  E. 
389. 

Ohio:  Hamilton  &  Dayton  R.  Co. 
v.  Bowling  Green,  57  Ohio  St.  336; 
Cincinnati  Gas  Light  &  Coke  Co.  v. 
Avondale,  43  Ohio  St.  257. 

Pennsylvania:  Brymer  v.  Butler 
Water  Co.,  179  Pa.  231. 

Wisconsin:  Shepard  v.  Milwaukee 
Gas  Light  Co.,  6  Wis.  539. 

As  to  rates  and  charges  in  the  case 
of  telegraph  and  telephone,  etc.,  com- 
panies using  electricity,  see  Joyce  on 
Electric  Law  (2d  ed.),  §§  57,  518- 
5276,   783d. 

Power  of  municipality  to  regulate 
and  fix  charges  for  telephone  com- 
panies— Police  power — Validity  of 
ordinance — Obligation  of  contract — 
Equal  protection  of  laws — Unlawful 
discrimination,  see  Home  Telep.  & 
Teleg.  Co.  v.  City  of  Los  Angeles 
(C.  C),  155  Fed.  554. 

Franchise  as  property,  see  §§  25- 
29,  35,  36,  herein. 

As  to  obligation  of  contracts  and 
reservation  of  power  to  alter  or  amend, 
see  §§  317  et  seq.,  herein. 

'•See  §§  113,  161,  herein,  as  to 
storage  and  elevator  companies  and 
grain  and  warehouse  commission. 
Sec  also  §§  369,  390,  herein. 

17  94  U.  S.  113,  24  L.  ed.  77. 

633 


§    391  REGULATION    AND   CONTROL  CONTINUED — 

which  has  been  extensively  cited,  quoted  from,  and  relied  upon, 
a  statute  of  Illinois  prescribed  charges  for  warehouses  and  the 
validity  of  the  statute  was  in  question.  The  following  points 
were  decided:  (1)  Under  the  powers  inherent  in  every  sov- 
ereignty, a  government  may  regulate  the  conduct  of  its  citi- 
zens toward  each  other,  and,  when  necessary  for  the  public 
good,  the  manner  in  which  each  shall  use  his  own  property. 
(2)  In  their  exercise  it  has  been  customary  in  England  from 
time  immemorial,  and  in  this  country  from  its  first  coloniza- 
tion, to  regulate  ferries,  common  carriers,  hackmen,  bakers, 
millers,  wharfingers,  innkeepers,  etc.,  and  in  so  doing  to  fix 
a  maximum  of  charge  to  be  made  for  services  rendered,  ac- 
commodations furnished  and  articles  sold.  (3)  Down  to  the 
time  of  the  adoption  of  the  Fourteenth  Amendment,  it  was 
not  supposed  that  statutes  regulating  the  use,  or  even  the  price 
of  the  use,  of  private  property,  necessarily  deprived  an  owner, 
of  his  property  without  due  process  of  law.  Under  some  cir- 
cumstances they  may,  but  not  under  all.  The  amendment 
does  not  change  the  law  in  this  particular;  it  simply  prevents 
the  States  from  doing  that  which  will  operate  as  such  a  depriva- 
tion. (4)  When  the  owner  of  property  devotes  it  to  a  use  in 
which  the  public  has  an  interest,  he  in  effect  grants  to  the  pub- 
lic an  interest  in  such  use,  and  must,  to  the  extent  of  that  in- 
terest, submit  to  be  controlled  by  the  public,  for  the  common 
good,  as  long  as  he  maintains  the  use.  He  may  withdraw  his 
grant  by  discontinuing  the  use.  (5)  The  limitation  by  legis- 
lative enactment  of  the  rate  of  charge  for  services  rendered 
in  a  public  employment,  or  for  the  use  of  property  in  which 
the  public  has  an  interest,  establishes  no  new  principle  in  the 
law  but  only  gives  a  new  effect  to  an  old  one.  (6)  Where 
warehouses  are  situated  and  their  business  is  carried  on  ex- 
clusively within  a  State,  she  may,  as  a  matter  of  domestic  con- 
cern, prescribe  regulations  for  them,  notwithstanding  they  are 
used  as  instruments  by  those  engaged  in  interstate,  as  well  as 
in  state,  commerce;  and,  until  Congress  acts  in  reference  to 
their  interstate  relations,  such  regulations  can  be  enforced, 
even  though  they  may  indirectly  operate  upon  commerce  be- 
634 


RATES    AND    CHARGES 


§  391 


yond  her  immediate  jurisdiction.  (7)  The  court  does  not  hold 
that  a  case  may  not  arise  in  which  it  may  be  found  that  a 
State  has,  under  the  form  of  regulating  her  own  affairs,  en- 
croached upon  the  exclusive  domain  of  Congress  in  respect  to 
interstate  commerce.  (8)  The  ninth  section  of  the  first  article 
of  the  Constitution  of  the  United  States  operates  only  as  a 
limitation  of  the  powers  of  Congress,  and  in  no  respect  affects 
the  States  in  the  regulation  of  their  domestic  affairs.  (9)  The 
act  of  the  General  Assembly  of  Illinois,  entitled:  "An  Act  to 
regulate  public  warehouses  and  the  warehousing  and  inspec- 
tion of  grain,  and  to  give  effect  to  art.  13  of  the  constitution 
of  this  State,"  18  is  not  repugnant  to  the  Constitution  of  the 
United  States.19    In  another  case  an  act  of  the  legislature  of 


18  Approved  April  25,  1871. 

19  Another  point  was  decided  in 
this  case  and  is  stated  in  §  297, 
herein. 

This  case  is  explained  on  first  point 
in  Dobbins  v.  Los  Angeles,  195  U.  S. 
223,  235,  25  Sup.  Ct.  18,  49  L.  ed. 
169,  cited  to  same  point  in  Minne- 
apolis &  St.  Louis  Rd.  Co.  v.  Minne- 
sota, 186  U.  S.  257,  261,  46  L.  ed. 
1151,  22  Sup.  Ct.  900;  Mugler  v. 
Kansas,  123  U.  S.  623,  660,  31  L.  ed. 
205,  8  Sup.  Ct.  273;  Home  Te'leph.  & 
Teleg.  Co.  v.  City  of  Los  Angeles 
(C.  C),  155  Fed.  554,  561;  Perkins  v. 
Northern  Pac.  Ry.  Co.  (C.  C),  155 
Fed.  445,  453;  Muskogee  Nat.  Teleph. 
Co.  v.  Hall,  118  Fed.  382,  386.  Cited 
to  second  point  in  Minneapolis  &  St. 
Louis  Rd.  Co.  v.  Minnesota,  186 
U.  S.  257,  261,  22  Sup.  Ct.  900,  46 
L.  Ed.  1151;  Lake  Shore  &  M.  S.  Ry. 
Co.  v.  Smith,  173  U.  S.  684,  696,  19 
Sup.  Ct.  565,  43  L.  ed.  858;  Inter- 
state Commerce  Comm.  v.  Cincinnati, 
N.  O.  &  T.  P.  Ry.  Co.,  107  U.  S. 
479,  500,  42  L.  ed.  243,  17  Sup.  Ct. 
896;  Covington  &  Cincinnati  Bridge 
Co.  v.  Kentucky,  154  U.  S.  201,  213, 
38   L.   ed.    902,    14   Sup.   Ct.    1087; 


Chicago,  M.  &  St.  P.  Ry.  Co.  v. 
Minnesota,  134  U.  S.  418,  461,  33 
L.  ed.  970,  10  Sup.  Ct.  462  (in  dis- 
senting opinion) ;  Georgia  R.  R.  & 
Banking  Co.  v.  Smith,  128  U.  S.  174, 
180,  9  Sup.  Ct.  47,  32  L.  ed.  377; 
Dow  v.  Beidelman,  125  TJ.  S.  680, 
686,  8  Sup.  Ct.  1028,  31  L.  ed.  861; 
Wabash,  St.  L.  &  P.  Ry.  Co.  v. 
Illinois,  118  U.  S.  557,  564,  30  L.  ed. 
244,  7  Sup.  Ct.  4.  Distinguished  in 
Railroad  Commission  Cases  (Stone  v. 
Farmers'  Loan  &  Tr.  Co.),  116  TJ.  S. 
307,  330,  29  L.  ed.  636,  6  Sup.  Ct.  — . 
Cited  in  Spring  Valley  Waterworks 
v.  Schottler,  110  U.  S.  347,  354,  28 
L.  ed.  173,  4  Sup.  Ct.  48;  Ruggles  v. 
Illinois,  108  U.  S.  526,  531,  535,  536, 
2  Sup.  Ct.  832,  27  L.  ed.  812;  Sinking 
Fund  Cases  (Union  Pacific  R.  Co.  v. 
United  States  and  Central  Pacific  R. 
Co.  v.  Gallatin),  99  U.  S.  700,  747, 
25  L.  ed.  496  (in  dissenting  opinion); 
Burlington  v.  Beasley,  94  U.  S.  310, 
314,  24  L.  ed.  161;  Stone  v.  Wiscon- 
sin, 94  U.  S.  181,  185,  24  L.  ed.  102 
(in  dissenting  opinion);  Winona  &  St. 
Peter  R.  Co.  v.  Blake,  94  U.  S.  180, 
24  L.  e.l.  99;  Peik  v.  Chicago  &  N.  W. 
Ry.  Co.,  94  U.  S.  164,  176,  178,  24 

635 


§    391  REGULATION    AND    CONTROL   CONTINUED — 

New  York  20  provided  that  the  maximum  charge  for  elevating, 
receiving,  weighing  and  discharging  grain  should  not  exceed 
five-eighths  of  one  cent  a  bushel;  and  that,  in  the  process  of 
handling  grain  by  means  of  floating  and  stationary  elevators, 

L.  ed.  97;  Chicago,  B.  &  Q.  R.  Co.  v.  Elevator  Co.  v.  Andrew  (C.  C),  144 
Iowa,  94  U.  S.  155,  161,  24  L.  ed.  94;  Fed.  871,  879.  Cited  to  seventh  point 
Home  Teleph.  &  Teleg.  Co.  v.  City  of  in  Kidd  v.  Pearson,  128  U.  S.  1,  23, 
Los  Angeles  (C.  C),  155  Fed.  554,  32  L.  ed.  346,  9  Sup.  Ct.  6^  Cited  to 
569;  Perkins  v.  Northern  Pac.  Ry.  eighth  point  in  Johnson  v.  Chicago  & 
Co.  (C.  C),  155  Fed.  445,  453.  Cited  Pac.  Elevator  Co.,  119  U.  S.  388,  400, 
to  third  point  in  Railroad  Commission  7  Sup.  Ct.  254,  30  L.  ed.  447;  Mor- 
Cases  (Stone  v.  Farmers'  Loan  &  Tr.  gan's  Steamship  Co.  v.  Louisiana 
Co.),  116  U.  S.  307,  335,  29  L.  ed.  Board  of  Health,  118  U.  S.  455,  467, 
636,  6  Sup.  Ct.  — ;  Spring  Valley  6  Sup.  Ct.  1114,  30  L.  ed.  237. 
Waterworks  v.  Schottler,  110  U.  S.  The  principal  case  (Munn  v.  Illi- 
347,  354,  28  L.  ed.  173,  4  Sup.  Ct.  48.  nois)  is  also  cited  in  Cotting  v.  Kan- 
Cited  to  fourth  point  in  Louisville  &  sas  City  Stock  Yards  Co.,  183  U.  S. 
Nashville  Rd.  Co.  v.  West  Coast  79,  46  L.  ed.  92,  22  Sup.  Ct.  30. 
Naval  Stores  Co.,  198  U.  S.  483,  500,  While  we  have  considered  this  case 
25  Sup.  Ct.  745,  49  L.  ed.  1135;  in  §  110,  herein,  the  following  is 
Louisville  &  Nashville  R.  Co.  v.  pertinent  here  in  connection  with  the 
Kentucky,  161  U.  S.  677,  696,  16  principal  case,  since  the  court,  per 
Sup.  Ct.  714,  40  L.  ed.  849;  Budd  v.  Brewer,  J.,  basing  its  language  upon 
New  York,  143  U.  S.  517,  548,  12  the  rule  laid  down  in  that  case,  says: 
Sup.  Ct.  468,  36  L.  ed.  247  (in  dis-  "  It  may  be  conceded  that  the  State 
senting  opinion);  Civil  Rights  Cases,  has  the  power  to  make  reasonable 
109  U.  S.  3,  41,  27  L.  ed.  835,  3  Sup.  regulation  of  the  charges  for  services 
Ct.  18  (in  dissenting  opinion);  Weems  rendered  by  the  stock  yards  com- 
Steamboat  Co.  v.  People's  Steamboat  pany.  Its  stock  yards  are  situated 
Co.,  141  Fed.  454,  456;  West  Coast  at  one  of  the  gateways  of  commerce, 
Naval  Stores  Co.  v.  Louisville  &  and  so  located  that  they  furnish  im- 
N.  R.  Co.  (C.  C.  A.),  121  Fed.  645,  portant  facilities  to  all  seeking  trans- 
650.  Cited  to  fifth  point  in  Dow  v.  portation  of  cattle.  While  not  a 
Beidelman,  125  U.  S.  680,  686,  8  common  carrier,  nor  engaged  in  any 
Sup.  Ct.  1028,  31  L.  ed.  841;  Home  distinctively  public  employment,  it 
Teleph.  &  Teleg.  Co.  v.  City  of  Los  is  doing  a  work  in  which  the  public 
Angeles  (C.  C),  155  Fed.  554,  569.  has  an  interest,  and  therefore  must 
Cited  to  sixth  point  in  Covington  &  be  considered  as  subject  to  govern- 
Cincinnati  Bridge  Co.  v.  Kentucky,  mental  regulation.  But  to  what  ex- 
154  U.  S.  204,  213,  38  L.  ed.  962,  tent  may  this  regulation  go?  Is  there 
14  Sup.  Ct.  1087;  Brass  v.  Stoeser,  no  limit  beyond  which  the  State  may 
153  U.  S.  391,  399,  38  L.  ed.  757,  14  not  interfere  with  the  charges  for 
Sup.  Ct.  857;  Hall  v.  De  Cuir,  95  services  either  of  those  who  are  en- 
U.  S.  485,  487,  24  L.  ed.  547;  Globe  gaged    in    performing    some    public 

20  Laws  1888,  chap.  581. 
636 


RATES    AND    CHARGES 


§  391 


the  lake  vessels  or  propellers,  the  ocean  vessels  or  steamships, 
and  canal-boats,  should  only  be  required  to  pay  the  actual 
cost  of  trimming  or  shovelling  to  the  leg  of  the  elevator  when 
unloading,  and  trimming  cargo  when  unloading.    It  was  held 


service,  or  of  those  who,  while  not 
engaged  in  such  service  have  yet 
devoted  their  property  to  a  use  in 
which  the  public  has  an  interest? 
And  is  the  extent  of  governmental 
regulation  the  same  in  both  of  these 
classes?"  Id.,  S5.  The  court  then 
states  the  second  point  in  the  above 
text  and  reviews  other  cases  at  some 
length. 

"To  this  day  statutes  are  to  be 
found  in  many  of  the  States  upon 
some  or  all  these  subjects  [those  in 
point  2  in  above  text]  and  we  think 
it  has  never  yet  been  successfully 
contended  that  such  legislation  came 
within  any  of  the  constitutional  pro- 
hibitions against  interference  with 
private  property.  With  the  Fifth 
Amendment  in  force,  Congress,  in 
1820,  conferred  power  upon  the  city 
of  Washington  '  to  regulate  *  *  * 
the  rates  of  wharfage  at  private 
wharves,  *  *  *  the  sweeping  of 
chimneys,  and  to  fix  the  rates  of  fees 
therefor,  *  *  *  and  the  weight 
and  quality  of  bread,'  3  Stat:  587,  sec. 
7;  and,  in  1848,  'to  make  all  neces- 
sary regulations  respecting  hackney 
carriages,  and  the  rates  of  haul- 
ing by  cartmen,  wagoners,  carmen, 
and  draymen,  and  the  rates  of  com- 
mission of  auctioneers,'  9  id.  224, 
g  2.  *  *  *  This  brings  us  to  in- 
quire as  to  the  principles  upon  which 
this  power  of  regulation  rests,  in 
order  that  we  may  determine  what  is 
within  and  what  without  its  operative 
effect.  Looking,  then,  to  the  com- 
mon law,  from  whence  came  the 
right  which  the  Constitution  pro- 
tects, we  find  that  when  private  prop- 


erty is  'affected  with  a  public  inter- 
est it  ceases  to  be  juris  privati  only.' 
This  was  said  by  Lord  Chief  Jus- 
tice Hale  more  than  two  hundred 
years  ago,  in  his  treatise,  De  Portibus 
Maris,  1  Harg.  Law  Tracts,  78,  and 
has  been  accepted  without  objection 
as  an  essential  element  in  the  law  of 
property  ever  since.  Property  does 
become  clothed  with  a  public  interest 
when  used  in  a  manner  to  make  it  of 
public  consequence,  and  affect  the 
community  at  large.  When,  there- 
fore, one  devotes  his  property  to  a 
use  in  which  th^e  public  has  an  inter- 
est, he,  in  effect,  grants  to  the  public 
an  interest  in  that  use,  and  must 
submit  to  be  controlled  by  the  public 
for  the  common  good,  to  the  extent 
of  the  interest  he  has  thus  created. 
He  may  withdraw  his  grant  by  dis- 
continuing the  use;  but,  so  long  as  he 
maintains  the  use,  he  must  submit  to 
the  control.  *  *  *  And  the  same 
has  been  held  as  to  warehouses  and 
warehousemen.  In  Aldnutt  v.  Inglis, 
12  East,  527,  decided  in  1810,  it  ap- 
peared that  the  London  Dock  Com- 
pany had  built  warehouses  in  which 
wines  were  taken  in  store  at  such 
rates  of  charge  as  the  company 
and  the  owners  might  agree  upon. 
Afterwards  the  company  obtained 
authority,  under  the  general  ware- 
housing act,  to  receive  wines  from 
importers  before  the  duties  upon 
the  importations  were  paid;  and  the 
question  was,  whether  they  could 
charge  arbitrary  rates  for  such  stor- 
age, or  must  be  content  with  a  reason- 
able compensation.  Upon  this  point 
Lord    Ellenborough    said    (p.    537): 

637 


391 


REGULATION  AND  CONTROL  CONTINUED- 


in  the  United  States  Supreme  Court  that  the  act  was  a  legiti- 
mate exercise  of  the  police  power  of  the  State  over  a  business 
affected  with  a  public  interest,  and  did  not  violate  the  Con- 
stitution of  the  United  States,  and  was  valid.21 


'There  is  no  doubt  that  the  general 
principle  is  favored,  both  in  law  and 
justice,  that  every  man  may  fix  what 
price  he  pleases  upon  his  own  prop- 
erty, or  the  use  of  it;  but  if  for  a 
particular  purpose  the  public  have  a 
right  to  resort  to  his  premises  and 
make  use  of  them,  and  he  have  a 
monopoly  in  them,  for  that  purpose, 
if  he  will  take  the  benefit  of  that 
monopoly,  he  must,  as  an  equivalent, 
perform  the  duty  attached  to  it  on 
reasonable  terms.  The  question  then 
is,  whether,  circumstanced  as  this 
company  is,  by  the  combination  of 
the  warehousing  act  with  the  act  by 
which  they  were  originally  consti- 
tuted, and  with  the  actually  existing 
state  of  things  in  the  port  of  London, 
whereby  they  alone  have  the  ware- 
housing of  these  wines,  they  be  not, 
according  to  the  doctrine  of  Lord 
Hale,  obliged  to  limit  themselves  to 
a  reasonable  compensation  for  such 
warehousing.  And,  according  to  him, 
whenever  the  accident  of  time  casts 
upon  a  party  the  benefit  of  having  a 
legal  monopoly  of  landing  goods  in  a 
public  port,  as  where  he  is  the  owner 
of  the  old  wharf  authorized  to  receive 
goods  which  happens  to  be  built  in  a 
port  newly  erected,  he  is  confined  to 
take  reasonable  compensation  only 
for  the  use  of  the  wharf.'  *  *  * 
Under  such  circumstances  it  is  diffi- 
cult to  see  why,  if  the  common  car- 
rier, or  the  miller,  or  the  ferryman,  or 
the  innkeeper,  or  the  wharfinger,  or 
the   baker,    or   the   cartman,   or   the 


hackney  coachman,  pursues  a  public 
employment  and  exercises  'a  sort  of 
public  office,'  these  plaintiffs  in  error 
do  not.  They  stand,  to  use  again  the 
language  of  their  counsel,  in  the  very 
'gateway  of  commerce,'  and  take 
toll  from  all  who  pass.  Their  busi- 
ness most  certainly  '  tends  to  a  com- 
mon charge,  and  is  become  a  thing 
of  public  interest  and  use.'  Every 
bushel  of  grain  for  its  passage  '  pays  a 
toll,  which  is  a  common  charge,'  and, 
therefore,  according  to  Lord  Hale, 
every  such  warehouseman  '  ought  to 
be  under  public  regulation,  viz.,  that 
he  *  *  *  take  but  reasonable 
toll.'  Certainly,  if  any  business  can 
be  clothed  '  with  a  public  interest, 
and  cease  to  be  juris  privati  only,' 
this  has  been.  It  may  not  be  made 
so  by  the  operation  of  the  constitu- 
tion of  Illinois  or  this  statute,  but  it 
is  by  the  facts.  *  *  *  Neither  is 
it  a  matter  of  any  moment  that  no 
precedent  can  be  found  for  a  statute 
precisely  like  this.  It  is  conceded 
that  the  business  is  one  of  recent 
origin,  that  its  growth  has  been 
rapid,  and  that  it  is  already  of  great 
importance.  And  it  must  also  be 
conceded  that  it  is  a  business  in 
which  the  whole  public  has  a  direct 
and  positive  interest.  It  presents, 
therefore,  a  case  for  the  application 
of  a  long  known  and  well  established 
principle  in  social  science,  and  this 
statute  simply  extends  the  law  so  as 
to  meet  this  new  development  of 
commercial    progress.      There   is   no 


21  Budd  v.  New  York,   143  U.  S. 


638 


517,  12  Sup.  Ct.  468, 
See  §  113,  herein. 


36  L.  ed.  247. 


RATES    AND    CHARGES  §    392 

§  392.  Regulation  of  Gas  Rates — Method  of  Valuation 
— Penalty — Equity — Injunction.-— The  rules  above  stated  23 
apply  to  gas  rates,  or  charges  for  furnishing  gas.24  But  a  mu- 
nicipal corporation  has  no  power  to  fix  the  price  or  regulate 
the  rates  for  gas  to  be  supplied  to  consumers  unless  such  power 
is  expressly  delegated  to  it  by  the  State  or  it  can  be  implied 
necessarily  from  the  powers  expressly  granted.25  In  an  im- 
portant case  in  the  Federal  court  certain  points  in  relation 

attempt  to  compel  these  owners  to  means  of  regulation,  is  implied.  In 
grant  the  public  an  interest  in  their  fact,  the  common-law  rule,  which  re- 
property,  but  to  declare  their  obliga-  quires  the  charge  to  be  reasonable,  is 
tions  if  they  use  it  in  this  particular  itself  a  regulation  as  to  price.  With- 
manner.  *  *  *  It  is  insisted,  out  it  the  owner  could  make  his  rates 
however,  that  the  owner  of  property  at  will,  and  compel  the  public  to 
is  entitled  to  a  reasonable  compensa-  yield  to  his  terms,  or  forego  the  use. 
tion  for  its  use,  even  though  it  be  *  *  *  We  know  that  this  is  a 
clothed  with  a  public  interest,  and  power  which  may  be  abused;  but 
that  what  is  reasonable  is  a  judicial  that  is  no  argument  against  its  exist- 
and  not  a  legislative  question.  As  ence.  For  protection  against  abuses 
has  already  been  shown,  the  practice  by  legislatures  the  people  must  resort 
has  been  otherwise.  In  countries  to  the  polls,  not  to  the  courts." 
where  the  common  law  prevails,  it  Munn  v.  Illinois,  94  U.  S.  113,  125, 
has  been  customary  from  time  im-  127,  131,  133,  134,  24  L.  ed.  77,  84, 
memorial  for  the  legislature  to  de-  86,  per  Waite,  C.  J. 
clare  what  shall  be  a  reasonable  "See  §§16,  17,  82-84,  186,  198, 
compensation  under  such  circum-  herein,  as  to  franchises,  rates,  etc.,  of 
stances,  or,  perhaps  more  properly  gas  companies, 
speaking,  to  fix  a  maximum  beyond  23  See  §  390,  herein, 
which  any  charge  made  would  be  un-  2i  Madison,  City  of,  v.  Madison 
reasonable.  Undoubtedly,  in  mere  Gas  &  Electric  Co.,  129  Wis.  249,  108 
private  contracts,  relating  to  matters  N.  W.  65.  See  Spring  Valley  Water- 
in  which  the  public  has  no  interest,  works  v.  Schottler,  110  U.  S.  347, 
what  is  reasonable  must  be  ascer-  28  L.  ed.  173,  4  Sup.  Ct.  48,  also 
tained  judicially.  But  this  is  because  citations  under  note  to  §  390,  herein, 
the  legislature  has  no  control  over  Maximum  rate  fixed  so  low  as  to 
such  a  contract.  So,  too,  in  matters  destroy  ]>ro]ierti/  rights  constitutes 
which  do  affect  the  public  interest,  taking  property  without  due  process 
and  as  to  which  legislative  control  of  law.  Brooklyn  Union  Gas  Co.  v. 
may  be  exercised,  if  there  are  no  City  of  New  York,  100  N.  Y.  Supp. 
statutory  regulations  upon  the  sub-  570,  50  Misc.  450. 
ject,  the  courts  must  determine  what  "  Mills  v.  City  of  Chicago,  127  Fed. 
is  reasonable.  The  controlling  fact  731;  Richmond,  City  of,  v.  Rich- 
is  the  power  to  regulate  at  all.  If  mond  Natural  Gas  Co.  (Ind.,  1907), 
that  exists,  the  right  to  establish  the  79  X.  E.  1031.  Sec  Pryor,  In  re,  55 
maximum  of  charge,  as  one  of  the    Kan.  721.    \')  Am.  St.  Rep.  280,  41 

639 


§  392     REGULATION  AND  CONTROL  CONTINUED — 

to  franchises  and  equity  jurisdiction  are  decided  as  follows: 
(1)  In  a  suit  by  a  gas  company  to  enjoin  the  enforcement  of  a 
statute  or  regulation  fixing  the  rate  to  be  charged  by  such 
company  for  gas  as  unreasonable  and  confiscatory,  where  the 
company  operates  under  a  franchise,  is  required  by  law  to 
furnish  gas  to  all  who  demand  it,  and  enjoys  a  practical  mo- 
nopoly in  the  territory  in  which  it  serves,  it  has  no  good  will 
in  a  property  sense,  aside  from  its  franchise,  which  can  be  con- 
sidered as  property  invested  in  its  business.  (2)  Under  the 
settled  rule  of  decision,  however,  that  if  property  protected 
by  a  franchise  is  condemned  and  wholly  taken  from  its  owner 
the  franchise  must  be  paid  for,  such  a  state  regulation  reducing 
the  earning  power  of  property  so  protected  reduces  the  value 
of  the  franchise  pro  tanto,  and  the  complainant  is  entitled  to 
add  the  value  of  its  franchises,  if  ascertainable,  to  its  capital 
account  before  declaring  the  rate  of  return  permitted  by  the 
statute.  (3)  Complainant  having  followed  the  universal  cus- 
tom of  American  corporations,  sanctioned  by  law,  of  capital- 
izing its  franchises  on  its  organization  by  issuing  stock  in  ex- 
cess of  its  actual  investment  in  tangible  property,  and  having 
since  then  earned  fair  dividends  on  all  its  stock,  the  amount  of 
such  excess  stock  may  fairly  be  taken  as  the  value  of  its  fran- 
chises at  the  time  of  issuance,  and  where  its  business  has 
largely  increased  such  value  may  be  assumed  to  have  increased 
since  that  time  in  proportion  to  the  increase  of  its  tangible 
property.    (4)  Where  the  complainant  on  its  organization  pur- 

Pac.  958,  29  L.  R.  A.  398,  12  Am.  R.  ural  Gas  Co  v.  City  of  Chillicothe,  65 

&  Corp.  Rep.  364.  Ohio  St.  186,  62  N.  E.  122. 

Right  exists  in  city  to  fix  maximum  Presumed    that    rates    charged    are 

rates  for  natural  gas  when  statute  in  reasonable  and  need  not  be  alleged  that 

effect   so   authorizes.      Rushville    v.  they  are  so.     Noblesville,  City  of,  v. 

Rushville  Natural  Gas  Co.,  132  Ind.  Noblesville  Gas  &  Improvement  Co., 

575,    15   L.    R.    A.    321,    28    N.    E.  157  Ind.   162,  60  N.  E.  1032.     See 

853.  §  405,  herein. 

Effect    of  acceptance    of  ordinance  Exemption  from  change  of  rates  and 

fixing  rate  (see  Noblesville,  City  of,  v.  loss  of  rights  by  consolidation.     See 

Noblesville  Gas  &  Improvement  Co.,  People's  Gas  Light  .&  Coke  Co.  v. 

157  Ind.  162,  60  N.  E.  1032)  for  cer-  Chicago,  194  U.  S.  1,  48  L.  ed.  851, 

tain  period  of  time.    See  Logan  Nat-  24  Sup.  Ct.  520.     See  §  412,  herein. 

640 


RATES    AND    CHARGES  §    392 

chased  the  property  and  franchises  of  existing  gas  companies, 
and  has  since  enjoyed  and  operated  under  such  franchises,  it 
acquired  the  legal  ownership  thereof  under  the  decisions  of 
the  Court  of  Appeals  of  New  York,  and  notwithstanding  the 
fact  that  the  original  grantees  have  ceased  to  exist,  it  is,  for  the 
purpose  of  an  inquiry  into  the  legality  of  a  state  statute. regu- 
lating its  rates  of  charge,  entitled  to  capitalize  their  value, 
especially  where  the  State  has  during  such  time  compelled  it 
to  pay  a  franchise  tax  based  thereon.  (5)  The  provisions  of 
the  New  York  statutes  subjecting  any  gas  company  furnishing 
or  selling  gas  in  the  city  of  New  York  to  a  penalty  of  one 
thousand  dollars  for  every  violation  of  their  provisions  respect- 
ing equipment,  pressure,  or  rates  of  charge  therein  fixed  is 
extravagant  and  unreasonable  in  its  severity,  and  renders  such 
statutes  unconstitutional  and  void  as  a  denial  to  such  com- 
panies of  the  equal  protection  of  the  laws.  (6)  The  fact  that 
the  regulation  of  rates  to  be  charged  by  a  public  service  cor- 
poration is  made  by  a  direct  legislative  act  of  a  State,  and  not 
by  a  subordinate  body,  does  not  affect  the  jurisdiction  or 
power  of  a  court  of  the  United  States  or  of  a  State  to  inquire 
into  its  constitutionality.  (7)  A  suit  in  equity  may  be  main- 
tained to  enjoin  the  enforcement  of  an  unconstitutional  legis- 
lative act,  the  failure  to  comply  with  which  would  subject 
complainant  to  innumerable  suits  for  penalties.26  In  addition 
to  the  points  as  to  the  valuation  of  franchises  above  stated, 
concerning  which  the  court  said:  "The  most  important  and 
novel  question  is  whether  a  public  service  corporation  is  en- 
titled to  add  the  value  of  its  franchise  to  the  assets  from  which 
a  fair  return  may  be  lawfully  demanded,"27  it  was  held:  (a) 
In  a  suit  by  a  gas  company  to  restrain  the  enforcement  of  a 
state  statute  regulating  the  price  of  gas  as  confiscatory  and 

2fi  Syllabus  in  Consolidated  Gas  Co.  Compare  as  to  point  three  in  text 
v.  City  of  New  York  (C.C.),  157  Fed.  Smyth  v.  Ames,  169  U.  S.  466,  42 
849.  Case  was  argued  in  Supreme  L.  ed.  819,  18  Sup.  Ct.  418,  considered 
Court  of  United  States  on  November  under  §  409,  herein. 
10,  1908,  and  points  therein  will  be  "  Id.,  p.  872,  per  Hough,  Dist.  J. 
inserted  a-  "  Appendix  C,"  herein,  if 
decision  is  rendered  in  time  therefor. 

41  641 


§    392  REGULATION    AND    CONTROL    CONTINUED — 

unconstitutional,  in  placing  a  valuation  on  complainant's  tangi- 
ble property  employed  in  the  business,  on  which  it  is  entitled  to 
earn  a  fair  return,  the  actual  or  reproductive  value  at  the  time  of 
the  inquiry  is  the  true  measure,  without  regard  to  the  original  cost, 
(b)  Real  estate  owned  by  the  complainant,  but  not  used  in  the 
business,  should  not  be  included  as  part  of  the  capital  invested, 
unless  it  is  shown  that  its  use  will  necessarily  be  required  in 
the  near  future;  nor  should  the  income  derived  from  such  land 
be  included  in  the  earnings,  nor  the  taxes  paid  thereon  in  the 
expenses,  of  the  business,  (c)  The  complainant  is  entitled  to 
have  included  in  its  capital  the  value  of  land  of  which  it  claims 
to  be  the  owner,  and  actually  in  its  possession  and  used  by  it 
in  the  business,  although  its  title  may  be  defective  or  subject 
to  defeasance;  but  land  in  a  river  bed,  over  which  boats  ap- 
proach the  company's  works,  is  of  no  greater  value  to  the 
business,  because  owned  by  the  company,  than  if  owned  by 
the  public,  and  cannot  properly  be  considered  as  employed  in 
the  business,  (d)  The  complainant  is  entitled  to  include  in  its 
capital  account  as  working  capital  in  addition  to  the  amount 
of  its  average  bills  payable  outstanding,  only  so  much  cash  as 
will  enable  it  to  safely  and  conveniently  transact  its  business, 
having  regard  to  its  average  losses  and  its  standing  as  to  credit. 
(e)  The  complainant  cannot  legally  include  as  a  part  of  its 
capital  devoted  to  the  business  of  manufacturing  gas,  and 
affected  by  the  statute  regulating  rates,  the  value  of  the  prop- 
erty or  stock  of  a  coal  and  coke  company  of  u-hich  it  owns  tJie 
entire  stock,  and  which  was  organized  by  it  to  purchase  and 
dispose  of  its  by-products,  nor  of  another  gas  company  organ- 
ized by  it  to  manufacture  and  sell  gas  to  it  to  supplement  its 
own  production;  both  such  companies  being  separate  and  dis- 
tinct corporations,  in  which  its  legal  interest  is  as  stockholder 
only.  (/)  When  the  capital  stock  of  such  complainant  was 
issued  many  years  prior  to  the  time  of  inquiry,  and  its  capital 
is  invested,  not  only  in  its  business  of  manufacturing  and  selling 
gas,  but  also  largely  in  the  stock  of  other  corporations,  the  amount 
of  its  share  capital  and  its  value  in  the  market  are  of  little  or 
no  value  in  determining  its  investment  in  the  business  on 
642 


RATES    AND    CHARGES  §    392 

which  it  is  entitled  to  earn  a  reasonable  return;  but  such  in- 
vestment can  only  be  reached  by  a  valuation  of  the  property 
employed  in  the  business,  (g)  In  determining  the  cost  to  com- 
plainant of  the  production  and  distribution  of  gas,  the  cost  of 
gas  purchased  by  it  from  other  companies  and  distributed 
through  its  pipes  to  supplement  its  own  production  is  not  a 
part  of  the  expense  of  operation;  but  such  purchase  and  dis- 
tribution is  a  business  to  be  separately  considered,  (h)  Amounts 
paid  out  by  complainant  as  interest  and  penalty  on  taxes,  the 
validity  of  which  is  contested  in  the  courts,  and  the  expenses 
of  such  litigation  and  of  legislative  investigation,  are  extraordi- 
nary expenses,  and  cannot  be  treated  as  part  of  the  permanent 
and  average  expense  of  the  manufacture  and  distribution  of 
gas,  to  be  deducted  from  earnings  to  ascertain  the  net  profits 
of  the  business,  (i)  In  such  a  suit  complainant  is  not  entitled, 
in  addition  to  treating  the  amount  actually  expended  during 
the  time  covered  by  the  inquiry  for  repairs  and  renewals  of 
plant  as  a  permanent  expense,  to  an  allowance  of  a  percentage 
of  the  gross  income  to  be  set  aside  as  a  reserve  or  contingent 
fund  to  cover  depreciation  of  plant,  which,  together  with  the 
amount  so  actually  expended,  is  largely  in  excess  of  the  av- 
erage expenditures  for  such  purpose  during  a  series  of  years, 
and  which  have  maintained  the  plant  in  as  good  a  condition  as 
in  the  beginning;  but  the  total  allowance  should  be  based  on 
such  average,  (j)  Where  complainant,  having  insufficient  gas 
of  its  own  manufacture  to  supply  its  demand,  purchased  addi- 
tional gas  by  contract  from  other  companies,  which  it  distributed 
through  its  pipes,  and  it  appeared  from  the  evidence  that  such 
purchases  would  probably  continue,  the  net  profits  realized 
therefrom  should  be  added  to  its  income  from  its  own  produc- 
tion, (k)  In  ascertaining  whether  a  statute  or  an  order  of  a 
state  commission  fixing  the  maximum  rate  to  be  charged  for 
gas  by  a  gas  company  is  unjust  and  unreasonable,  and  such  as 
to  work  a  practical  destruction  of  the  rights  of  property, 
which  would  render  it  unconstitutional,  the  return  which  the 
company  is  entitled  to  earn  on  the  capital  employed  in  the  I  >usiness 
is  not  determined  by  the  legal  rale  of  interest  in  the  State,  but 

643 


§   393  REGULATION    AND   CONTROL   CONTINUED — 

by  the  local  rate  of  return  ordinarily  sought  and  obtained  on 
investments  of  the  same  degree  of  safety.  A  company  having 
a  long-established  business  and  practical  monopoly  in  supply- 
ing gas  in  the  most  populous  portion  of  New  York  City  held, 
entitled,  as  against  such  a  statute,  to  a  return  of  six  per  cent.28 
A  United  States  Circuit  Court  injunction  restraining  the  en- 
forcement of  a  statute  fixing  the  maximum  price  of  gas  at  a 
less  rate  than  that  charged  by  the  company  constitutes  no 
bar  to  an  action  in  the  state  court,  by  a  consumer,  to  restrain 
the  gas  company  from  cutting  off  his  gas  supply  to  enforce 
payment,  and  there  is  nothing  in  the  principle  of  comity  pro- 
hibiting a  state  court  from  entertaining  jurisdiction  to  the 
extent  of  granting  such  relief.29 

§  393.  Regulation  of  Water  Rates — Obligation  of  Con- 
tracts— Due  Process  of  Law — Equal  Protection  of  Laws — 
Reservation  of  Power  to  Amend.30 — Statutes  of  a  State  pro- 
viding that  the  use  of  all  water  appropriated  for  sale,  rental  or 
distribution  shall  be  a  public  use  and  subject  to  public  regu- 
lation and  control,  are  valid.  To  regulate  or  establish  rates  for 
which  water  will  be  supplied,  is,  in  its  nature,  the  execution  of 
one  of  the  powers  of  the  State,31  but  this  power  cannot  be 
exercised  arbitrarily  and  without  reference  to  what  is  just 
and  reasonable  between  the  public  and  those  who  appropriate 
water  and  supply  it  for  general  use.  This  applies  to  a  statute  32 
making  it  the  official  duty  of  the  board  of  supervisors,  town 

28  Syllabus  in  Consolidated  Gas  Co.    100  N.  Y.  Supp.  100,  114  App.  Div. 
v.  City  of  New  York  (C.  C),  157  Fed.    242,  78  N.  E.  871. 

849.    The  italicization  in  the  text  is  30  See  §§  16,  17,  88,  118,  130,  173, 

that  of  the  writer.     Another  point  186,  195,  255,  herein,  as  to  franchises, 

was  decided  in  the  case  as  to  the  con-  rates,  etc.,  of  water  companies  and 

stitutionality  of  a  statute  regulating  irrigation  companies, 

the  pressure  of  gas,  which  was  held  31  Stanislaus  Co.  v.  San  Joaquin  & 

a   commercially    impossible   require-  King's  River  Canal  &  Irrig.  Co.,  192 

ment.     See  §  388,  herein.  U.  S.  201,  48  L.  ed.  406,  24  Sup.  Ct. 

29  Richman    v.    Consolidated    Gas  241;  San  Diego  Land  &  Town  Co.  v. 
Co.  of  New  York,  186  N.  Y.  209,  78  National    City,    174    U.    S.    739,    43 
N.  E.  871,  aff'g  100  N.  Y.  Supp.  81,  L.  ed.  1154,  19  Sup.  Ct.  804.     See 
114  App.  Div.  216.    See  Grossman  v.  §§  369,  390,  herein. 
Consolidated  Gas  Co.  of  New  York,  32  Cal.  Act  of  March  7,  1881,  c.  52. 

644 


RATES    AND    CHARGES  §    393 

council,  or  other  legislative  body  of  any  city  and  county,  city 
or  town,  in  the  State,  to  annually  fix  the  rates  that  shall  be 
charged  or  collected  for  water  furnished,  and  also  providing 
for  a  hearing,  in  an  appropriate  way,  for  fixing  such  rates. 
And  the  judiciary  ought  not  to  interfere  with  the  collection 
of  such  rates,  so  established  under  legislative  sanction,  unless 
they  are  so  plainly  and  palpably  unreasonable,  as  to  make 
their  enforcement  equivalent  to  the  taking  of  property  for 
public  use  without  such  compensation  as,  under  the  circum- 
stances, is  just  both  to  the  owner  and  the  public.33  It  is  also 
held  in  another  case  that  the  appropriation  and  distribution 
of  water  is  a  public  use,  and  the  right  to  collect  tolls  or  com- 
pensation for  it  is  a  franchise,  subject  to  regulation  and  control 
in  the  manner  prescribed  by  law,  and  such  tolls  cannot  be 
fixed  by  contract  of  the  parties.34  The  provision  in  the  Cali- 
fornia Water  Act  of  18G2,  that  county  boards  of  supervisors 
should  regulate  water  rates  but  could  not  reduce  them  below 
a  certain  point,  does  not  amount  to  a  contract  with  water 
companies  which  would  be  impaired  within  the  meaning  of 
the  Federal  Constitution  by  a  subsequent  act  either  reducing 
the  rates  below  such  point  or  authorizing  boards  of  super- 
visors to  do  so ;  and  the  right  of  the  State  to  regulate  or  estab- 
lish water  rates  should  not  be  regarded  as  parted  with  any 
sooner  than  the  right  of  taxation  should  be  so  regarded,  and 
the  language  of  the  alleged  contract  should  in  both  cases  be 
equally  plain;35  or,  to  state  this  last  proposition  in  another 
form,  the  power  to  regulate  water  rates  is  a  governmental 
power  continuing  in  its  nature  which,  if  it  can  be  bargained 
away  at  all,  can  only  be  so  done  by  words  of  positive  grant, 
and  if  any  reasonable  doubt  exists  in  regard  thereto  it  must 

33  San  Diego  Land  &  Town  Co.  v.  Town  Co.,  178  U.  S.  22,  44  L.  ed.  961, 

National  City,  174   I".  S.  739,  43    L.  20  Sup.  Ct.  860.     But  compare  San 

ed.  1154, 19  Sup.  Ct.   804.    See  also  Diego  Flume  Co.  v.  Souther,  90  Fed. 

Spring  Valley  Waterworks  v.  Schot-  104.  32  C.  C.  A.  548,  61  U.  S.  App. 

tier,  1  L0  U.  S.  ::  17,  28  F>.  ed.  17::.  4  134. 

Sup.  Ct.  48;  Salt  River  Canal  Co.  v.       r'  Stanislaus  Co.  v.  San  Joaquin  & 

Nelssen  (Ariz.,  1906),  *">  Pac.   117.  King's  River  Canal  & Irrig. Co.,  192  U. 

"Osborne  v.  San   Diego   Land   A:  S.  201,  24  Sup.  Ct.  241, 48  L.  ed.  406. 

645 


§    394  REGULATION    AND    CONTROL   CONTINUED — 

be  resolved  in  favor  of  the  existence  of  the  power.36  Again, 
although  there  is  a  limitation  to  the  power  of  amendment 
when  reserved  in  the  constitution  or  statute  of  a  State,  it 
is  not  confiscation  nor  a  taking  of  property  without  due 
process  of  law,  nor  a  denial  of  the  equal  protection  of  the 
laws,  to  fix  water  rates  so  as  to  give  an  income  of  six  per 
cent  upon  the  then  value  of  the  property  actually  used, 
even  though  the  company  had  prior  thereto  been  allowed 
to  fix  rates  securing  one  and  a  half  per  cent  per  month, 
and  if  not  hampered  by  an  unalterable  contract  a  law 
reducing  the  compensation  as  above  is  not  unconstitu- 
tional.37 

§  394.  Regulation  of  Water  Rates  Continued — Obligation 
of  Contracts — Defense  That  Franchise  Has  Expired. — Cor- 
porations organized  for  the  purpose  of  supplying  cities  and 
towns  and  the  inhabitants  thereof  with  water  are  none  the 
less  subject  to  legislative  regulation  and  control  because  they 
are  denominated  private  corporations.38  Water  rates  cannot 
be  reduced  by  a  city  or  its  water  board  where  such  act  will 
impair  the  obligation  of  contracts,  as  where  a  city  ordinance, 
which  is  accepted  by  the  company,  authorizes  agreements 
with  consumers  for  rates  not  in  excess  of  those  specified,  the 
municipality  cannot  reduce  the  rates  to  less  than  those  so 
specified  while  such  contract  exists.39  So  statutes  impair  the 
obligation  of  contracts  where  they  enable  a  city,  by  establish- 
ing an  independent  system  of  waterworks,  fixing  a  scale  of 
prices,  and  making  certain  assessments,  to  destroy  the  value 
of  the  property  of  a  waterworks  company  and  procure  its  cus- 
tomers through  its  water  commissioners  by  other  than  com- 
petitive means.40    In  a  suit  by  a  corporation  against  a  city, 

36  Owensboro  v.  Owensboro  Water-  38  Boise  City  Artesian  Hot  &  Cold 
works  Co.,  191  U.  S.  358,  24  Sup.  Ct.  Water  Co.  v.  Boise  City,  123  Fed. 
82,  48  L.  ed.  217.  232,  59  C.  C.  236. 

37  Stanislaus  Co.  v.  San  Joaquin  &  3B  Omaha  Water  Co.  v.  City  of 
King's  River  Canal  &  Irrig.  Co.,  192  Omaha,  147  Fed.  1,  77  C.  C.  A.  267. 
U.  S.  201,  24  Sup.  Ct.  241,  48  L.  ed.  40  Warsaw  Waterworks  Co.  v.  Vil- 
406.  lage  of  Warsaw,  44  N.  Y.  Supp.  876, 

646 


RATES   AND   CHARGES  §    395 

brought  after  the  expiration  of  its  franchise  rights,  to  restrain 
the  enforcement  of  an  ordinance  limiting  the  water  rates  to 
be  thereafter  charged,  the  city  may  show  in  defense  that  the 
franchise  has  expired,  and  the  corporation's  rights  thereunder 
have  ceased  to  exist.41 

§  395.  Regulation  of  Water  Rates  Continued — Illustra- 
tive Decisions. — The  constitution  of  Florida  has  a  clause  to 
the  effect  that  the  legislature  is  invested  with  full  powers  to 
prevent  unjust  discrimination  and  excessive  charges  by  per- 
sons and  corporations  engaged  as  common  carriers  and  per- 
forming other  public  services  of  a  public  nature,  and  that  it 
shall  provide  for  enforcing  such  laws.  In  pursuance  of  this 
clause  a  law  was  passed  empowering  cities  to  prescribe  by 
ordinance  maximum  reasonable  charges  for  water,  provided 
that  the  act  should  not  impair  the  validity  of  any  valid  con- 
tract, or  be  held  to  validate  any  contract  theretofore  made. 
After  the  constitution,  but  before  the  act,  the  city  of  Tampa 
had  made  a  contract  with  a  water  company,  giving  the  water 
company  the  right  to  charge  certain  rates.  After  the  act  it 
passed  an  ordinance  fixing  lower  rates,  not,  however,  alleged  to 
be  unreasonable.  The  Supreme  Court  of  Florida  sustained  the 
ordinance,  reading  the  statute  as  giving  the  power  to  fix  rea- 
sonable rates,  when  it  was  possible,  without  impairing  the  ob- 
ligation of  contracts,  and  the  constitution  as  meaning  that 
the  legislature  was  to  have  an  inalienable  power  to  make  such 
laws.  It  was  held  that  this  interpretation  was  sufficiently 
plausible  to  be  followed.42  An  ordinance  of  a  city  of  Kentucky 
before  it  became  a  city  of  the  third  class,  giving  a  water  com- 
pany a  right  to  make  and  enforce,  as  part  of  the  conditions  upon 
which  it  would  supply  customers,  all  needful  rules  and  regu- 
lations not  inconsistent  with  the  law,  must  be  construed  as  to 

16  App.  Div.  502,  mod.  and  aff'd  in  u  Cedar  Rapids  Water  Co.  v.  City 

161  N.  Y.  176,  55  N.  E.  486;  Skanc-  of  Cedar  Rapids,  118  Iowa,  234,  91 

ateles  Waterworks  Co.  v.  Village  of  N.  W.  1031. 

Skaneateles,  54  N.  Y.  Supp.  1115,  33  42Tampa     Waterworks     Co.     v. 

App.  Div.  642,  aff'd  in  161  X.  Y.  154,  Tampa,  199  U.  S.  241,  50  L.  ed.  178, 

55  X.  E.  562.  26  Sup.  Ct.  55. 

647 


§  395     REGULATION  AND  CONTROL  CONTINUED — 

the  law,  as  it  might  be  altered,  and  when  the  city  becomes  a 
city  of  the  third  class  and  thus  has  power  under  the  general 
law  to  provide  the  city  with  water  by  contract  or  by  works 
of  its  own  and  to  make  regulations  for  the  management  thereof 
and  to  fix  prices  to  consumers,  an  ordinance  subsequently 
enacted  during  the  life  of  the  franchise,  fixing  the  price  of 
water,  is  not  void  as  against  the  water  company  under  the 
impairment  of  contract  clause  of  the  Constitution  of  the  Uni- 
ted States,  and  in  the  absence  of  other  grounds  the  Circuit 
Court  of  the  United  States  has  no  jurisdiction  of  a  suit  in  equity 
to  restrain  the  enforcement  of  such  last  enacted  ordinance,  no 
question  of  unreasonableness  of  the  rates  being  involved.43  In 
another  case  it  appeared  that  the  Knoxville  Water  Company 
was  incorporated  to  construct  waterworks  near  Knoxville,  with 
power  to  contract  with  the  city  and  inhabitants  for  a  supply 
of  water  and  "to  charge  such  price  for  the  same  as  may  be 
agreed  upon  between  said  company  and  said  parties;"  the  gen- 
eral act  under  which  the  company  was  incorporated  provided 
that  it  should  not  interfere  with  or  impair  the  police  powers 
of  the  municipal  authorities,  and  they  should  have  power  by 
ordinance  to  regulate  the  price  of  water  supplied  by  such 
company.  The  company  in  1882  contracted  for  an  exclusive 
privilege  for  thirty  years  to  construct  works,  and  after  fifteen 
years  to  convey  to  the  city  at  a  price  to  be  agreed  upon  or  fixed 
by  appraisal,  and  to  "supply  private  consumers  at  not  ex- 
ceeding five  cents  per  hundred  gallons."  Subsequently  the 
city  passed  an  ordinance  reducing  the  price  of  water  to  private 
consumers  below  that  rate.  In  an  action  to  enforce  penalties 
for  overcharging  the  later  rate,  it  was  decided  that  there  was 
no  contract  on  the  part  of  the  city  to  permit  the  charge  named 
therein;  and  that  the  charter  having  been  accepted  subject  to 
the  provision  of  the  general  act  reserving  the  power  in  the 
municipal  authorities  to  regulate  the  price  of  water  the  sub- 
sequent ordinance  was  not  void  either  as  impairing  the  obli- 
gation of  a  contract,  or  as  depriving  the  company  of  its  prop- 

43  Owensboro  v.  Owensboro  Water-   works  Co.,  191  U.  S.  358,  24  Sup.  Ct. 

82,  48  L.  ed.  217. 

648 


RATES    AND    CHARGES  §    395 

erty  without  due  process  of  law.44  Again,  the  facts  under  still 
another  decision  were  as  follows:  On  July  22,  1868,  Los  An- 
geles City  leased  to  Griffin  and  others  for  a  named  sum  its 
waterworks  for  a  term  of  thirty  years  and  granted  them  the 
right  to  lay  pipes  in  the  street,  and  to  take  the  water  from  the 
Los  Angeles  River  at  a  point  above  the  dam  then  existing,  and 
to  sell  and  distribute  it  to  the  inhabitants  of  the  city,  reserving 
the  right  to  regulate  the  water  rates,  provided  that  they  should 
not  be  reduced  to  less  than  those  then  charged  by  the  lessees. 
The  lessees  agreed  to  pay  a  fixed  rental,  to  erect  hydrants  and 
furnish  water  for  public  uses  without  charge,  and  at  the  ex- 
piration of  the  term  to  return  the  works  to  the  city  in  good 
order  and  condition,  reasonable  wear  and  damage  excepted. 
This  contract  was  procured  for  the  purpose  of  transferring  it 
to  a  corporation  to  be  formed,  which  was  done.  Subsequently 
the  limits  of  the  city  were  extended,  and  the  expenses  of  the 
corporation  were  increased  accordingly.  The  city  subsequently 
established  water  rates  below  those  named  in  the  contract, 
and  the  company  collected  the  new  rates,  without  in  any 
other  way  acquiescing  in  the  change.  This  suit  was  brought 
by  the  company  to  enforce  the  original  contract.  It  was  held 
that  the  power  to  regulate  rates  was  an  existent  power,  not 
granted  by  the  contract,  but  reserved  from  it  with  a  single 
limitation,  the  limitation  that  it  should  not  be  exercised  to 
reduce  rates  below  what  was  then  charged,  and  that  undoubt- 
edly there  was  a  contractual  element,  but  that  it  was  not  in 
granting  the  power  of  regulation,  but  in  the  limitation  upon 
it.  It  was  also  decided  that  the  city  of  Los  Angeles,  by  its 
solemn  contract,  and  for  various  considerations  therein  stated, 
gave  to  the  party  under  whom  defendant  claimed  the  privi- 
lege of  introducing,  distributing  and  selling  water  to  the  in- 
habitants of  that  city,  on  certain  terms  and  conditions,  which 
defendant  had  complied  with,  and  it  was  not  within  the  power 
of  the  city  authorities,  by  ordinance  or  otherwise,  afterward  to 
impose  additional   burdens  as  a  condition  to  the  exercise  of 

"  Knoxville  Water  Co.  v.  Knox-    ville,  180  U.  S.  434,  47  L.  ed.  887,  23 

Sup.  Ct.  ."»::7.    . 

649 


§§  396,  397   REGULATION  AND  CONTROL  CONTINUED— 

the  rights  and  privilege  granted.  It  was  further  held  that  by 
acquiescing  in  the  regulations  of  rates  ever  since  1880  the 
company  was  not  estopped  from  claiming  equitable  relief,  and 
was  guilty  of  no  laches.45 

§  396.  Regulation  of  Ferry  Fares  and  Tolls.46— The  regu- 
lation of  fares  and  tolls  at  a  ferry  between  two  States  is  not 
exclusively  within  the  power  of  Congress  to  regulate  com- 
merce.47 But  it  is  held  by  the  Federal  Supreme  Court  that 
the  transportation  of  passengers  and  freight  for  hire  by  a 
steam  ferry  across  the  Delaware  River  from  New  Jersey  to 
Philadelphia  by  a  corporation  of  New  Jersey  is  interstate 
commerce,  which  is  not  subject  to  exactions  by  the  State  of 
Pennsylvania.48 

§  397.  Regulation  of  Rates  or  Tolls  of  Turnpike  Com- 
panies—Due Process  of  Law— Power  of  Courts.49— A  statute 
which,  by  its  necessary  operation,  compels  a  turnpike  com- 
pany, when  charging  only  such  tolls  as  are  just  to  the  public, 
to  submit  to  such  further  reduction  of  rates  as  will  prevent  it 
from  keeping  its  road  in  proper  repair  and  from  earning  any 
dividends  whatever  for  stockholders,  is  as  obnoxious  to  the 
Federal  Constitution  as  would  be  a  similar  statute  relating 
to  the  business  of  a  railroad  corporation  having  authority, 
under  its  charter,  to  collect  and  receive  tolls  for  passengers  and 
freight.  And  a  judgment  of  a  state  court,  even  if  it  be  au- 
thorized by  statute,  whereby  private  property  is  taken  for  the 

45  Los  Angeles,  City  of,  v.  Los  Mon.  (55  Ky.)  699;  Marshall  v. 
Angeles  City  Water  Co.,  177  U.  S.  Grimes,  41  Miss.  27;  Carroll  v.  Camp- 
558,  44  L.  ed.  886,  20  Sup.  Ct.  736,  bell,  108  Mo.  550,  17  S.  W.  884,  110 
aff'g  Los  Angeles  City  Water  Co.  v.  Mo.  557,  19  S.  W.  809.  Examine 
City  of  Los  Angeles,  88  Fed.  720.  §  145,  herein. 

46  See  §§15,  80,  186,  194,  201,  48  Gloucester  Ferry  Co.  v.  Pennsyl- 
herein,  as  to  franchises,  rates,  etc.,  vania,  114  U.  S.  196,  5  Sup.  Ct.  826, 
of    ferries.       See    also    §§  369,    390,  29  L.  ed.  158. 

herein.  49  See  §§  17,  19,  116,  117,  199-201, 

47  Freeholders  of  Hudson  County  v.  herein,  as  to  franchises,  rates  or  tolls, 
State,  24  N.  J.  L.  718;  State  v.  Hud-  etc.,  of  turnpikes,  toll  roads  and 
son  County  Freeholders,  23  N.  J.  L.  plank  roads.  See  also  §§  369,  390, 
206.     See  Newport  v.  Taylor,  16  B.  herein. 

650 


RATES    AXD    CHARGES  §    397 

State  or  under  its  direction,  for  public  use,  without  compensa- 
tion made  or  secured  to  the  owner,  is,  upon  principle  and 
authority,  wanting  in  that  due  process  of  law  required  by  the 
Fourteenth  Amendment.50  There  is,  however,  no  taking  of 
property  without  due  process  of  law  where  it  does  not  appear 
that  by  such  reduction  of  rates  there  will  be  any  reduction 
of  dividends  or  if  so,  the  extent  thereof,  and  rates  may  be 
subsequently  changed  notwithstanding  a  turnpike  company's 
charter  specifies  what  charges  may  lawfully  be  made,  with 
the  right  to  increase  or  decrease  the  same  as  the  dividends  may 
necessitate,  such  specification  of  certain  rates  in  the  charter 
raising  merely  an  inference  or  presumption  that  they  are 
reasonable.51  The  principle  may,  as  to  this  class  of  corpora- 
tions, be  reaffirmed  that  courts  have  the  power  to  inquire 
whether  a  body  of  rates  prescribed  by  a  legislature  is  unjust 
and  unreasonable  and  such  as  to  work  a  practical  destruction 
of  rights  of  property,  and  if  found  so  to  be,  to  restrain  its  op- 
eration, because  such  legislation  is  not  due  process  of  law. 
And  when  a  question  arises  whether  the  legislature  has  ex- 
ceeded its  constitutional  power  in  prescribing  rates  to  be 
charged  by  a  corporation  controlling  a  public  highway,  stock- 
holders are  not  the  only  persons  whose  rights  or  interests  are 
to  be  considered:  and  if  the  establishment  of  new  lines  of 
transportation  should  cause  a  diminution  in  the  tolls  collected, 
that  is  not,  in  itself,  a  sufficient  reason  why  the  corporation 
operating  the  road  should  be  allowed  to  maintain  rates  that 
would  be  unjust  to  those  who  must  or  do  use  its  property,  but 
that  the  public  cannot  properly  be  subjected  to  unreasonable 
rates  in  order  simply  that  stockholders  may  earn  dividends 
again;  the  constitutional  provision  forbidding  a  denial  of  the 
equal  protection  of  the  laws,  in  its  application  to  corporations 

so  Smyth  v.  Ames,   ICO  U.  S.  46G,  U.  S.  226,  241,  41  L.  ed.  979,  17  Sup. 

525,  42  L.  ed.  819,  IS  Sup.  Ct.  418,  Ct.  581. 

per  Harlan,  J.  (a  ease  of  regulation  of  •r'1  Winchester  &  L.  Turnpike  Road 

railroad  rates  and  powers  of  State),  Co.  v.  Croxton,  98  Ky.  739, 17  Ky.  L. 

relying  in  part  upon  Chicago,  Burling-  Rep.  1299,  33  L.  R.  A.  177,  34  S.  W. 

ton  &  Quincy  Rd.  Co.  v.  Chicago,  166  518. 

651 


§  398     REGULATION  AND  CONTROL  CONTINUED — 

operating  public  highways,  does  not  require  that  all  corpora- 
tions exacting  tolls  should  be  placed  upon  the  same  footing  as 
to  rates;  but  that  justice  to  the  public  and  to  stockholders  may 
require  in  respect  to  one  road  rates  different  from  those  pre- 
scribed by  other  roads;  and  that  rates  on  one  road  may  be 
reasonable  and  just  to  all  concerned,  while  the  same  rates 
would  be  exorbitant  on  another  road.52 

§  398.  Regulation  of  Fares— Street  Railways— Obligation 
of  Contract.53 — The  legislative  power  to  regulate  the  exercise 
of  the  franchises  or  the  fares  of  a  street  railway  company  does 
not  empower  a  municipality  to  make  such  a  reduction  of  fares 
that  the  company  cannot  obtain  a  reasonable  return  on  its 
investment,  and  if  property  rights  are  invaded  to  that  extent 
such  reduction  constitutes  a  violation  of  the  Federal  Consti- 
tution.54 Nor  can  the  company  be  required  to  carry  passengers 
without  reward,  or  at  such  a  reduced  rate  of  fare  as  will  sub- 
stantially confiscate  or  take  away  property  without  compensa- 
tion or  due  process  of  law.55  It  is  held  that  conditions  may  be 
imposed  by  a  commissioner  of  highways,  in  granting  consent 
to  lay  tracks  on  town  highways,  for  transportation  between 
certain  points  at  a  specified  fare  and  also  for  transfers  to  con- 
necting lines;56  and  a  company  is  obligated  by  such  conditions 

52  Covington  &  Lexington  Turn-  When  city  may  not  reduce  fares. 
pike  R.  Co.  v.  Sandford,  164  U.  S.  See  Joyce  on  Electric  Law  (2d  ed.), 
578,  17  Sup.  Ct.  198,  41  L.  ed.  510.  §  519. 

53  See  §§  14,  17,  111,  112,  18S,  197,  Ordinance  as  to  "labor  tickets'*  at 
337,  338,  387,  herein,  as  to  franchises,  reduced  rate  and  transfers — When  a 
fares,  etc.,  of  street  railways.  contract.    See  Joyce  on  Electric  Law 

54  Milwaukee  R.  &  L.  Co.  v.  Mil-  (2d  ed.),  §  519a. 

waukee  (C.  C),  87  Fed.  577.  See  Federal  Constitution — Street  rail- 
§§  369,  390,  400,  herein.  road — Rates  of  fare.     See  Joyce  on 

55  Indianapolis  v.  Navin,  151  Ind.    Electric  Law  (2d  ed.),  §  5196. 

139,  41  L.  R.  A.  337,  14  Nat.  Corp.  Power  of  legislature  to  reduce  rates 

Rep.   774,   47   N.   E.   525,   rehearing  of  fare,  on  street  railroad,  for  students 

denied  in  151  Ind.  156,  30  Chic.  Leg.  during  summer  months.     See  Joyce 

N.  414,  51  N.  E.  80,  41  L.  R.  A.  344,  on  Electric  Law  (2d  ed.),  §  519c. 

5  Det.  L.  N.,  No.  19.  56  Gaedeke  v.  Staten  Island  M.  R. 

Municipality  may  regulate  rates  of  Co.,  60  N.  Y.  Supp.  598,  43  App.  Div. 

fare  on  electric  railways.     See  Joyce  514,   rehearing  denied   in   61    N.   Y. 

on  Electric  Law  (2d  ed.),  §  518.  Supp.  290,  46  App.  Div.  219. 

652 


RATES    AND    CHARGES  §    398 

or  regulations,  so  imposed  in  granting  a  franchise,  where  its 
line  is  operated  in  compliance  therewith.57  So  a  contractual 
relation  exists,  based  upon  a  sufficient  consideration,  and  the 
company  is  bound  to  carry  passengers  free  of  charge  within 
certain  limits,  where  that  condition  is  imposed  in  the  grant  of 
a  franchise  by  a  municipality  through  which  it  was  interested 
in  getting  its  line  of  street  railway  and  had  deposited  checks 
to  evidence  its  good  faith  in  constructing  such  line  in  pursuance 
of  the  grant.58  If  the  franchise  granted  by  a  township  pro- 
vides for  the  sale  of  trip  tickets  at  a  reduced  rate  between  a 
city  without  and  a  village  within  the  township,  such  sale  of 
tickets  may  be  made  at  any  point  on  the  line  within  or  outside 
of  the  township  granting  the  franchise.59  Where  a  statute 
authorizes  a  street  railroad  company  to  charge  as  much  as 
five  cents  fare,  even  though  it  reserves  the  right  to  amend  or 
repeal  the  enactment,  still  it  cannot,  as  to  a  company  organ- 
ized thereunder,  be  altered  by  provisions  which  would  make  the 
statute  unconstitutional  in  its  entirety.60  In  a  case  in  the 
Federal  Supreme  Court  it  is  held  that  a  consolidated  ordinance 
of  the  city  of  Cleveland,  and  ordinances  thereafter  passed  by 
the  municipality  and  accepted  by  certain  street  railway  com- 
panies, constituted  such  binding  contracts  in  respect  to  the 
rate  of  fare  to  be  exacted  upon  the  consolidated  and  extended 
lines  of  the  railway  companies  as  to  deprive  the  city  of  its 
rights  to  exercise  the  reservations  in  the  original  ordinances  as 
to  changing  the  rates  of  fare;  and  a  subsequent  ordinance 
reducing  the  rate  of  fare  to  be  charged  was  declared  to  be 
void  and  unconstitutional  within  the  impairment  clause  of  the 
Constitution  of  the  United  States.  It  was  also  decided  in  the 
same  case  that  the  passage  by  the  municipality  of  an  ordi- 
nance affecting  franchises,  already  granted  by  prior  ordinances 

57  Virginia  Passenger  &  Power  Co.    122  Mich.  677,  48  L.  R.  A.  84,  81 
v.  Commonwealth,   103  Va.  644,  49    N.  W.  927. 

S.  E.  995.  «o  Central  Trust  Co.  v.  Citizens' St. 

58  Hattersley  v.  Village  of  Water-  R.  Co.  (C.  C),  82  Fed.  1,  29  Chicago 
ville,  26  0hioCir.  Ct.  R.  226.  Leg.  X    117,  11  Nat.  Corp    Rep.  770, 

59  Rice  v.  Detroit,  Y.  &  A.  Ry.  Co.,  dismissed    in   83   Fed.   529,    15   Nat, 

Corp.  Rep.  529. 

653 


§  399     REGULATION  AND  CONTROL  CONTINUED — 

amounted  to  an  assertion  that  the  legislative  authority  vested 
in  it  to  pass  the  original  ordinance  gave  it  the  continued  power 
to  pass  subsequent  ordinances,  and  it  could  not  assail  the 
jurisdiction  of  the  Circuit  Court  on  the  ground  that  its  action 
in  impairing  the  contracts  which  resulted  from  prior  ordinances 
was  not  an  action  by  authority  of  the  State.61 

§  399.  Regulation  of  Fares — Street  Railways  Continued 
— Constitutional  Law — Contract  with  Company — Altera- 
tion.62— There  can  be  no  question  as  to  the  competency  of 
a  state  legislature,  unless  prohibited  by  constitutional  pro- 
visions, to  authorize  a  municipal  corporation  to  contract  with 
a  street  railway  company  as  to  the  rate  of  fares,  and  so  to  bind, 
during  the  specified  period,  any  future  common  council  from 
altering  or  in  any  way  interfering  with  such  contract.  Such 
a  contract  having  once  been  made,  the  power  of  the  city  over 
the  subject,  so  far  as  altering  the  rates  of  fare  or  other  matters 
properly  involved  in  and  being  a  part  of  the  contract,  is  sus- 
pended for  the  period  of  the  running  of  the  contract.  So  where 
binding  agreements  have  been  made  and  entered  into,  between 
a  city  on  the  one  side  and  certain  street  railway  companies  on 
the  other,  relating  to  rates  of  fare,  such  agreements  cannot 
be  altered  without  the  consent  of  both  sides;  those  binding 
agreements  constitute  a  contract  as  to  the  rates,  equally  bind- 
ing with  that  in  regard  to  taxes.  The  rate  of  fare  in  such  case 
having  been  fixed  by  positive  agreement,  under  express  leg- 
islative authority,  the  subject  is  not  open  to  alteration  there- 
after by  the  common  council  alone,  under  the  right  to  pre- 
scribe from  time  to  time  the  rules  and  regulations  for  the 
running  and  operation  of  the  road;  especially  so  where  the 

61  Cleveland,  City  of,  v.  Cleveland  contracts  contained  in  prior  ordi- 
Ry.  Co.,  194  U.S.  517,  48  L.  ed.  1102,  nances  passed  in  regard  to  street 
24  Sup.  Ct.  756.  Followed  in  Cleve-  railways,  compare  Railroad  Commis- 
land  v.  Cleveland  Electric  Ry.  Co.,  sion  Cases  (Stone  v.  New  Orleans  & 
201  U.  S.  529,  26  Sup.  Ct.  513,  50  Northwestern  Rd.  Co.,  116  U.  S.  352, 
L.  ed.  854.  As  to  the  power  of  the  29  L.  ed.  651,  6  Sup.  Ct.  334,  con- 
city  council  of  Cleveland  to  pass  sidered  in  §  412,  herein, 
ordinances  diminishing  the  rate  of  62  See  §  390,  herein, 
fare  on  street  railroads  in  view  of  the 

654 


RATES    AND    CHARGES 


399 


language  of  an  ordinance,  which  provides  that  the  rate  of  fare 
for  one  passenger  shall  not  be  more  than  five  cents,  does  not 
give  any  right  to  the  city  to  reduce  it  below  the  rate  of  five 
cents  established  by  the  company.  And  where  the  fixing  of 
rates  was  among  the  vital  portions  of  such  agreement  between 
the  parties,  it  cannot  be  supposed  that  there  was  any  inten- 
tion to  permit  the  common  council,  in  its  discretion,  to  make 
an  alteration  which  might  be  fatal  to  the  pecuniary  success  of 
the  company.63  If  a  street  railway  corporation  takes  a  legis- 
lative charter  subject  to  all  duties  and  restrictions  set  forth 
in  all  general  laws  relating  to  corporations  of  that  class,  it  can- 
not complain  of  the  unconstitutionality  of  a  prior  enacted 
statute  compelling  it  to  transport  children  attending  public 
schools  at  half  price.64 


93  Detroit  v.  Detroit  Citizens'  St. 
Ry.  Co.,  184  U.  S.  368,  46  L.  ed.  592, 
22  Sup.  Ct.  410.    See  §  412,  herein. 

84  Interstate  Consolidated  Street 
Ry.  Co.  v.  Commonwealth  of  Massa- 
chusetts, 207  U.  S.  79,  28  Sup.  Ct.  26, 
aff'g  187  Mass.  436.  As  appears  from 
the  headnotes  to  the  official  report, 
only  two  points  were  decided  in  this 
case,  one  of  which  is  stated  in  the 
above  text  and  the  other  in  §  243, 
herein,  but  the  court  also  discussed 
another  point,  viz.,  that  of  dis- 
crimination, and  evidently  there  was 
some  question  as  to  the  sufficiency  of 
the  proof.  Both  of  these  factors  will 
appear  from  the  following  quotation 
from  the  opinion  of  the  court,  de- 
livered by  Holmes,  J.,  as  follows: 
"This  was  a  complaint  against  the 
plaintiff  in  error  for  refusing  to  sell 
tickets  for  the  transportation  of  pu- 
pils to  and  from  the  public  schools  at 
one-half  the  regular  fare  charged  by 
it,  .i-  required  by  Mass.  Rev.  Laws, 
c.  112,  §72.  At  the  trial  the  rail- 
way company  admitted  the  fact,  but 
set  up  that  the  statute  was  uncon- 
stitutional, in  that  it  denied  to  the 


company  the  equal  protection  of  the 
laws  and  deprived  it  of  its  property 
without  just  compensation  and  with- 
out due  process  of  law.  In  support 
of  this  defense  it  made  an  offer  of 
proof  which  may  be  abridged  into  the 
propositions  that  the  regular  fare  was 
five  cents;  that  during  the  last  fiscal 
year  the  actual  and  reasonable  cost  of 
transportation  per  passenger  was 
3.86  cents,  or,  including  taxes,  4.10 
cents;  that  pupils  of  the  public 
schools  formed  a  considerable  part 
of  the  passengers  carried  by  it,  and 
that  the  one  street  railway  expressly 
exempted  by  the  law  transported 
nearly  one-half  the  passengers  trans- 
ported on  street  railways  and  re- 
ceived nearly  one-half  the  revenue 
received  for  such  transportation  in 
the  commonwealth.  The  offer  was 
stated  to  be  made  for  the  purpose 
of  showing  that  the  plaintiff  in  error 
could  not  comply  with  the  statute 
without  carrying  passengers  for  less 
than  a  reasonable  compensation  and 
for  less  than  cost.  The  offer  of 
proof  was  rejected,  and  a  ruling  that 
the   statute   was   repugnant   to   the 

655 


400 


REGULATION    AND    CONTROL    CONTINUED — 


§  400.  Regulation  of  Rates — Railroads.65 — The  rules  given 
under  a  preceding  section  as  to  regulation  of  rates  66  apply  in 
the  case  of  railroads  as  to  business  wholly  intrastate ; 67  but  it 
may  also  be  stated  here  that  where  property  has  been  clothed 


Fourteenth  Amendment  was  refused. 
The  plaintiff  in  error  excepted  and, 
after  a  verdict  of  guilty  and  sen- 
tence, took  the  case  to  the  Supreme 
Judicial  Court.  187  Massachusetts, 
436.  That  court  overruled  the  ex- 
ceptions, whereupon  the  plaintiff  in 
error  brought  the  case  here.  *  *  * 
The  section  of  the  revised  laws 
(c.  112,  §  72)  was  a  continuation  of 
St.  1900,  c.  197,  Rev.  Laws,  c.  226, 
§  2.  Commonwealth  v.  Auselvich, 
186  Massachusetts,  376,  379,  380. 
The  act  of  incorporation  went  into 
effect  March  15,  1901,  St.  1901, 
c.  159.  *  *  *  The  discrimina- 
tion alleged  is  the  express  excep- 
tion from  the  act  of  1900  of  the  Bos- 
ton Elevated  Railway  Company  and 
the  railways  then  owned,  leased  or 
operated  by  it.  But,  in  the  first 
place,  this  was  a  legislative  adjudica- 
tion concerning  a  specific  road,  as  in 
Wight  v.  Davidson,  181  U.  S.  371, 
45  L.  ed.  900,  21  Sup.  Ct.  616,  not  a 
general  prospective  classification  as 
in  Martin  v.  District  of  Columbia,  205 
U.  S.  135,  138,  51  L.  ed.  743,  27  Sup. 
Ct.  440.  A  general  law  must  be 
judged  by  public  facts,  but  a  specific 
adjudication  may  depend  upon  many 


things  not  judicially  known.  There- 
fore the  law  must  be  sustained  on  this 
point  unless  the  facts  offered  in  evi- 
dence clearly  show  that  the  exception 
cannot  be  upheld.  But  the  local  facts 
are  not  before  us,  and  it  follows  that 
we  cannot  say  that  the  legislature 
could  not  have  been  justified  in  thus 
limiting  its  action.  Covington  v. 
Lexington  Turnpike  Road  Co.  v. 
Sandford,  164  U.  S.  578,  579,  598, 
41  L.  ed.  560,  17  Sup.  Ct.  198.  In  the 
next  place,  if  the  only  ground  were 
that  the  charter  of  the  Elevated 
Railway  contained  a  contract  against 
the  imposition  of  such  requirement,  it 
would  be  attributing  to  the  Four- 
teenth Amendment  an  excessively 
nice  operation  to  say  that  the  im- 
munity of  a  single  corporation  pre- 
vented the  passage  of  an  otherwise 
desirable  and  wholesome  law.  It  is 
unnecessary  to  consider  what  would 
be  the  effect  on  the  statute  by  con- 
struction in  Massachusetts  if  the  ex- 
ception could  not  be  upheld.  For,  if 
in  order  to  avoid  the  Scylla  of  un- 
justifiable class  legislation,  the  law 
were  read  as  universal  (see  Dunbar  v. 
Boston  &  Providence  R.  R.  Co.,  181 
Massachusetts,  383,  386),  it  might  be 


65  See  §§  14,  17,  97-107,  129,  166- 
170,  184,  247,  255,  256,  322,  381-386, 
herein,  as  to  franchises,  fares,  regula- 
tion, etc.,  of  railroads. 

66  See  §  390,  herein.  See  also 
§§  369,  398,  herein. 

67  That  State  has  right  to  fix  rates 
for  railroad  companies,  see  also 
Lake  Shore  &  M.  S.  Ry.  Co.  v. 
Smith,  173  U.  S.  684,  19  Sup.  Ct.  565, 

656 


43  L.  ed.  858  [rev'g  Smith  v.  Lake 
Shore  &  M.  S.  Ry.  Co.,  114  Mich.  460, 
72  N.  W.  328,  4  Det.  L.  N.  662,  8  Am. 
&  Eng.  R.  Cas.  (N.  S.)  496],  per  Peck- 
ham,  J.;  Perkins  v.  Northern  Pac. 
Ry.  Co.  (C.  C),  155  Fed.  445, 
453. 

As  to  interstate  commerce  limita- 
tions upon  state  regulations,  see  §  402, 
herein. 


RATES    AND    CHARGES 


400 


with  a  public  interest,  the  legislature  may  fix  a  limit  to  that 
which  shall  in  law  be  reasonable  for  its  use.68  Railroad  com- 
panies are  carriers  for  hire.  Engaged  in  a  public  employment 
affecting  the  public  interest,  they  are,  unless  protected  by  their 


thought  by  this  court  to  fall  into  the 
Charybdis  of  impairing  the  obligation 
of  a  contract  with  the  elevated  road, 
although  that  objection  might  per- 
haps be  held  not  to  be  open  to  the 
plaintiff   in    error    here.      Hatch    v. 
Reardon,  204  U.  S.  152,  160,  27  Sup. 
Ct.  1S8,  51  L.  ed.  415.    The  objection 
that  seems  to  me,  as  it  seemed  to  the 
court  below,  most  serious  is  that  the 
statute  unjustifiably  appropriates  the 
property  of  the  plaintiff  in  error.    It 
is  hard  to  say  that  street  railway 
companies   are   not   subjected    to   a 
loss.     The  conventional  fare  of  five 
cents  presumably  is  not  more  than  a 
reasonable   fare,    and   it   is   at   least 
questionable  whether  street  railway 
companies  would  be  permitted  to  in- 
crease it  on  the  ground  of  this  burden. 
It  is  assumed  by  the  statute  in  ques- 
tion that  the  ordinary  fare  may  be 
charged  for  these  children  or  some  of 
them   when   not   going   to   or   from 
school.    Whatever  the  fare,  the  stat- 
ute fairly  construed  means  that  chil- 
dren going  to  or  from  school  must 
be   carried    for    half    the   sum   that 
would   be   reasonable   compensation 
for  their  carriage,  if  we  looked  only 
to  the  business  aspect  of  the  question. 
Moreover,  while  it  may  be  true  that 
in  some  cases  rates  or  fares  may  be 
reduced  to  an  unprofitable  point  in 
view  of  the  business  as  a  whole  or 
upon  special  considerations,  Minne- 
apolis &  St.  Louis  R.  It.  Co.  v.  Minne- 
sota,  186  U.  S.  256,  267,  46  L.  ed. 
1151,  22 Sup.  ct.  900,  it  is  not  enough 
to  justify  a  general  law  like  I  his,  thai 


the  companies  concerned   still  may 
be  able  to  make  a  profit  from  other 
sources,  for  all  that  appears.     Atlan- 
tic Coast  Line  R.  R.  Co.  v.   North 
Carolina     Corporation     Commission, 
206  U.  S.  1,  24,  25,  51  L.  ed.  933,  27 
Sup.  Ct.  585.     Notwithstanding  the 
foregoing    considerations    I    hesitat- 
ingly   agree    with    the    state    court 
that  the  requirement  may  be  justified 
under  what  commonly  is  called  the 
police  power.     The  obverse  way  of 
stating   this  power  in   the   sense   in 
which  I  am  using"  the  phrase  would  be 
that  constitutional  rights  like  others 
are  matters  of  degree  and  that  the 
great  constitutional  provisions  for  the 
protection  of  property  are  not  to  be 
pushed  to  a  logical  extreme,  but  must 
be  taken  to  permit  the  infliction  of 
some  fractional  and  relatively  small 
losses     without     compensation,     for 
some   at   least   of   the   purposes    of 
wholesome    legislation.      Martin    v. 
District  of  Columbia,  205  U.  S.  135, 
139,  51  L.  ed.  743,  27  Sup.  Ct.  450; 
Camfield  v.  United  States,  167  U.  S. 
51S,  524,  42  L.  ed.  260,  17  Sup.  Ct. 
864.     If  the  Fourteenth  Amendment 
is  not  to  be  a  greater  hamper  upon 
the  established  practices  of  the  States 
in  common  with  other  governments 
than    I    think    was    intended,    they 
must  be  allowed  a  certain  latitude  in 
the  minor  adjustments  of  life,  even 
though  by  their  action  the  burdens  of 
;i   put   of  the  community  are  some- 
wlint  increased.    The  traditions  and 
habits  of  centuries  were  not  intended 
to  be  overthrown  when  that  amend- 


Peik  v.  Chicago  &  Northwestern,  etc.,  Ry.  Co.,  94  U.  S.  It;  J.  2 1  L.  ed.  97. 
42  657 


§  400 


REGULATION  AND  CONTROL  CONTINUED — ■ 


charters,  subject  to  legislative  control  as  to  their  rates  of  fare 
and  freight;69  a  legislature  has  power  to  fix  rates  for  the  trans- 


ment  was  passed.  Education  is  one 
of  the  purposes  for  which  what  is 
called  the  police  power  may  be  exer- 
cised. Barbier  v.  Connolly,  113  U.  S. 
27,  31,  28  L.  ed.  923,  5  Sup.  Ct.  507. 
Massachusetts  always  has  recognized 
it  as  one  of  the  first  objects  of  public 
care.  It  does  not  follow  that  it 
would  be  equally  in  accord  with  the 
conceptions  at  the  base  of  our  con- 
stitutional law  to  confer  equal  favors 
upon  doctors,  or  workingmen,  or 
people  who  could  afford  to  buy 
1000-mile  tickets.  Structural  habits 
count  for  as  much  as  logic  in  drawing 
the  line.  And,  to  return  to  the  tak- 
ing of  property,  the  aspect  in  which 
I  am  considering  the  case,  general 
taxation  to  maintain  public  schools  is 
an  appropriation  of  property  to  a  use 
in  which  the  taxpayer  may  have  no 
private  interest,  and,  it  may  be, 
against  his  will.  It  has  been  con- 
demned by  some  theorists  on  that 
ground.  Yet  no  one  denies  its  con- 
stitutionality. People  are  accus- 
tomed to  it  and  accept  it  without 
doubt.  The  present  requirement  is 
not  different  in  fundamental  princi- 
ple, although  the  tax  is  paid  in  kind 
and  falls  only  on  the  class  capable 
of  paying  that  kind  of  tax — a  class 
of  quasi  public  corporations  specially 
subject  to  legislative  control.  Thus 
the  question  narrows  itself  to  the 
magnitude  of  the  burden  imposed — 
to  whether  the  tax  is  so  great  as  to 
exceed  the  limits  of  the  police  power. 
Looking  at  the  law  without  regard  to 
its  special  operation  I  should  hesitate 
to  assume  that  its  total  effect,  direct 
and  indirect,  upon  the  roads  outside 
of  Boston  amounted  to  a  more  serious 
burden  than  a  change  in  the  law  of 

658 


nuisance,  for  example,  might  be.  See, 
further,  Williams  v.  Parker,  188  U.  S. 
491,  47  L.  ed.  559,  23  Sup.  Ct.  440. 
Turning  to  the  specific  effect,  the 
offer  of  proof  was  cautious.  It  was 
simply  that  a  '  considerable  percent- 
age '  of  the  passengers  carried  by  the 
company  consisted  of  pupils  of  the 
public  schools.  This  might  be  true 
without  the  burden  becoming  serious. 
I  am  not  prepared  to  overrule  the  de- 
cision of  the  legislature  and  of  the 
highest  court  of  Massachusetts  that 
the  requirement  is  reasonable  under 
the  conditions  existing  there,  upon 
evidence  that  goes  no  higher  than 
this.  It  is  not  enough  that  a  statute 
goes  to  the  verge  of  constitutional 
power.  We  must  be  able  to  see 
clearly  that  it  goes  beyond  that 
power.  In  case  of  real  doubt  a  law 
must  be  sustained.  Mr.  Justice  Har- 
lan is  of  opinion  that  the  constitu- 
tionality of  the  act  of  1900  is  neces- 
sarily involved  in  the  determination 
of  this  case.  He  thinks  the  act  is  not 
liable  to  the  objection  that  it  denies 
to  the  railroad  company  the  equal 
protection  of  the  laws.  Nor  does 
he  think  that  it  can  be  held,  upon 
any  showing  made  by  this  record,  to 
be  unconstitutional  as  depriving  the 
plaintiff  in  error  of  its  property  with- 
out due  process  of  law.  Upon  these 
grounds  alone,  and  independent  of 
any  other  question  discussed,  he  joins 
in  a  judgment  of  affirmance.  Judg- 
ment affirmed." 

69  Chicago,  Burlington  &  Quincy  R. 
Co.  v.  Iowa,  94  U.  S.  155,  24  L.  ed. 
94,  cited  in  Reagan  v.  Farmers'  Loan 
&  Trust  Co.,  154  U.  S.  362,  397,  38 
L.  ed.  1014,  14  Sup.  Ct.  1047;  Wa- 
bash, St.  L.  &  Pacif.  R.  Co.  v.  Illinois, 


RATES    AXD    CHARGES  §    400 

portation  of  passengers  by  railways,  and  the  extent  of  judicial 
interference  is  protection  against  unreasonable  rates.70  Again, 
a  railroad  is  a  public  highway  and  none  the  less  so  because 
constructed  and  maintained  through  the  agency  of  a  corpora- 
tion deriving  its  existence  and  powers  from  the  State.  Such 
a  corporation  is  created  for  public  purposes.  It  performs  a 
function  of  the  State.  Its  authority  to  exercise  the  right  of 
eminent  domain  and  to  charge  tolls  is  given  primarily  for  the 
benefit  of  the  public.  It  is,  therefore,  under  governmental 
control,  subject,  of  course,  to  the  constitutional  guarantees 
for  the  protection  of  its  property.71  A  corporation  maintain- 
ing a  public  highway,  although  it  owns  the  property  it  em- 
ploys for  accomplishing  public  objects,  must  be  held  to  have 
accepted  its  rights,  privileges  and  franchises,  subject  to  the 
condition  that  the  government  creating  it,  or  the  government 
within  whose  limits  it  conducts  its  business,  may  by  legislation 
protect  the  people  against  the  exaction  of  unreasonable  charges 
for  the  services  rendered  by  it;  but  it  is  equally  true  that  the 
corporation  performing  such  public  services,  and  the  people 
financially  interested  in  its  business  and  affairs,  have  rights 
that  may  not  be  invaded  by  legislative  enactment  in  disre- 

118  U.  S.  557,   564,  30  L.  ed.  244,  the  amount  of  the  tolls,  unless  they 

7  Sup.  Ct.  4;   Railroad  Commission  have    deprived    themselves    of    that 

Cases  (Stone  v.  Farmers'  Loan  &  Tr.  power  by.  a  legislative  contract  with 

Co.),  116  U.  S.  307,  325,   29  L.  ed.  the  owners  of  the  land.    Beekman  v. 

636,  6  Sup.  Ct.  334,   348,   34!),   388,  Saratoga  &  Schenectady  Rd.  Co.,  3 

391,    1191;  Ruggles  v.   Illinois,    108  Paige  Ch.  (N.  Y.)  45. 

U.  S.  526,  531,  27  L.  ed.  812,  2  Sup.  As  to  statute  fixing  maximum  tolls 

Ct.  832;  Sinking  Fund  Cases  (Union  to  be  charged  by  railroad  company 

Pacific  R.  Co.  v.   United  States  and  and   remedy   to  persons   injured   for 

Central  Pacific  R.  Co.  v.  Gallatin),  00  violation  of  act,  see  Attorney  General 

U.  S.  700,  719,  25  L.  ed.  496;  Winona  v.  Chicago  &  Northwestern  Rd.  Co., 

&  St.  Peter  R.  Co.  v.  Blake,  04  U.  S.  35  Wis.  425. 

ISO,  24  I,,  ed.  00;  I'eik  v.  Chicago  &  When    legislature  cannot  regulate 

X.  \V.  R.  Co.,  94  C.  S.  164,  24  I.,  ed.  tolls,  see  Attorney  General  v.  Chicago 

07.    See  also  Dow  v.  Beidelman,  125  &  Northwestern     Rd.    Co.,    35    Wis. 

U.  S.  680,  31   I,.  .-1.  S41.  425. 

The  legislature  may  regulate  the  7"  Chicago  &  G.  T.  Ry.  Co.  v.  Well- 
use  of  a  franchise,  which  consists  of  man,  143  U.  S.  339,  30  I;,  ed.  170,  12 
the  privilege  of  making  a  railroad  and  Sup.  Ct.  400.     See  §  407,  herein, 
taking  tolls  thereon,  and  it  may  limit  7'  Sec  §§  07-107,  herein. 

659 


§  401 


REGULATION  AND  CONTROL  CONTINUED- 


gard  of    the  fundamental  guarantees    for  the  protection    of 
property.72 


§  401.  Regulation  of  Rates — Powers  of  Railroad  and  Like 
Commissioners. — We  have  seen  that  a  State  may  lawfully 


72  Smyth  v.  Ames,  169  U.  S.  466, 
42  L.  ed.  819,  18  Sup.  Ct.  418.  See 
§  364,  herein. 

"The  control  which,  by  common 
law  and  by  statute,  is  exercised  over 
common  carriers  is  conclusive  upon 
the  point  that  the  right  of  the  legis- 
lature to  regulate  the  charges  for 
services  in  connection  with  the  use 
of  property,  does  not  in  every  case 
depend  upon  the  question  of  legal 
monopoly.  From  the  earliest  period 
of  the  common  law  it  has  been  held 
that  common  carriers  were  bound  to 
carry  for  a  reasonable  compensation. 
They  were  not  at  liberty  to  charge 
whatever  sum  they  pleased,  and 
even  where  the  price  of  carriage  was 
fixed  by  the  contract  or  convention 
of  the  parties,  the  contract  was  not 
enforceable  beyond  the  point  of  rea- 
sonable compensation.  From  time 
to  time  statutes  have  been  enacted  in 
England  and  in  this  country,  fixing 
the  sum  which  should  be  charged 
by  carriers  for  the  transportation  of 
passengers  and  property,  and  the 
validity  of  such  legislation  has  not 
been  questioned.  But  the  business  of 
common  carriers,  until  recent  times, 
was  conducted  almost  exclusively  by 
individuals  for  private  emolument, 
and  was  open  to  every  one  who 
chose  to  engage  in  it.  The  State  con- 
ferred no  franchise  and  extended  to 
common  carriers  no  benefit  or  pro- 
tection, except  that  general  protec- 
tion which  the  law  affords  to  all 
persons  and  property  within  its  juris- 
diction. The  extraordinary  obliga- 
tions imposed  upon  carriers  and  the 

660 


subjection  of  the  business  to  public 
regulation  were  based  on  the  char- 
acter of  the  business,  or,  in  the  lan- 
guage of  Sir  William  Jones,  upon  the 
consideration  'that  the  calling  is  a 
public  employment'  (Jones  on  Bail- 
ments, Appendix).  It  is  only  a  pub- 
lic employment  in  the  sense  of  the 
language  of  Lord  Hale,  that  it  was 
'affected  with  a  public  interest,'  and 
the  imposition  of  the  character  of  a 
public  business  upon  the  business  of  a 
common  carrier  was  made  because 
public  policy  was  deemed  to  require 
that  it  should  be  under  public  regu- 
lation. The  principle  of  the  common 
law  that  common  carriers  must  serve 
the  public  for  a  reasonable  compensa- 
tion became  a  part  of  the  law  of  this 
State,  and  from  the  adoption  of  the 
constitution  has  been  part  of  our 
municipal  law.  It  is  competent  for 
the  legislature  to  change  the  rule  of 
reasonable  compensation,  as  the 
matter  was  left  by  the  common  law, 
and  prescribe  a  fixed  and  definite 
compensation  for  the  services  of 
common  carriers.  This  principle  was 
declared  in  the  Munn  Case  [Munn 
v.  Illinois,  94  U.  S.  (4  Otto),  113,  24 
L.  ed.  77],  which  was  cited  with  ap- 
proval on  this  point  in  Sawyer  v. 
Davis  (136  Mass.  239).  It  accords 
with  the  language  of  Chief  Justice 
Shaw  in  Commonwealth  v.  Alger 
(7  Cush.  53):  'Whenever  there  is  a 
general  right  on  the  part  of  the 
public,  and  a  general  duty  of  the 
landowner,  or  any  other  person  to  re- 
spect such  right,  we  think  it  is  com- 
petent for  the  legislature  by  a  specific 


RATES   AND   CHARGES  §   401 

create  bodies  designated  as  railroad  commissioners,  railroad 
and  warehouse  commissioners,  state  corporation  commission- 
ers, etc.,  and  delegate  to  them  the  authority  to  exercise  cer- 
tain powers.73  So  a  statute  may  constitutionally  create  a 
commission  and  charge  it  with  the  duty  of  supervising 
railroads,74  and  making  rates ; 75  and  under  the  statutes  of  a 

enactment    to    prescribe    a    precise,    legislation  are  corporations  deriving 
practical  rule  for  declaring,  establish-    their  existence  from  the  State,  but 
ing  and  securing  such  right  and  en-    upon  the  fact  that  the  corporations 
forcing  respect  for  it.'     The  practice   are  common  carriers,   and  therefore 
of  the  legislature  in  this  and  other    subject  to  legislative  control.     The 
States  to  prescribe  a  maximum  rate    State  in   constituting   a  corporation 
for  the  transportation  of  persons  or   may   prescribe   or    limit    its   powers 
property  on  railroads  is  justified  upon    and  reserve  such  control  as  it  sees 
this  principle.     Where   the  right  of   fit,    and    the    body    accepting    the 
the  legislature  to  regulate  the  fares    charter    takes    it    subject    to    such 
or  charges  on  railroads  is  reserved  by    limitations  and  reservations,  and  is 
the  charter  of  incorporation,  or  the    bound  by  them.    The  considerations 
charter  was  granted  subject  to  the   upon  which  a  corporation  holds  its 
general  right  of  alteration  or  repeal    franchises  are  the  duties  and  obliga- 
by  the  legislature,  the  power  of  the    tions  imposed  by  the  act  of  incorpo- 
legislature  in  such  cases  to  prescribe   ration.     But  when  a  corporation  is 
the  rate  of  compensation  is  a  part  of    created  it  has  the  same  rights  and 
the  contract,  and  the  exercise  of  the    the   same   duties,    within   the   scope 
power   does   not   depend   upon   any   marked   out   for   its   action,    that   a 
general  legislative  authority  to  regu-    natural  person  has.     Its  property  is 
late  the  charges  of  common  carriers,    secured  to  it  by  the  same  constitu- 
But  the  cases  are  uniform  that  where    tional  guaranties,  and  in  the  manage- 
there  is  no  reservation  in  the  char-    ment  of  its  property  and  business  is 
ter   the   legislature    may,    neverthe-    subject   to   regulation  by  the  legis- 
less,  interfere  or   prescribe   or   limit    lature   to   the  same  extent  only  as 
the  charges  of  railroad  corporations,    natural  persons,  except  as  the  power 
(Granger  Cases  [Munn  v.  Illinois,  94    may  be  extended  by  its  charter.    The 
U.  S.   (4  Otto)    113,   24  L.   ed.   77];    mere  fact  of  a  corporate  character 
Dow  v.  Beidelman,  125  U.  S.  680,  31    does  not  extend  the  power  of  legis- 
L.  ed.  841,  8  Sup.  Ct.  1028;  Earl,  J.,    lative  regulation."     People  v.  Budd, 
in  People  ex  rel.  Kimball  v.  Boston  &    117  N.  Y.  1,  26  N.  Y.  St.  R.  533,  22 
Albany  Rd.  Co.,  70  N.  Y.  569;  Ruger,    N.  E.  670,  680,  7  N.  Y.  Cr.  R.  189, 
Ch.  J.,  in  Buffalo  East  Side  Rd.  Co.    per  Andrews,  J. 
v.  Buffalo  Street  Rd.  Co.,  Ill  N.  Y.        "See  §§  167-170,  herein. 
132,  19  N.  Y.  St.  R.  571,   19  N.  E.        71  Railroad       Commission       Cases 
63.)      The    power    of    regulation    in    (Stone    v.    Farmers'    Loan    &    Trust 
these  cases  does  not  turn  upon  the   Co.),  116  U.  S.  307,  29  L.  ed.  636,  6 
fact  that  the  entities  affected  by  the    Sup.  ft .   334. 


"State  v.  Atlantic  Coasl   I, me  U.  Co.  (Fla.,  1906),  40  So.  875. 

661 


§    402  REGULATION    AND    CONTROL   CONTINUED — 

State  the  duty  of  enforcing  such  rates  as  it  may  fix  can  be 
vested  in  a  railroad  commission.76  Again,  the  creation  of  a 
railroad  or  corporation  commission  by  a  state  statute  may 
operate  as  a  repeal  of  a  statute  empowering  railroads  to  fix 
passenger  rates,  or  a  statute  giving  such  authority  to  railroads 
may  repeal  an  enactment  creating  such  commission  or  extend- 
ing and  enlarging  its  powers.77  But  a  statute  creating  a  rail- 
road and  warehouse  commission  is  unconstitutional  where  it 
makes  the  rates  as  fixed  by  such  commission  final  and  con- 
clusive and  deprives  a  railroad  company  of  its  right  to  judicial 
investigation  by  due  process  of  law.78  Again,  when  railroad 
commissioners  are  authorized  to  investigate  and  report  to  the 
legislature  they  have  no  implied  authority  to  adjust,  and  can- 
not require  the  company  to  refund  excess  charges  to  the  ship- 
per.79 

§  402.  Railroads — Regulation  of  Rates  by  Congress — 
Reservation  of  Right  to  Alter  or  Amend.  — Congress  has  power 
to  require  a  uniform  freight  rate,  and  the  rate  with  which 

That    statute    creating    grain    and  particulars    complained    of    by    the 

xoarehouse  commission  is  not  uncon-  railroad  company.     It  deprives  the 

stitutional  as  denying  equal  protec-  company  of  its  right  to  a  judicial  in- 

tion  of  the  laws,  see  Globe  Elevator  vestigation,  by  due  process  of  law, 

Co.  v.  Andrew  (C.  C),  144  Fed.  871.  under  the  forms  and  with  the  ma- 

76  McChord  v.  Louisville  &  N.  R.  chinery  provided  by  the  wisdom  of 
Co.,  183  U.  S.  483,  46  L.  ed.  289,  22  successive  ages  for  the  investigation 
Sup.  Ct.  165.  judicially  of  the  truth  of  a  matter  in 

77  Southern  Ry.  Co.  v.  McNeill,  155  controversy,  and  substitutes  there- 
Fed.  756.  See  Matthews  v.  Board  for,  as  an  absolute  finality,  the  action 
of  Corporation  Commrs.  of  N.  C,  97  of  a  railroad  commission  which,  in 
Fed.  400;  Pacific  Express  Co.  v.  view  of  the  powers  conceded  to  it  by 
Cornell  (Neb.),  81  N.  W.  377.  the  state  court,  cannot  be  regarded 

78  Chicago,  Milwaukee  &  St.  Paul  as  clothed  with  judicial  functions  or 
Ry.  Co.  v.  Minnesota,  134  U.  S.  418,  possessing  the  machinery  of  a  court 
33  L.  ed.  970,  10  Sup.  Ct.  462,  702.  of  justice."     See  §  407,  herein. 

The  court   (at  p.  456),   per  Blatch-        79  Oregon     Railroad     Commrs.     v. 

ford,  J.,  said:  "This  being  the  con-  Oregon  R.  &  Nav.  Co.,  17  Oreg.  65, 

struction  of  the  statute  by  which  we  2  L.  R.  A.  195,  19  Pac.  702.    See  this 

are  bound  in  considering  the  present  case  also  upon  point  as  to  when  no 

case,  we  are  of  opinion  that,  so  con-  authority  exists  to  enter  complaint 

strued,  it  conflicts  with  the  Consti-  in  Circuit  Court  for  refusal  to  obey 

tution  of  the  United  States  in  the  orders. 

662 


RATES    AND    CHARGES  §    402 

constitutions  and  statutes  are  concerned  is  the  net  cost  to 
the  shipper  of  the  transportation  of  his  property.  As  uni- 
formity is  the  very  essence  of  regulation  and  Congress  has 
plenary  power  to  regulate  interstate  commerce,  the  true  rule 
must  be  that  as  a  logical  and  necessary  incident  of  the  power 
to  regulate,  Congress  may  prohibit  the  doing,  by  any  person 
whatsoever,  of  any  act  or  thing  the  effect  of  which  is  to  pre- 
vent or  disturb  uniformity.80  Again,  Congress  has  undoubted 
power  to  subject  to  regulations  adopted  by  it  every  carrier 
engaged  in  interstate  commerce.81  "I  have  no  doubt  that 
Congress  might  very  properly,  under  the  constitutional  pro- 
vision giving  it  the  entire  power  of  control  over  interstate 
commerce,  assume  control  of  the  avenues  of  interstate  com- 
merce, of  the  railroads  which  are  engaged  in  interstate  com- 
merce, and  of  all  rates  which  are  collected  by  those  railroads, 
whether  within  the  States  or  without  the  States,  because  the 
matter  of  those  rates  would  affect  these  avenues  of  interstate 
commerce,  and  might  affect  their  ability  to  continue  as  ave- 
nues of  interstate  commerce.  The  rates,  if  they  were  fixed 
by  the  States,  might  be  fixed  so  low  in  one  State,  and  another, 
and  all  of  them,  that  the  railroads  could  not  exist  and  could 
not  perform  their  functions  as  carriers  of  interstate  commerce, 
and  for  the  purpose  of  securing  these  railroads  as  carriers  of 
interstate  commerce,  Congress  would  have  the  power,  under 
that  provision,  to  take  the  entire  control  of  the  regulation 
and  the  rates  which  the  carriers  of  interstate  commerce,  upon 
the  avenues  of  interstate  commerce,  would  have  the  right  to 
charge,  the  same  as  Congress  has  assumed  the  right,  under  the 
very  same  clause,  to  control  the  navigation  of  the  coastwise 
waters,  bays  and  lakes;  and  the  rivers  running  through  the 
country,  even  if  the  rivers  are  entirely  within  a  particular 
State.  *  *  *  But,  as  has  been  held  by  the  Supreme  Court 
in  many  eases,  where  Congress  has  the  power  to  exercise  con- 

80  Interstate  Commerce  Commis-  Co.  v.  Interstate  Commerce  Com- 
sion  v.  Reichmann  (C.  C),  145  Fed.  mission,  200  U.  S.  361,  50  L.  ed.  515, 
235,  238.  2G  Sup.  Ct.  272. 

81  New  York,  New  Haven  &  H.  R. 

663 


§  403     REGULATION  AND  CONTROL  CONTINUED — 

trol  and  fails  to  exercise  it,  the  State  may  exercise  control 
in  all  matters  that  are  proper — police  regulations  at  any  rate. 
And  until  Congress  does  exercise  that  control,  and  certainly 
while  the  Supreme  Court  continues  to  hold,  as  it  has,  that  the 
States  may  regulate  the  local  commerce  that  is  entirely  within 
the  State,  I  do  not  think  that  it  would  be  proper  to  hold  that 
these  acts  are  void  as  invasions  of  the  right  of  Congress  to  con- 
trol exclusively  the  avenues  of  interstate  commerce."  82  In 
the  case  of  the  Union  Pacific  Railroad  Company,  incorporated 
by  the  act  of  1862,83  it  is  held  that  until  Congress,  in  the  ex- 
ercise of  the  power  specially  reserved  in  that  enactment,  or 
its  power  under  the  general  reservation  made  of  authority  to 
add  to,  alter,  amend  or  repeal  that  act,  prescribes  rates  to 
be  charged  by  that  company,  it  remains  with  the  States 
through  which  the  road  passes  to  fix  rates  for  transportation 
beginning  and  ending  within  their  respective  limits.84 

§  403.  Object  of  Interstate  Commerce  Act — Powers  and 
Jurisdiction    of    Interstate    Commerce    Commission. — The 

principal  objects  of  the  Interstate  Commerce  Act  were  to  se- 
cure just  and  reasonable  charges  for  transportation;  to  prohibit 
unjust  discriminations  in  the  rendition  of  like  services  under 
similar  circumstances  and  conditions;  to  prevent  undue  or 
unreasonable  preference  to  persons,  corporations,  or  localities; 
to  inhibit  greater  compensation  for  a  shorter  than  for  a  longer 
distance  over  the  same  line;  and  to  abolish  combinations  for 
the  pooling  of  freight.  It  was  not  designed  to  prevent  com- 
petition between  different  roads,  but  rather  to  encourage  com- 
petition. The  statute  does  not  define  undue  or  unreasonable 
preference  or  advantage.     That  must  be  left  to  the  circum- 

82  Perkins   v.    Northern   Pac.    Ry.  Ry.  Co.,  157  Fed.  321,  342;  United 

Co.  (C.  C),  155  Fed.  445,  per  Loch-  States  v.   Great  Northern  Ry.  Co., 

ran,  Dist.  J.  (a  case  of  state  regu-  145  Fed.  438.     See  §§  125,  365-369, 

lation   of    rates    to    be    charged    by  herein. 

railroads     on     intrastate    business).  83  Act  July  1,  1862,  §  18. 

Examine  State  Freight  Tax  Case,  15  84  Smyth  v.  Ames,  169  U.  S.  466, 

Wall.  (82  U.  S.)  232,  21  L.  ed.  146;  42  L.  ed.  819,  18  Sup.  Ct.  418.    See 

United  States  v.  Colorado  &  N.  W.  §  402,  herein. 

664 


RATES   AND   CHARGES  §   403 

stances  of  each  case.85  Again,  the  Interstate  Commerce  Act 
was  enacted  to  secure  equality  of  rates  and  to  destroy  favor- 
itism, and  for  those  purposes  is  a  remedial  statute,  to  be  in- 
terpreted so  as  to  reasonably  accomplish  them ;  its  prohibitions 
against  directly  or  indirectly  charging  less  than  published  rates 
are  all  embracing  and  applicable  to  every  method  by  which 
the  forbidden  results  could  be  brought  about.86  The  purpose 
of  the  second  section  of  said  act  is  to  enforce  equality  between 
shippers  over  the  same  line,  and  prohibit  any  rebate  or  other 
device  by  which  two  shippers  shipping  over  the  same  line,  the 
same  distance,  under  the  same  circumstances  of  carriage  are 
compelled  to  pay  different  prices  therefor.87  When  a  state 
railroad  company  whose  road  lies  within  the  limits  of  a  State 
enters  into  the  carriage  of  foreign  freight  by  agreeing  to  re- 
ceive the  goods  by  virtue  of  foreign  through  bills  of  lading,  and 
to  participate  in  through  rates  and  charges,  it  thereby  becomes 
part  of  a  continuous  line,  not  made  by  consolidation  with 
foreign  companies,  but  by  an  arrangement  for  the  continuous 
carriage  or  shipment  from  one  State  to  another;  and  thus  be- 
comes amenable  to  the  Federal  act  in  respect  to  such  inter- 
state commerce;  and  having  thus  subjected  itself  to  the  con- 
trol of  the  Interstate  Commerce  Commission,  it  cannot  limit 
that  control  in  respect  to  foreign  traffic  to  certain  points  on 
its  road  to  the  exclusion  of  other  points.  Such  commission  is 
not,  however,  empowered,  either  expressly  or  by  implication, 
to  fix  rates  in  advance;  but,  subject  to  the  prohibition  that 
their  charges  shall  not  be  unjust  or  unreasonable,  and  that 
they  shall  not  unjustly  discriminate,  so  as  to  give  undue  pref- 

» Interstate    Commerce    Commis-  16   Sup.   Ct.    666.     See  also    §153, 

sion  v.  Chicago  Great   Western  Ry.  herein. 

I  !o .  (C.  C),  141  Fed.  1003,  1014,  per  87  Interstate    Commerce    Commis- 

Bethea,  Dist.  J.  sion  v.  Alabama  Midland  Ry.  Co., 

"  New  York,  New  Haven  &  H.  Rd.  168  U.  S.  144,  18  Sup.  Ct,  45,  42  L. 

Co.  v.  Interstate  Commerce  Commis-  ed.  414. 

sion,  200  U.  S.  361,  26  Sup.  Ct.  272,  The    phrase    "under    substantially 

50  L.  ed.  515.     See  Texas  &  Pacific  similar  circumstances  and  conditions," 

Ry.  Co.  v.  Interstate  Commerce  Com-  as  used  in  the  second  section  of  the 

mission,  162  U.  S.  197,  40  L.  ed.  «)4(),  Interstate  Commerce  Act.  refers  to 

the  matter  of  carriage,  and  does  not 

665 


§  403     REGULATION  AND  CONTROL  CONTINUED — 

erence  or  disadvantage  to  persons  or  traffic  similarly  circum- 
stanced, the  act  to  regulate  commerce  leaves  common  carriers 
as  they  were  at  the  common  law,  free  to  make  special  con- 
tracts looking  to  the  increase  of  their  business,  to  classify  their 
traffic,  to  adjust  and  apportion  their  rates  so  as  to  meet  the 
necessities  of  commerce,  and  generally  to  manage  their  im- 
portant interests  upon  the  same  principles  which  are  regarded 
as  sound  and  adopted  in  other  trades  and  pursuits.88  Rates 
fixed  by  the  commission,  in  so  far  as  it  is  empowered  to  fix 
them,  should  be  regulated  to  each  point  independently  and  not 
be  made  to  one  point  dependent  upon  the  rise  or  fall  of  those 
to  another  point.89  The  Interstate  Commerce  Commission,  in 
making  an  investigation  on  the  complaint  of  a  shipper  has, 
in  the  public  interest,  the  power,  disembarrassed  by  any  sup- 
posed admissions  contained  in  the  statement  of  the  complaint, 
to  consider  the  whole  subject  and  the  operation  of  the  new 
classification  complained  of  in  the  entire  territory;  also  how 
far  its  going  into  effect  would  be  just  and  reasonable  and  would 
create  preferences  or  engender  discriminations  and  whether 
it  is  in  conformity  with  the  requirements  of  the  act  to  regulate 
commerce.  And  if  it  finds  that  the  new  classification  disturbs 
the  rate  relations  thereupon  existing  in  the  official  classification 
territory  and  creates  preferences  and  engenders  discriminations 
it  may,  in  order  to  prevent  such  result,  prohibit  the  further 
enforcement  of  the  changed  classification,  and  an  order  to  that 

include     competition     among     rival  Louisville  &  N.  R.  Co.  v.  Behlmer, 

routes.     Interstate  Commerce  Com-  175   U.  S.  648,  663,   672,  44   L.  ed. 

mission  v.  Alabama  Midland  Ry.  Co.,  309,  20  Sup.  Ct.  209;  Interstate  Com- 

168  U.  S.   144,   18  Sup.   Ct.   45,   42  merce  Commission  v.  Alabama  Mid- 

L.  ed.  414;  Wight  v.  United  States,  land  Ry.  Co.,  168  U.  S.  144,  162,  18 

167  U.  S.  512,  42  L.  ed.  258,  17  Sup.  Sup.  Ct.  45,  42  L.  ed.  414;  Interstate 

Ct.    822.     As    to    competition,    see  Commerce  Commission  v.  Cincinnati, 

§§  413-415,  herein.  N.  O.  &  T.  P.  Ry.  Co.,  167  U.  S.  479, 

88  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  493,  508,  42  L.  ed.  243,  17  Sup.  Ct. 

v.  Interstate  Commerce  Commission,  896;  United  States  v.  Trans-Missouri 

162   U.   S.   184.     See   the  following  Freight  Assoc,  166  U.  S.  290,  373,  17 

cases:  Interstate  Commerce  Commis-  Sup.  Ct.  540,  41  L.  ed.  1007. 

sion  v.  Chicago  Great  Western  Ry.  89  Interstate    Commerce    Commis- 

Co.,  209  U.  S.  108,  119  (considered  sion  v.  Louisville  &  N.  R.  Co.,  73 

and  quoted  from  under  §  415,  herein) ;  Fed.  409. 

666 


RATES   AND   CHARGES  §   404 

effect  is  within  the  power  conferred  by  Congress  on  the  com- 
mission; and  so  held  as  to  an  order  of  the  commission  directing 
carriers  from  further  enforcing  throughout  official  classification 
territory  a  changed  classification  in  regard  to  common  soap 
in  less  than  carload  lots.90 

§  404.  Regulation  of  Rates — Railroads — Interstate  Com- 
merce— Taxation  of  Freight  or  Passengers. — A  state  statute 
which  relates  to  discrimination  in  transportation  charges  of 
goods  and  which  includes  the  transportation  under  one  con- 
tract and  under  one  voyage  of  goods  from  within  one  State 
to  another  States  violates  the  Federal  Constitution.  Such  a 
transportation  is  " commerce  among  the  States,"  even  as  to 
that  part  of  the  voyage  which  lies  within  the  State  where  the 
statute  was  enacted.  There  may,  however,  be  transportation 
of  goods  which  is  begun  and  ended  within  the  limits  of  a  State, 
and  disconnected  with  any  carriage  outside  of  the  State  which 
is  not  commerce  among  the  States.  The  latter  is  subject  to 
regulation  by  the  State;  but  the  former  is  national  in  its  char- 
acter, and  its  regulation  is  confided  to  Congress  exclusively, 
by  that  clause  of  the  Constitution  which  empowers  it  to  regu- 
late commerce  among  the  States.  This  principle  or  doctrine 
is  asserted  in  a  Federal  case  where  certain  cases 91  are  examined 
and  held,  in  view  of  other  cases  decided  near  the  same  time, 
not  to  establish  a  contrary  doctrine.  And  the  Supreme  Court 
declares  that,  notwithstanding  what  is  said  in  those  cases,  it 
still  holds,  and  has  never  consciously  held  otherwise,  that  a 
statute  of  a  State,  intended  to  regulate  or  to  tax  or  to  impose 
any  other  restriction  upon  the  transmission  of  persons  or 
property  or  telegraphic  messages  from  one  State  to  another,  is 
not  within  that  class  of  legislation  which  the  States  may  enact 
in  the  absence  of  legislation  by  Congress;  and  that  such  stat- 

80 Cincinnati,  Hamilton  &  Dayton  24  L.  ed.  77;  Chicago,  Burlington  & 
Ry.  Co.  v.  Inter  'it-  <  lommerce  Com-  Quincy  Rd.  Co.  v.  Iowa,  94  U.  S.  155, 
mission,  206  U.  S.  142,  51  L.  ed.  995,  24  L.  ed.  94;  Peik  v.  Chicago  & 
27  Sup.  Ct.  648,  aff'g  1  1G  Fed.  559.        Northwestern  Ry.,  94  U.  S.  164,  24 

"Munn  v.  Illinois,  94   I".  S.  113,    L.  ed.  1)7. 

067 


§  404 


REGULATION  AND  CONTROL  CONTINUED- 


utes  are  void  even  as  to  that  part  of  such  transmission  which 
may  be  within  the  State.92  The  transportation  of  freight,  or 
of  the  subjects  of  commerce,  is  a  constituent  part  of  commerce 
itself.  A  tax  upon  freight,  transported  from  State  to  State,  is 
a  regulation  of  commerce  among  the  States.  Whenever  the 
subjects  in  regard  to  which  a  power  to  regulate  commerce  is 
asserted  are  in  their  nature  national,  or  admit  of  one  uniform 
system  or  plan  of  regulation,  they  are  exclusively  within  the 
regulating  control  of  Congress.  Transportation  of  passengers 
or  merchandise  through  a  State,  or  from  one  State  to  another, 
is  of  this  nature.  A  statute,  therefore,  of  a  State  imposing  a 
tax  upon  freight,  taken  up  within  the  State  and  carried  out  of 
it,  or  taken  up  without  the  State  and  brought  within  it,  is  re- 
pugnant to  that  provision  of  the  Constitution  of  the  United 
States  which  ordains  that  "Congress  shall  have  power  to  reg- 
ulate commerce  with  foreign  nations  and  among  the  several 
States,  and  with  the  Indian  tribes."  93  Again,  a  railroad  cor- 
poration cannot  be  compelled  to  pay  a  tax  on  each  passenger 


92  Wabash,  St.  L.  P.  Ry.  Co.  v. 
Illinois,  118  U.  S.  557,  30  L.  ed.  244, 
7  Sup.  Ct.  4.  This  decision  has  been 
cited  in  numerous  cases. 

93  State  Freight  Tax  Case,  15  Wall. 
(82  U.  S.)  232,  21  L.  ed.  146.  See,  as 
to  principle  involved,  Addyston  Pipe 
&  Steel  Co.  v.  United  States,  175 
U.  S.  211,  227,  44  L.  ed.  136,  20  Sup. 
Ct.  96;  Scott  v.  Donald,  165  U.  S.  58, 
98,  17  Sup.  Ct.  265,  41  L.  ed.  632; 
Leisey  v.  Hardin,  135  U.  S.  100,  119, 
10  Sup.  Ct.  681,  34  L.  ed.  128;  Leloup 
v.  Port  of  Mobile,  127  U.  S.  640,  648, 
32  L.  ed.  311,  8  Sup.  Ct.  1380;  Ratter- 
man  v.  Western  Union  Teleg.  Co.,  127 
U.  S.  411,  424,  32  L.  ed.  229,  8  Sup. 
Ct.  1127;  Bowman  v.  Chicago  &  N. 
W.  Ry.  Co.,  125  U.  S.  465,  483,  8  Sup. 
Ct.  689,  1062,  31  L.  ed.  700;  Phila- 
delphia &  Southern  Steamship  Co.  v. 
Pennsylvania,  122  U.  S.  326,  338, 
340,  345,  30  L.  ed.  1200,  7  Sup.  Ct. 

668 


1118;  Fargo  v.  Michigan,  121  U.  S. 
230,  238,  240,  7  Sup.  Ct.  857,  30  L.  ed. 
888;  Robbins  v.  Shelby  Co.  Taxing 
Dist.,  120  U.  S.  489,  492,  493,  497,  30 
L.  ed.  694,  7  Sup.  Ct.  592;  Wabash, 
St.  L.  &  P.  Ry.  Co.  v.  Illinois,  118 
U.  S.  557,  564,  30  L.  ed.  244,  7  Sup. 
Ct.  4;  Pickard  v.  Pullman  Southern 
Car  Co.,  117  U.  S.  34,  48,  6  Sup.  Ct. 
635,  29  L.  ed.  785;  Gloucester  Ferry 
Co.  v.  Pennsylvania,  114  U.  S.  196, 
212,  29  L.  ed.  158,  5  Sup.  Ct.  826; 
Telegraph  Co.  v.  Texas,  105  U.  S.  460, 
465,  26  L.  ed.  1067;  Cook  v.  Pennsyl- 
vania, 97  U.  S.  566,  572,  24  L.  ed. 
1015;  Railroad  Co.  v.  Husen,  95  U.  S. 
465,  470,  24  L.  ed.  527;  Welton  v. 
Missouri,  91  U.  S.  275,  282,  23  L.  ed. 
347;  Railroad  Co.  v.  Maryland,  21 
Wall.  (88  U.  S.)  456,  472,  22  L.  ed. 
678;  Osborne  v.  Mobile,  16  Wall.  (83 
U.  S.)  479,  481,  21  L.  ed.  470. 


RATES   AND    CHARGES  §    404 

entering,  passing  through,  or  departing  from  a  State,  and  a 
statute  imposing  such  tax  on  a  carrier  is  void  as  against  the 
constitutional  power  of  the  United  States  to  regulate  com- 
merce.94 In  a  Federal  Supreme  Court  case  it  is  held  that  the 
transportation  of  goods  on  a  through  bill  of  lading  from  Fort 
Smith,  Arkansas,  to  Grannis,  Arkansas,  over  a  railroad  by  way 
of  Spiro  in  the  Indian  Territory,  a  total  distance  of  one  hundred 
and  sixteen  miles,  of  which  fifty-two  miles  is  in  Arkansas  and 
sixty-four  in  the  Indian  Territory,  is  interstate  commerce,  and 
is  under  the  regulation  of  Congress,  free  from  interference  by 
the  State  of  Arkansas,  and  a  railway  company  operating  such 
a  line  can  maintain  an  action  for  equitable  relief  restraining 
the  state  railroad  commission  from  fixing  and  enforcing  rates 
between  points  within  the  State,  when  the  transportation 
is  partly  without  the  State  and  under  the  conditions  above 
stated.95  Merchandise  may,  however,  cease  to  be  interstate 
commerce  at  an  intermediate  point  between  the  place  of  ship- 
ment and  ultimate  destination;  and  if  kept  at  such  point  for 
the  use  and  profit  of  the  owners  and  under  the  protection  of 
the  laws  of  the  State  it  becomes  subject  to  the  taxing  and  po- 
lice power  of  the  State.  It  is  held,  therefore,  in  a  late  case  that 
the  statute  of  Tennessee  providing  for  the  inspection  of  oil  is 
not  an  unconstitutional  burden  on  interstate  commerce  as 
applied  to  oil  coming  from  other  States,  but  meanwhile  stored 
in  Tennessee  for  convenience  of  distribution  and  for  reshipping 
from  tank  cars  and  barreling.96     Again,   a  state  legislature 

94  Clarke  v.  Philadelphia  W.  &  B.  other  within  the  same  State  by  a 
B.  Co.,  4  Houst.  (Del.)  158.  Com-  route  partly  through  another  State, 
pare  People  v.  Brooks,  4  Denio  and  not  to  a  regulation  of  such  trans- 
(N.    Y.),    469;    People    v.    Commis-  portation. 

sioners,  48  Barb.  (N.  Y.)  157.  96  General   Oil  Co.    v.   Crane,    209 

95  Hanley  v.  Kansas  City  Southern  U.  S.  211.  In  this  case  the  court,  per 
Ry.  Co.,  187  U.  S.  617,  47  L.  ed.  333,  McKenna,  .7.,  says  {id.,  228) :  "  We  are 
23  Sup.  Ct.  214.  Lehigh  Valley  Rd.  brought,  then,  to  consider  whether 
Co.  v.  Pennsylvania,  145  U.  S.  192,  the  law  would,  if  administered  against 
12  Sup.  Ct.  806,  36  L.  ed.  672,  dis-  the  oils  in  controversy,  violate  any 
tinguished  as  applying  to  taxation  constitutional  right  of  plaintiff  in 
on  freight  received  on  merchandise  error.  As  determining  an  affirmative 
transported   from   one   point   to  an-  answer  to   this  question,   it  is  con- 

GG9 


§  404 


EEGULATION    AND    CONTROL   CONTINUED 


passed  in  1862  an  act  "in  relation  to  the  duties  of  railroad 
companies,"  enacting:  (1)  that  each  railroad  company  should 
annually,  in  a  month  named  by  the  act,  fix  its  rates  for  the 
transportation  of    passengers  and  freight  of    different  kinds; 


tended  that  the  oil  in  both  tanks  was 
in  transit  from  the  place  of  manu- 
facture, Pennsylvania,  to  the  place  of 
sale,  Arkansas.  The  delay  at  Mem- 
phis, it  is  urged,  was  merely  for  the 
purpose  of  separation,  distribution 
and  reshipment,  and  was  no  longer 
than  required  by  the  nature  of  the 
business  and  the  exigencies  of  trans- 
portation. The  difference  in  the  oil 
in  tank  No.  1  and  that  in  tank  No.  2, 
it  is  further  said,  is  that  the  former 
was  sold  before  shipment,  and  the 
latter  was  to  be  held  in  Tennessee  for 
sale,  but  in  neither  case  was  the  oil  to 
be  sold  in  Tennessee,  and  it  is  hence 
insisted  that  the  interstate  transit  of 
the  oil  was  never  finally  ended  in 
Memphis,  but  was  only  temporarily 
interrupted  there.  The  beginning 
and  the  ending  of  the  transit  which 
constitutes  interstate  commerce  are 
easy  to  mark.  The  first  is  defined  in 
Coe  v.  Errol,  116  U.  S.  517,  29  L.  ed. 
715,  6  Sup.  Ct.  475,  to  be  the  point  of 
time  that  an  article  is  committed  to 
a  carrier  for  transportation  to  the 
State  of  its  destination,  or  started  on 
its  ultimate  passage.  The  latter  is 
defined  to  be  in  Brown  v.  Houston, 
114  U.  S.  622,  29  L.  ed.  257,  5  Sup. 
Ct.  1091,  the  point  of  time  at  which 
it  arrives  at  its  destination.  But 
intermediate  between  these  points 
questions  may  arise.  State  v.  Engel, 
5  Vroom  (N.  J.),  435;  State  v.  Corri- 
gan,  10  Vroom  (N.  J.),  35;  The 
Daniel  Ball,  10  Wall.  (77  U.  S.)  557, 
19  L.  ed.  999.  In  Pittsburg  Coal 
Company  v.  Bates,  156  U.  S.  577,  15 
Sup.  Ct.  415,  39  L.  ed.  538,  coal  in 
barges  shipped  from  Pittsburg,  Penn- 

670 


sylvania,  to  Baton  Rouge,  Louisiana, 
was  stopped  about  nine  miles  above 
destination.  It  was  held  that  it  had 
ceased  to  be  interstate  commerce, 
and  was  subject  to  taxation  by  the 
State  of  Louisiana.  In  Diamond 
Match  Company  v.  Ontonagon,  188 
U.  S.  82,  47  L.  ed.  394,  23  Sup.  Ct. 
266,  logs  in  transit  to  a  point  without 
the  State  were  held  subject  to  taxa- 
tion under  a  statute  of  the  State 
where  they  would  '  naturally  leave 
the  State  in  the  ordinary  course  of 
transit.'  In  Kelley  v.  Rhoads,  188 
U.  S.  1,  47  L.  ed.  359,  23  Sup.  Ct.  259, 
a  flock  of  sheep  driven  from  a  point 
in  Utah  across  Wyoming  to  a  point 
in  Nebraska  for  the  purpose  of  ship- 
ment by  rail  from  the  latter  point 
was  held  to  be  property  engaged 
in  interstate  commerce  and  exempt 
from  taxation  by  Wyoming  under  the 
statute  taxing  all  live  stock  brought 
into  the  State  '  for  the  purpose  of  be- 
ing grazed.'  There  was  no  difficulty 
in  the  case  except  that  which  arose 
from  the  contention  that  the  manner 
of  transit  was  adopted  as  an  evasion 
of  the  statute.  Otherwise  the  grazing 
of  the  sheep  was  as  incidental  as  feed- 
ing them  would  be  if  transported  by 
rail.  The  pertinence  of  the  case  to 
the  present  controversy  is  in  its 
summary  of  the  principles  of  prior 
cases  expressed  in  the  following  pas- 
sage: 'The  substances  of  these  cases 
is  that,  while  property  is  at  rest  for 
an  indefinite  time  awaiting  trans- 
portation, or  awaiting  a  sale  at  its 
place  of  destination,  or  at  an  inter- 
mediate point,  it  is  subject  to  taxa- 
tion.    But  if  it  be  actually  in  transit 


RATES    AND    CHARGES 


§  404 


(2)  that  it  should,  on  the  first  day  of  the  next  month,  cause  a 
printed  copy  of  such  rates  to  be  put  at  all  its  stations  and 
depots,  and  cause  a  copy  to  remain  posted  during  the  year; 

(3)  that  a  failure  to  fulfill  these  requirements,  or  the  charging 


to  another  State,  it  becomes  the 
subject  of  interstate  commerce  and 
is  exempt  from  local  assessment.' 
Property,  therefore,  at  an  interme- 
diate point  between  the  place  of  ship- 
ment and  ultimate  destination  may 
cease  to  be  a  subject  of  interstate 
commerce.  Necessarily,  however, 
the  length  and  purpose  of  the  inter- 
ruption of  transit  must  be  considered. 
In  State  v.  Engle,  Receiver,  etc.,  5 
Vroom  (N.  J.),  425,  435,  coal  mined 
in  Pennsylvania  and  sent  by  rail  to 
Elizabethport,  in  New  Jersey,  where 
it  was  deposited  on  the  wharf  for 
separation  and  assortment  for  the 
purpose  of  being  shipped  by  water 
to  other  markets  for  the  purpose  of 
sale,  it  was  held  that  the  property 
was  not  subject  to  taxation  in 
New  Jersey.  The  court  said:  'Delay 
within  the  State,  which  is  no  longer 
than  is  necessary  for  the  convenience 
of  transshipment  for  its  transporta- 
tion to  its  destination,  will  not  make 
it  property  within  the  State  for  the 
purpose  of  taxation.'  See  also  in 
State  v.  Carrigan,  10  Vroom  (N.  J.), 
36,  where  coal  also  shipped  from 
Pennsylvania  to  a  port  in  New  Jersey 
and  remained  there  no  longer  than 
was  necessary  to  obtain  vessels  to 
transport  it  to  other  places  was  held 
to  be  in  course  of  transportation  and 
not  subject  to  the  taxing  power  of  the 
State.  In  Burlington  Lumber  Co.  v. 
WiUetts,  118  III.  559,  the  principle 
was  recognized  thai  property  in 
transitu  was  not  subject  to  the  taxing 
power  of  a  State,  but  it  was  held  thai 
logs  in  rafts  sent  from  Wisconsin  to 
Burlington,  Iowa,  by  the  Mississippi 


River,  a  part  of  which  were  stopped 
at  a  place  in  Illinois  called  Boston 
Harbor,  to  be  there  kept  until  needed 
at  Burlington  for  mill  purposes,  were 
subject  to  taxation.  The  court  said 
that  the  property  was  'kept  at  New 
Boston  on  account  of  the  profit  of  the 
owners  to  keep  it  there; '  and  further, 
that  the  company  was  engaged  in 
business  in  the  State  beneficial  to  it- 
self, and  its  property  was  so  located 
as  to  claim  the  protection  of  the  laws 
of  the  State  and  hence  was  liable  to 
taxation.  Like  comment  is  applica- 
ble to  plaintiff  in  error  and  its  oil. 
The  company  was  doing  business  in 
the  State,  and  its  property  was  re- 
ceiving the  protection  of  the  State. 
Its  oil  was  not  in  movement  through 
the  State.  It  had  reached  the  desti- 
nation of  its  first  shipment,  and  it 
was  held  there,  not  in  necessary  delay 
or  accommodation  to  the  means  of 
transportation,  as  in  State  v.  Engle, 
etc.,  supra,  but  for  the  business  pur- 
poses and  profit  of  the  company. 
It  was  only  there  for  distribution,  it 
is  said,  to  fulfill  orders  already  re- 
ceived. But  to  do  this  required  that 
t  lie  property  be  given  a  locality  in  the 
State  beyond  a  mere  halting  in  its 
transportation.  It  required  storage 
there — the  maintenance  of  the  means 
of  storage,  of  putting  it  in  and  taking 
it  from  storage.  The  bill  takes  pains 
to  allege  this.  'Complainant  shows 
that  it  is  impossible,  in  the  coal  oil 
business,  such  as  complainant  carries 
on,  to  fill  separately  each  of  these 
small  orders  directly  from  the  rail- 
road tank  cars,  because  of  the  great 
delay    and    expense   iii   the   way  of 

671 


§    404  REGULATION    AND    CONTROL    CONTINUED — 

of  a  higher  rate  than  was  posted,  should  subject  the  offending 
company  to  the  payment  of  certain  penalties  prescribed.  Con- 
gress afterwards  (in  1866),  by  an  act  whose  title  was  "An  act 
to  facilitate  commercial,  postal  and  military  communication 
between  the  several  States,"  and  which  recited  that  "the Con- 
stitution of  the  United  States  confers  upon  Congress  in  express 
terms,  the  power  to  regulate  commerce  among  the  several 
States,"  and  goes  on  " Therefore,  be  it  enacted,"  etc.,  enacted, 
"That  every  railroad  company  in  the  United  States,  whose 
road  is  operated  by  steam  *  *  *  be,  and  hereby  is,  au- 
thorized to  carry  upon  and  over  its  road,  boats,  bridges,  fer- 
ries, all  passengers,  troops,  government  supplies,  mails,  freights, 
and  other  property  on  their  way  from  any  State  to  another 
State,  and  to  receive  compensation  therefor."  And  enacted 
further,  "That  Congress  may,  at  any  time,  alter,  amend,  or 
repeal  this  act."  It  was  held,  in  the  case  of  a  railroad  running 
through  several  States,  including  that  where  the  state  enact- 
ment had  been  made,  that  the  state  enactment  was  but  a 
police  law,  and  therefore  constitutional.97 

freight  charges  incident   to   such   a  power  of  taxation.     It  may  be  that 

plan,  and  for  the  further  reason  that  such    power    is    more    limited    than 

an  extensive  plant  and  apparatus  is  the  power  to  enact  inspection  laws, 

necessary,  in  order  to  properly  and  Patapsco    Guano    Co.    v.    Board    of 

conveniently  unload  and  receive  the  Agriculture,   171  U.  S.  345,  356,   18 

oil  from  said  tank  cars,  and  it  would  Sup.  Ct.   862,   43   L.   ed.   191.     The 

be  impracticable,  if  not  impossible,  to  difference,  if  any  exists,  is  not  nec- 

have  such  apparatus  and  machinery  essary  to  observe.     The  cases  based 

at  every  point  to  which  complainant  on  the  taxing  power  show  the  conten- 

ships   said   oil.'     This   certainly   de-  tions  of  plaintiff  in  error  are  without 

scribes  a  business — describes  a  pur-  merit;  in  other  words,  show  that  its 

pose  for  which  the  oil  is  taken  from  oil   was   not   property   in   interstate 

transportation,  brought  to  rest  in  the  commerce.    As  our  conclusion  is  that 

State  and  for  which  the  protection  of  no  constitutional  right  of  the  oil  com- 

the  State  is  necessary,  a  purpose  out-  pany  was  violated  by  the  enforce- 

side  of  the  mere  transportation  of  the  ment  of  the  law  of  1899,  it  follows 

oil.    The  case,  therefore,  comes  under  that  no  error  prejudicial  to  the  com- 

the  principle  announced  in  American  pany  was  committed  by  the  Supreme 

Steel  &  Wire  Co.  v.  Speed,  192  TJ.  S.  Court  of  Tennessee,  and,  for  the  rea- 

500,  48  L.  ed.  538,  24  Sup.  Ct.  365.  sons  stated,  its  judgment  is  affirmed." 

We  have  considered  this  case  so  far  in  97  Railroad  Co.  v.  Fuller,  17  Wall, 

view  of  the  cases  which  involve  the  (84  U.  S.)  560,  21  L.  ed.  710. 

672 


RATES    AND    CHARGES  §§    405,  406 

§  405.  Regulation  of  Rates— Railroads— Non-user  of 
Legislative  Power— Lessee.— A  power  of  government  which 
actually  exists  is  not  lost  by  non-user.  The  fact,  therefore, 
that  the  power  of  regulating  the  maximum  rates  of  fare  and 
freight  was  not  exercised  for  more  than  twenty  years  after  the 
incorporation  of  a  company  is  unimportant.  Nor  does  it  affect 
the  case  that,  before  the  powTer  was  exercised,  such  company 
had  pledged  its  income  as  security  for  the  payment  of  debts 
incurred,  and  had  leased  its  road  to  a  tenant  that  relied  upon 
the  carriage  for  the  means  of  paying  the  stipulated  rent.  It 
could  neither  grant  nor  pledge  more  than  it  had,  and  its 
pledgee  or  tenant  took  the  property  subject  to  the  exercise  by 
the  State  of  the  same  powers  of  regulation  which  might  have 
been  exercised  over  the  company  itself.98 

§  406.  Regulation  of  Rates— Railroads— Reasonableness 
of  Rates — Confiscatory  Rates — Due  Process  of  Law — Equal 
Protection  of  Laws. — The  legislative  power  of  limitation  or 
regulation  of  rates  is  restricted.  "This  power  to  regulate  is 
not  a  power  to  destroy,  and  limitation  is  not  the  equiva- 
lent of  confiscation.  Under  pretense  of  regulating  fares 
and  rates,  the  State  cannot  require  a  railroad  corporation  to 
carry  persons  or  property  without  reward;  neither  can  it  do 
that  which  in  law  amounts  to  a  taking  of  private  property  for 
public  use  without  just  compensation  or  without  due  process 
of  law."  "  So  a  state  enactment,  or  regulations  made  under 
authority  of  a  state  enactment,  establishing  rates  for  the 
transportation  of  persons  or  property  by  railroad  that  will 
not  admit  of  the  carrier  earning  such  compensation,  as  under 
all  the  circumstances  is  just  to  it  and  to  the  public,  would  de- 
prive such  carrier  of  its  property  without  due  process  of  law, 
and  deny  to  it  the  equal  protection  of  the  laws,  and  would, 

•'Chicago,    Burlington    &    Quincy  116  U.  S.  307,  331,  29  L.  ed.  636,  6 

IM.  Co.  v.  Iowa,  94  U.  S.  155,  24  L.  Sup.  Ct.  334,  quoted  in  Reagan  v. 

ed.  94.  Farmers'  Loan  &Tru-t  Co.,  154  U.  S. 

"Railroad       Commission       Cases  362,  396,  38  L.  ed.  1014,  14  Sup.  Ct. 

(Stone  v    Farmers'  Loan  &  Tr.  Co.),  1047. 

43  673 


§  406     REGULATION  AND  CONTROL  CONTINUED — 

therefore,  be  repugnant  to  the  Fourteenth  Amendment.1 
Again,  "The  State  is  under  an  obligation  to  act  justly,  and 
without  arbitrary  discrimination,  between  corporations  of  the 
State,  just  as  it  is  between  citizens  of  the  State  enjoying  equal 
rights.  The  State  cannot  under  the  guise  of  a  regulation  bring 
about  a  destruction  and  a  confiscation  of  a  company's  prop- 
erty; and  the  State's  power  to  absolutely  abolish  a  corporation 
must  be  distinguished  from  its  power  to  destroy  its  business 
and  confiscate  its  property,  so  long  as  it  chooses  to  permit  its 
existence  and  to  authorize  its  business  by  a  valid  charter."  2 
So  the  grant  to  the  legislature  in  a  state  constitution  of  the  power 
to  establish  maximum  rates  for  the  transportation  of  passengers 
and  freight  on  railroads  in  the  State  has  reference  to  "rea- 
sonable" maximum  rates,  especially  where  the  words  strongly 
imply  that  it  was  not  intended  to  give  a  power  to  fix  maxi- 
mum rates  without  regard  to  their  reasonableness,  as  the  power 
granted  cannot  be  exerted  in  derogation  of  rights  secured  by 
the  Constitution  of  the  United  States,  and  of  the  right  to  be 
protected  by  the  judiciary,  when  its  jurisdiction  is  properly 
invoked.3  But  while  the  enforcement  by  a  State  of  a  general 
scheme  of  maximum  rates  so  unreasonably  low  as  to  be  unjust 
and  unreasonable  may  be  confiscation  and  amount  to  taking 
property  without  due  process  of  law,  still  the  State  has  power 
to  compel  a  railroad  company  to  perform  a  particular  and 


1  Smyth  v.  Ames,  169  U.  S.  466,  Ct.  462,  702;  Ball  v.  Rutland  R.  Co. 
42  L.  ed.  819,  18  Sup.  Ct.  418.  See  (C.  C),  93  Fed.  513;  Chicago,  Mil- 
Stanislaus  County  v.  San  Joaquin  &  waukee  &  St.  P.  R.  Co.  v.  Tompkins 
King's  River  Canal  &  Irrig.  Co.,  192  (C.  C),  90  Fed.  363,  12  Am.  &  Eng. 
U.  S.  201,  213,  48  L.  ed.  406,  24  Sup.  R.  Cas.  (N.  S.)  70,  176  U.  S.  167,  20 
Ct.  241,  per  Peckham,  J.,  case  re-  Sup.  Ct.  336,  44  L.  ed.  417;  Metro- 
verses  113  Fed.  930;  San  Diego  Land  politan  Trust  Co.  v.  Houston  &  T.  C. 
&  Town  Co.  v.  National  City,  174  R.  Co.  (C.  C),  90  Fed.  683,  13  Am. 
U.  S.  739,  753,  764,  43  L.  ed.  1154,  19  &  Eng.  R.  Cas.  (N.  S.)  149. 
Sup.  Ct.  804,  per  Harlan,  J.;  Reagan  2  New  Memphis  Gas  Light  Co.  v. 
v.  Farmers'  Loan  &  Trust  Co.,  154  City  of  Memphis,  72  Fed.  952,  955. 
U.  5.  362,  399,  412,  14  Sup.  Ct.  1047,  See  cases  cited  under  last  preceding 
38  L.  ed.   1014;  Chicago,  Milwaukee  note  herein. 

&  St.  Paul  R.  Co.  v.  Minnesota,  134  3  Smyth  v.  Ames,  169  U.  S.  466,  18 

U.  S.  418,  458,  33  L.  ed.  970,  10  Sup.  Sup.  Ct.  418,  42  L.  ed.  819. 

674 


RATES    AND    CHARGES  §    407 

specified  duty  necessary  for  the  convenience  of  the  public  even 
though  it  may  entail  some  pecuniary  loss.4 

§  407.  Railroads — Unreasonable  Rate  Regulations — Judi- 
cial Inquiry — Due  Process  of  Law — Equal  Protection  of  the 
Laws. — While  rates  for  the  transportation  of  persons  and 
property  within  the  limits  of  a  State  are  primarily  for  its  de- 
termination, the  question  whether  they  are  so  unreasonably 
low  as  to  deprive  the  carrier  of  its  property  without  such  com- 
pensation as  the  constitution  secures,  and,  therefore,  without 
due  process  of  law,  cannot  be  so  conclusively  determined  by 
the  legislature  of  the  State  or  by  regulations  adopted  under 
its  authority,  that  the  matter  may  not  become  a  subject  of 
judicial  inquiry.  The  idea  that  any  legislature,  state  or  Fed- 
eral, can  conclusively  determine  for  the  people  and  for  the 
courts  that  what  it  enacts  in  the  form  of  law,  or  what  it  au- 
thorizes its  agents  to  do,  is  consistent  with  the  fundamental 
law,  is  in  opposition  to  the  theory  of  our  institutions;  as  the 
duty  rests  upon  all  courts,  Federal  and  state,  when  their 
jurisdiction  is  properly  invoked,  to  see  to  it  that  no  right  se- 
cured by  the  supreme  law  of  the  land  is  impaired  or  destroyed 
by  legislation".5  And  when  a  state  legislature  establishes  a 
tariff  of  railroad  rates  so  unreasonable  as  to  practically  destroy 
the  value  of  property  of  companies  engaged  in  the  carrying 
business,  courts  of  the  United  States  may  treat  it  as  a  judicial 
question,  and  hold  such  legislation  to  be  in  conflict  with  the 
Federal  Constitution,  as  depriving  the  company  of  its  prop- 
erty without  due  process  of  law,  and  as  depriving  it  of  the  equal 
protection  of  the  laws.'1    So  it  is  within  the  power  of  a  court  of 

1  Atlantic   Coast   Line   Ry.   Co.   v.  156  U.  S.  649,   15  Sup.  Ct.  484,  39 

North     Carolina    Corporation    Com-  L.  ed.  567. 

n  i  sion,  206  U.  S.  1,  51  L.  ed.  933,  "The  question  of  the  reasonable- 
27     Sup.     Ct.     5X5;     distinguishing  ness  of  a  rate  of  charge  for  trans- 
Mi   v.  Ames,   169  U.  S.  526,  42  portation  by  a  railroad  company,  in- 
ed.  — ,   is  Sup.  Ct.  — .  volving   as    it    docs    the   element   of 

s  Smyth  v.  Ames,   169  U.  S.  466,  reasonableness  both  as  regards  the 

42  L.  ed.  S19,  1^  Sup.  Ct.  4  is.  company  and  as  regards  the  public, 

6  St.  Louis  &  S.  !•'.  Ry.  Co.  v.  Gill,  is  eminently  a  question  for  judicial 

675 


§407 


REGULATION  AND  CONTROL  CONTINUED — 


equity  to  decree  that  rates  established  by  a  railroad  commis- 
sion are  unreasonable  and  unjust,  and  to  restrain  their  enforce- 
ment; but  it  is  not  within  its  power  to  establish  rates  itself,  or 
to  restrain  the  commission  from  again  establishing  rates.7 


investigation,  requiring  due  process 
of  law  for  its  determination.  If  the 
company  is  deprived  of  the  power  of 
charging  reasonable  rates  for  the  use 
of  its  property,  and  such  deprivation 
takes  place  in  the  absence  of  an  in- 
vestigation by  judicial  machinery,  it 
is  deprived  of  the  lawful  use  of  its 
property,  and  thus,  in  substance  and 
effect,  of  the  property  itself,  without 
due  process  of  law  and  in  violation  of 
the  Constitution  of  the  United  States; 
and  in  so  far  as  it  is  thus  deprived, 
while  other  persons  are  permitted  to 
receive  reasonable  profits  upon  their 
invested  capital,  the  company  is  de- 
prived of  the  equal  protection  of  the 
laws."  Chicago,  Milwaukee  &  St. 
Paul  Ry.  Co.  v.  Minnesota,  134  U.  S. 
418,  458,  33  L.  ed.  970,  10  Sup.  Ct. 
462,  702,  per  Blatchford,  J. 

"In  the  case  of  State  v.  Railroad 
Commissioners,  23  Neb.  117,  36  N. 
W.  305,  and  Id.,  38  Minn.  281,  37  N. 
W.  782,  the  Supreme  Court  of  Minne- 
sota held  that  the  rates  fixed  by  the 
state  commission  could  not  be  in- 
quired into  by  the  courts.  But  on 
writs  of  error  the  Supreme  Court  of 
the  United  States  reversed  the  de- 
cision of  the  Minnesota  court.  Chi- 
cago, M.  &  St.  P.  R.  Co.  v.  Minnesota, 
134  U.  S.  418,  10  Sup.  Ct.  462,  33  L. 
ed.  970,  and  Minneapolis  E.  R.  Co.  v. 
Minnesota,  134  U.  S.  475,  10  Sup. 
Ct.  473,  33  L.  ed.  985.  From  that 
time  until  the  present,  all  the  courts 
and  the  profession  have  understood 
that  the  legislature,  acting  directly 
by  statute  or  through  a  commission 
duly  authorized,  can  fix  maximum 
freight  and  passenger  rates,  subject 

676 


to  the  right  and  power  of  the  court 
by  appropriate  judicial  proceedings 
to  declare  such  statutes  or  orders 
void,  if  such  rates  are  either  con- 
fiscatory or  unremunerative,  for  the 
reason  that  such  proceedings  are  not 
due  process  of  law,  and  are  the  tak- 
ing of  property  without  compensa- 
tion, and  therefore  in  violation  of  the 
United  States  Constitution."  Poor 
v.  Iowa  Central  Ry.  Co.  (C.  C),  155 
Fed.  226,  227,  per  McPherson,  Dist. 
J. 

7  Reagan  v.  Farmers'  Loan  &  Trust 
Co.,  154  U.  S.  362,  38  L.  ed.  1014,  14 
Sup.  Ct.  1047.  The  court  said  in 
this  case: 

"It  appears  from  the  bill  that  in 
pursuance  of  the  powers  given  to  it  by 
this  act,  the  state  commission  has 
made  a  body  of  rates  for  fares  and 
freights.  This  body,  of  rates  as  a 
whole  is  challenged  by  the  plaintiff  as 
unreasonable,  unjust  and  working  a 
destruction  of  its  rights  of  property. 
The  defendant  denies  the  power  of 
the  court  to  entertain  an  inquiry  into 
that  matter,  insisting  that  the  fixing 
of  rates  for  carriage  by  public  carrier 
is  a  matter  wholly  within  the  power 
of  the  legislative  department  of  the 
government  and  beyond  examination 
by  the  courts.  It  is  doubtless  true  as 
a  general  proposition  that  the  forma- 
tion of  a  tariff  of  charges  for  the 
transportation  by  a  common  carrier 
of  persons  or  property  is  a  legislative 
or  administrative  rather  than  a  ju- 
dicial function.  Yet  it  has  always 
been  recognized  that  if  a  carrier  at- 
tempted to  charge  a  shipper  an  un- 
reasonable sum,  the  courts  had  juris- 


RATES    AND    CHARGES 


40S 


§  408.  Railroad — Rates  Fixed  by  Legislative  Action  Pre- 
sumed Reasonable — Railroad  Commission — Due  Process  of 
Law. — The  presumption  is  that  the  rates  fixed  by  a  railroad 
commission  are  reasonable,  and  the  burden  of  proof  is  upon 


diction  to  inquire  into  the  matter 
and  to  award  to  the  shipper  any 
amount  exacted  from  him  in  excess 
of  a  reasonable  rate;  and  also  in  a  re- 
verse case  to  render  judgment  in 
favor  of  the  carrier  for  the  amount 
found  to  be  a  reasonable  charge. 
The  province  of  the  courts  is  not 
changed  nor  the  limits  of  judicial  in- 
quiry altered  because  the  legislature, 
instead  of  the  carrier,  prescribes  the 
rates.  The  courts  are  not  authorized 
to  revise  or  change  the  body  of  rates 
imposed  by  legislature  or  a  commis- 
sion; they  do  not  determine  whether 
one  rate  is  preferable  to  another  or 
what  under  all  circumstances  would 
be  fair  and  reasonable  as  between  the 
carriers  and  the  shippers;  they  do  not 
engage  in  any  mere  administrative 
work;  but  still  there  can  be  no  doubt 
of  their  power  and  duty  to  inquire 
whether  a  body  of  rates  prescribed 
by  legislature  or  a  commission  is  un- 
just and  unreasonable  and  such  as  to 
work  a  practical  destruction  to  rights 
of  property  and,  if  found  so  to  be,  to 
restrain  its  operation.  *  *  *  The 
question  of  the  reasonableness  of  a 
rate  of  charge  for  transportation  by  a 
railroad  company  involving  as  it 
does  the  clement  of  reasonableness 
both  as  regards  the  company  and  as 
regards  the  public,  is  eminently  a 
question  for  judicial  investigation  re- 
quiring the  process  of  law  for  its 
determination.  *  *  *  These 
cases  all  support  the  proposition 
that,  while  it  is  not  the  province  of 
the  courts  to  enter  upon  the  merely 
administrative  duty  of  framing  a 
tariff  of  rates  for  carriage,  it  is  within 


the  scope  of  judicial  power  and  a 
part  of  judicial  duty  to  restrain  any- 
thing which  in  the  form  of  a  regula- 
tion of  rates  operates  to  deny  to  the 
owners  of  property  invested  in  the 
business  of  transportation  that  equal 
protection  which  is  the  constitu- 
tional right  of  all  owners  of.  other 
property.  There  is  nothing  new  or 
strange  in  this.  It  has  always  been  a 
part  of  the  judicial  function  to  de- 
termine whether  the  act  of  one  party 
(whether  that  party  be  a  single  in- 
dividual, an  organized  body  or  the 
public  as  a  whole)  operates  to  divest 
the  other  party  of  any  rights  of  per- 
son or  property.  In  every  constitu- 
tion is  the  guarantee  against  the 
taking  of  private  property  for  public 
purposes  without  just  compensation. 
The  equal  protection  of  the  laws, 
which,  by  the  Fourteenth  Amend- 
ment, no  State  can  deny  to  the  in- 
dividual, forbids  legislation,  in  what- 
ever form  it  may  be  enacted,  by 
which  the  property  of  one  individual, 
without  compensation,  wrested  from 
him  for  the  benefit  of  another  or  of 
the  public.  This,  as  has  been  often 
observed,  is  a  government  of  law  and 
not  a  government  of  men,  and  it 
must  never  be  forgotten  that  under 
such  a  government,  with  its  con- 
stitutional limitations  and  guaran- 
tees, the  forms  of  law  and  the  ma- 
chinery of  government  with  all  their 
reach  and  power  must  in  their  actual 
workings  stop  on  the  hither  side  of 
the  unnecessary  and  uncompensated 
taking  or  destruction  of  any  private 
property  legally  acquired  and  legally 
held.      It    was   therefore   within   the 

677 


§  408     REGULATION  AND  CONTROL  CONTINUED — 

the  railroad  company  to  show  the  contrary.8  It  will  also  be 
presumed  that  such  a  commission  acts,  in  fixing  an  intrastate 
railroad  rate,  with  full  knowledge  of  the  situation,  and  where 
the  record  does  not  disclose  all  the  evidence,  a  rate  sustained 
by  the  highest  court  of  the  State  will  not  be  held  by  the  Fed- 
eral Supreme  Court  to  be  confiscatory  and  to  deprive  a  rail- 
road company  of  its  property  without  due  process  of  law, 
where  it  appears  by  the  report  of  the  company  that  the  rate 
exceeds  the  average  rate  received  by  the  company  during  the 
previous  year.  And  where  the  record  does  not  disclose  why 
an  order  of  a  state  railroad  commission  was  made  applicable 
only  to  certain  local  and  intrastate  rates,  but  the  state  law 
provides  that  rates  so  fixed  are  to  be  considered  in  all  courts 
as  prima  facie  just  and  reasonable,  and  the  effect  of  the  order 
was  to  equalize  rates,  the  Federal  Supreme  Court  will  not  hold 
that  the  judgment  of  the  highest  court  of  the  State,  sustaining 
the  rate,  was  erroneous.  A  State  may  insist  upon  equality  of 
intrastate  railroad  rates,  the  conditions  being  the  same,  with- 
out depriving  the  railroad  company  of  its  property  without 
due  process  of  law.9  If  a  state  law  provides  that  rates  estab- 
lished by  a  railroad  commission  are  to  be  taken  in  all  courts 
as  prima  facie  just  and  reasonable,  and  there  is  nothing  in  the 
record  from  which  a  reasonable  deduction  can  be  made  as  to 
the  cost  of  transportation,  or  the  amount  transported,  of  the 
single  article  in  regard  to  which  an  intrastate  rate  has  been 

competency  of  the  Circuit  Court  of  Minnesota,  186  U.  S.  257,  22  Sup. 
the  United  States  for  the  western  Ct.  900,  46  L.  ed.  1151. 
district  of  Texas,  at  the  instance  of  "It  has  been  decided  that  such 
the  plaintiff,  a  citizen  of  another  rates  thus  fixed  are  presumably- 
State,  to  enter  upon  an  inquiry  as  to  fair  and  remunerative,  and  therefore 
the  reasonableness  and  justice  of  the  valid,  and  that  the  company,  stock- 
rates  prescribed  by  the  railroad  com-  holder,  bondholder,  or  mortgagee 
mission.  Indeed,  it  was  in  so  doing  challenging  such  rates  has  the  burden 
only  exercising  a  power  expressly  of  proof."  Poor  v.  Iowa  Central  Ry. 
named  in  the  act  creating  the  com-  Co.  (C.  C),  155  Fed.  226,  227,  per 
mission."  Reagan  v.  Farmers'  Loan  McPherson,  Dist.  J. 
&  Trust  Co.,  154  U.  S.  362,  396,  398,  9  Seaboard  Air  Line  Ry.  Co.  v. 
399,  38  L.  ed.  1014,  14  Sup.  Ct.  Florida,  203  U.  S.  261,  27  Sup.  Ct. 
1047.  109,  51  L.  ed.  175,  aff'g  48  Fla.  129, 
8  Minneapolis  &  St.  L.  R.  Co.  v.  150. 

678 


RATES    AXD    CHARGES  §    409 

established  and  complained  of,  or  how  that  rate  will  affect  the 
income  of  the  railroad  company,  the  Federal  Supreme  Court 
will  not  disturb  the  finding  of  the  highest  court  of  the  State 
that  the  rate  was  reasonable,  and  hold  that  it  amounted  to  a 
deprivation  of  property  without  due  process  of  law.10  Where 
a  state  statute,11  establishing  a  railroad  and  warehouse  com- 
mission, has  been  interpreted  by  the  Supreme  Court  of  such 
State  as  providing  that  the  rates  of  charges  for  transportation 
of  property,  recommended  and  published  by  the  commission, 
shall  be  final  and  conclusive  as  to  what  are  equal  and  reason- 
able charges,  and  that  there  can  be  no  judicial  inquiry  as  to 
the  reasonableness  of  such  rates,  and  a  railroad  company,  in 
answer  to  an  application  for  a  mandamus,  contended  that 
such  rates,  in  regard  to  it,  were  unreasonable,  and  it  was  not 
allowed  by  the  state  court  to  put  in  testimony  on  the  question 
of  the  reasonableness  of  such  rates,  it  was  held,  that  the  act 
was  in  conflict  with  the  Constitution  of  the  United  States, 
as  depriving  the  company  of  its  property  without  due  process 
of  law,  and  as  depriving  it  of  the  equal  protection  of  the  laws.12 

§  409.  Railroads — Test  of  Reasonableness  of  Rates  Pre- 
scribed by  State — Practice —Findings. — Necessarily  it  is  a 
difficult  and  perplexing  question  to  determine  whether  or  not 
a  rate  fixed  by  legislative  authority  for  the  transportation  of 
passengers  and  freight  is  unreasonable.  No  rule  can  be  stated, 
as  the  facts  must  vary  in  the  different  cases  wherein  this  issue 
is  raised.  In  a  much  cited  and  relied  upon  case  the  following 
rules  have  been  stated:  1.  A  railroad  company  may  not  fix 
its  rates  with  a  view  solely  to  its  own  interests  and  ignore  the 
rights  of  the  public;  but  the  rights  of  the  public  would  be  ig- 
nored if  rates  for  the  transportation  of  persons  or  property  on 
a  railroad  were  exacted  without  reference  to  the  fair  value  of 

10  Atlantic  Coast  Line  Rd.  Co.  v.  12  Chicago,  Milwaukee  &  St.  Paul 
Florida,  203  U.  S.  256,  51  L.  ed.  171,  Ry.  Co.  v.  Minnesota,  134  U.  S.  418, 
27  Sup.  Ct.  108,  aff'g  is  I  h.  146.  33  L.  ed.  970,  10  Sup.  Ct.  462,  702. 

11  Minn.  Act  March  7,   1887,  Gen.  See  note  to  §  407,  herein. 
Laws,  1887,  C.  10. 

679 


§   409  REGULATION    AND   CONTROL  CONTINUED— 

the  property  used  for  the  public  or  of  the  services  rendered, 
and  in  order  simply  that  the  corporation  may  meet  operat- 
ing expenses,  pay  the  interest  on  its  obligations  and  declare  a 
dividend  to  stockholders.  If  a  railroad  company  has  bonded 
its  property  for  an  amount  that  exceeds  its  fair  value,  or  if  its 
capitalization  is  largely  fictitious,13  it  may  not  impose  upon 
the  public  the  burden  of  such  increased  rates  as  may  be  re- 
quired for  the  purpose  of  realizing  profits  upon  such  excessive 
valuation  or  fictitious  capitalization;  and  the  apparent  value 
of  the  property  and  franchises  used  by  the  corporation  as 
represented  by  its  stock,  bonds  and  obligations  is  not  alone 
to  be  considered  when  determining  the  rates  that  may  be 
reasonably  charged.  2.  The  reasonableness  or  unreasonable- 
ness of  rates  prescribed  by  a  State  for  the  transportation  of 
persons  or  property  wholly  within  its  limits  must  be  de- 
termined without  reference  to  the  interstate  business  done 
by  the  carrier,  or  to  the  profits  derived  from  that  business. 
The  State  cannot  justify  unreasonably  low  rates  for  domestic 
transportation,  considered  alone,  upon  the  ground  that  the 
carrier  is  earning  large  profits  on  its  interstate  business,  over 
which,  so  far  as  rates  are  concerned,  the  State  has  no  control; 
nor  can  the  carrier  justify  unreasonably  high  rates  on  domestic 
business  upon  the  ground  that  it  will  be  able  only  in  that  way 
to  meet  losses  on  its  interstate  business.  3.  The  basis  of  all 
calculations  as  to  the  reasonableness  of  rates  to  be  charged  by 
a  corporation  maintaining  a  highway  under  legislative  sanction 
must  be  the  fair  value  of  the  property  being  used  by  it  for  the 
convenience  of  the  public;  and  in  order  to  ascertain  that  value, 
the  original  cost  of  construction,  the  amount  expended  in 
permanent  improvements,  the  amount  and  market  value  of  its 
bonds  and  stock,  the  present  value  as  compared  with  the  orig- 
inal cost  of  construction,  the  probable  earning  capacity  of 
the  property  under  particular  rates  prescribed  by  statute,  and 
the  sum  required  to  meet  operating  expenses,  are  all  matters 

13  Compare  as  to  overcapitaliza-  York  (C.  C),  157  Fed.  849,  consid- 
tion  or  fictitious  capitalization,  Con-  ered  under  §  392,  herein  (point  3  in 
solidated    Gas   Co.    v.    City   of   New    case). 

680 


RATES    AXD    CHARGES  §    409 

for  consideration,  and  are  to  be  given  such  weight  as  may  be 
just  and  right  in  each  case.  What  the  company  is  entitled  to 
ask  is  a  fair  return  upon  the  value  of  that  which  it  employs  for 
the  public  convenience ;  and,  on  the  other  hand,  what  the  pub- 
lic is  entitled  to  demand  is  that  no  more  be  exacted  from  it 
for  the  use  of  a  public  highway  than  the  services  rendered  by 
it  are  reasonably  worth.14  In  another  case  it  is  held  that  a 
state  statute,  fixing  at  three  cents  a  mile  the  maximum  fare 
that  any  railroad  corporation  may  take  for  carrying  a  pas- 
senger within  the  State,  is  not,  as  applied  to  a  corporation  re- 
organized by  the  purchasers  at  the  sale  of  a  railroad  under  a 
decree  of  foreclosure,  shown  to  be  a  taking  of  property  without 
due  process  of  law,  in  contravention  of  the  Fourteenth  Amend- 
ment, by  evidence  that  under  that  restriction,  and  with  its 
existing  traffic,  its  net  yearly  income  will  pay  less  than  one 
and  a  half  per  cent  on  the  original  cost  of  the  road,  and  only  a 
little  more  than  two  per  cent  on  the  amount  of  the  bonded 
debt,  without  any  proof  of  the  cost  of  the  bonded  debt,  or  the 
amount  of  the  capital  stock  of  the  reorganized  corporation,  or 
the  price  paid  by  the  corporation  for  the  road;  and  it  was  also 
decided  that  a  statute,  classifying  the  railroad  corporations  in 
the  State  by  the  length  of  their  lines,  and  fixing  a  different 
limit  of  the  rate  of  passenger  fares  in  each  class,  does  not  deny 
to  any  corporation  the  equal  protection  of  the  laws.15  Again, 
a  tariff  fixed  by  a  commission  for  coal  in  carload  lots  is  not 
proved  to  be  unreasonable,  by  showing  that  if  such  tariff  were 

14  Smyth  v.  Ames,  169  U.  S.  819,  1014;  New  Memphis  Gas  Light  Co.  v. 

18  Sup.  Ct.  418.    Examine  Stanislaus  City  of  Memphis,  72  Fed.  952,  955. 

County  v.  San  Joaquin  Canal  &  Irrig.  See,  upon  point  2  in  the  above  text, 

Co.,  192  U.  S.  201,  213,  48  L.  cd.  406,  Seaboard  Air  Line  Ry.  Co.  v.  Rail- 

24  Sup.  Ct.  241,  per  Peckham,  J.;  San  road  Commissioners  of  Ala.,  155  Fed. 

Diego  Land  &  Town  Co.  v.  National  192. 

City,  174  U.  S.  739,  754,  757,  43  L.  ed.  Method    of   valuation— Rates— Gas 

1  L54,  19  Sup.  Ct.  804,  per  Harlan,  J.;  companies.     See  §  392,  herein. 

Covington   &   Lex.  Turnpike  Co.   v.  Rates  fixed  by    company — Reason- 

Sandford,  164  U.  S.  578,  596,  597,  17  ableness    of— Basis    of    computation. 

Sup.  Ct.  198,  41  L.  ed.  560;  Reagan  v.  See  §§  412,  413,  herein. 

Farmers'  Loan  &  Trust  Co.,  154  U.  S.  15  Dow  v.  Beidelman,  125  U.  S.  680, 

362,  412,  14  Sup.  Ct.  1047,  38  L.  ed.  8  Sup.  Ct.  1028,  31  L.  ed.  841. 

681 


§  409     REGULATION  AND  CONTROL  CONTINUED — 

applied  to  all  freight  the  road  would  not  pay  its  operating 
expenses,  since  it  might  well  be  that  the  existing  rates  upon 
other  merchandise,  which  were  not  disturbed  by  the  commis- 
sion, might  be  sufficient  to  earn  a  large  profit  to  the  company, 
though  it  might  earn  little  or  nothing  upon  coal  in  carload 
lots.16  In  still  another  case  the  facts  were  as  follows:  The 
State  of  South  Dakota  having  passed  an  act  providing  for  the 
appointment  of  a  board  of  railroad  commissioners,  and  au- 
thorizing that  board  to  make  a  schedule  of  reasonable  maxi- 
mum fares  and  charges  for  the  transportation  of  passengers, 
freight  and  cars  on  the  railroads  within  the  State,  provided 
that  the  maximum  charge  for  the  carriage  of  passengers  on 
roads  of  the  standard  gauge  should  not  be  greater  than  three 
cents  per  mile ;  and  that  board  having  acted  in  accordance  with 
the  statute,  and  having  published  its  schedule  of  maximum 
charges,  the  Chicago,  St.  Paul  and  Milwaukee  Railway  com- 
pany filed  the  bill  in  this  case  in  the  Circuit  Court  of  the 
United  States  for  the  District  of  South  Dakota,  seeking  to  re- 
strain the  enforcement  of  the  schedule.  The  railroad  com- 
missioners answered  fully,  and  testimony  was  taken  before 
an  examiner  upon  the  issues  made  by  the  pleadings.  This 
testimony  was  reported  without  findings  of  fact  or  conclusions 
of  law.  The  case  went  to  hearing,  the  judge,  without  the  aid 
of  a  master,  examined  the  pleadings  and  the  mass  of  proof. 
He  made  findings  of  fact  and  conclusions  of  law;  delivered  an 
opinion;  and  rendered  a  decree  dismissing  the  bill.  The  Fed- 
eral Supreme  Court  was  of  opinion  that  neither  the  findings 
made  by  the  court,  nor  such  facts  as  were  stated  in  its  opinion, 
were  sufficient  to  warrant  a  conclusion  upon  the  question 
whether  the  rates  prescribed  by  the  defendants  were  unrea- 
sonable or  not,  and  that  the  process  by  which  the  court  came 
to  its  conclusion  was  not  one  which  could  be  relied  upon; 
that  there  was  error  in  the  failure  to  find  the  cost  of  doing  the 
local  business,  and  that  only  by  a  comparison  between  the 
gross  receipts  and  the  cost  of  doing  the  business,  ascertaining 

16  Minneapolis  &  St.  L.  R.  Co.  v.    Minnesota,  186  U.  S.  257,  22  Sup.  Ct. 

900,  46  L.  ed. 1151. 

682 


KATES    AND    CHARGES  §§    410,  411 

thus  the  net  earnings,  could  the  true  effect  of  the  reduction 
of  rates  be  determined;  that  the  better  practice  would  be  to 
refer  the  testimony,  when  taken,  to  the  most  competent  and 
reliable  master,  general  or  special,  that  could  be  found,  to  make 
all  needed  computations,  and  find  fully  the  facts;  so  that  the 
Federal  Supreme  Court,  if  it  should  be  called  upon  to  examine 
the  testimony,  might  have  the  benefit  of  the  services  of  such 
master.17 

§  410.  Regulation  of  Rates — Railroad  in  Two  or  More 
States — Continuous  Line — Consolidation — Test  of  Reason- 
ableness of  Rate — Penalties — Defense. — A  railroad  forming 
a  continuous  line  in  two  or  more  States,  and  owned  and  man- 
aged by  a  corporation  whose  corporate  powers  are  derived 
from  the  legislature  of  each  State  in  which  the  road  is  situated, 
is,  as  to  domestic  traffic  in  each  State,  a  corporation  of  that 
State,  subject  to  state  laws  not  in  conflict  with  the  Constitu- 
tion of  the  United  States.18  And  when,  by  legislation  and  con- 
solidation, a  railroad  which  was  originally  all  in  one  State 
becomes  consolidated  with  other  roads  in  other  States,  and  the 
State  originally  incorporating  it  enacts  laws  to  regulate  the 
rates  of  the  consolidated  road  within  its  borders,  the  proper 
test  as  to  the  reasonableness  of  these  rates  is  as  to  their  effect 
upon  the  consolidated  line  as  a  whole.  And  when  a  State  pre- 
scribes rates  for  a  railroad  only  a  part  of  which  is  within  its 
borders,  the  company  may  raise  the  question  of  their  rea- 
sonableness by  way  of  defense  to  an  action  for  the  recovery 
of  penalties  for  violating  the  directions.19 

§  411.  Railroad— Arbitrary  Regulation  of  Rates — Mileage 
Tickets — Discrimination — Due  Process  of  Law  Equal  Pro- 
tection of  the  Laws. — While  a  State  may  make  reasonable  reg- 
ulations for  the  government  of  public  service  corporations,  and 

"Chicago,  Milwaukee  &  St.  Paul  116  U.  S.  307,  29  L.  ed.  636,  6  Sup. 

Ry.  Co.  v.  Tompkins,  170  U.  S.  167,  Ct.  :v.\\. 

20  Sup.  Ct.  3.-56,  44  L.  ed.  417  "  St.  Louis  &  S.  F.  Ry.  Co.  v.  Gill, 

"Railroad       Commission       Cases  156  U.  S.  649,   15  Sup.  Ct,  484,  39 

(Stone  v.  Farmers'  Loan  &  Tr.  Co.),  L.  ed.  567. 

683 


§   411  REGULATION    AND   CONTROL  CONTINUED — 

to  that  end  may  fix  a  reasonable  maximum  rate  for  the  trans- 
portation of  passengers,  it  cannot  arbitrarily  fix  a  maximum 
passenger  rate  of  two  cents  a  mile  on  mileage  books  of  five 
hundred  miles  or  over  and  require  the  carrier  always  to  keep 
the  same  on  sale  to  all  who  apply  therefor,  and  to  redeem  them 
at  a  later  period  than  they  have  theretofore  redeemed  mileage 
books.  Such  legislation  is  class  legislation,  and  it  is  not  for 
the  protection  of  all  the  people,  but  of  the  favored  few.  It 
discriminates  in  favor  of  the  wholesale  buyer,  and  also  in- 
vades the  right  of  the  carrier  to  conduct  and  manage  its  own 
affairs.  It  denies  to  the  carrier  the  equal  protection  of  the  laws, 
and  deprives  him  of  his  property  without  due  process  of  law, 
and  is,  therefore,  unconstitutional.20  So  the  provision  in  the 
act  of  the  legislature  of  Michigan,21  amending  the  general  rail- 
road law,  that  one  thousand  mile  tickets  shall  be  kept  for  sale 
at  the  principal  ticket  offices  of  all  railroad  companies  in  that 
State  or  carrying  on  business  partly  within  and  partly  without 
the  limits  of  the  State,  at  a  price  not  exceeding  twenty  dollars 
in  the  Lower  Peninsula  and  twenty-five  dollars  in  the  Upper 
Peninsula;  that  such  one  thousand  mile  tickets  may  be  made 
non-transferable,  but  whenever  required  by  the  purchaser  they 
shall  be  issued  in  the  names  of  the  purchaser,  his  wife  and  chil- 
dren, designating  the  name  of  each  on  such  tickets,  and  in  case 
such  ticket  is  presented  by  any  other  than  the  person  or  persons 
named  thereon,  the  conductor  may  take  it  up  and  collect  fare, 
and  thereupon  such  one  thousand  mile  ticket  shall  be  forfeited 
to  the  railroad  company;  that  each  one  thousand  mile  ticket 
shall  be  valid  for  two  years  only  after  date  of  purchase,  and 
in  case  it  is  not  wholly  used  within  the  time,  the  company  is- 
suing the  same  shall  redeem  the  unused  portion  thereof,  if 
presented  by  the  purchaser  for  redemption  within  thirty  days 
after  the  expiration  of  such  time,  and  shall  on  such  redemption 
be  entitled  to  charge  three  cents  per  mile  for  the  portion  thereof 
used,  is  a  violation  of  that  part  of  the  Constitution  of  the  Uni- 

20  Commonwealth  v.  Atlantic  Coast        "  Act  1891,  No.  90. 
Line  Ry.  Co.,  106  Va.  61,  55  S.  E. 
572,  7  L.  R.  A.  (N.  S.)  1086. 

684 


RATES   AND   CHARGES  §   412 

ted  States  which  forbids  the  taking  of  property  without  due 
process  of  law,  and  requires  the  equal  protection  of  the  laws. 
In  so  holding  the  court  is  not  thereby  interfering  with  the  power 
of  the  legislature  over  railroads,  as  corporations  or  common 
carriers,  to  so  legislate  as  to  fix  maximum  rates,  to  prevent 
extortion  or  undue  charges,  and  to  promote  the  safety,  health, 
convenience  or  proper  protection  of  the  public;  but  it  only 
holds  that  the  particular  legislation  in  review  in  this  case  does 
not  partake  of  the  character  of  legislation  fairly  or  reasonably 
necessary  to  attain  any  of  those  objects  and  that  it  does  vio- 
late the  Federal  Constitution  as  above  stated.22 

§  412.  Right  of  Carrier  to  Fix  Rates— To  What  Extent 
Legislative  Power  Affected  Thereby — Exemptions — Right  to 
Create  Railroad  Commission — Power  to  Amend,  etc.,  Suc- 
cessor Company — Obligation  of  Contracts.23 — The  right  of 
a  State  to  reasonably  limit  the  amount  of  charges  by  a  rail- 
road company  for  the  transportation  of  persons  and  property 
within  its  jurisdiction,  cannot  be  granted  away  by  the  legis- 
lature unless  by  words  of  positive  grant,  or  words  equivalent 
in  law.24  And  an  exemption  of  a  common  carrier  from  legis- 
lative control  in  respect  to  its  rates  of  fare  must  clearly  appear 
from  the  language  used,  which  must  plainly  and  unmistak- 
al  ly  evidence  an  intent  inconsistent  with  the  exercise  of  such 
control.25    If  a  statute  grants  to  a  railroad  company  the  right 

22  Lake  Shore  &  M.  S.  Ry.  Co.  v.  24  Sup.  Ct.  756,  considered  in  §  398, 
Smith,  173  U.  S.  486,  19  Sup.  Ct.  565,    herein.    See  also  §  399,  herein. 

43  L.  ed.  858,  rev'g  Smith  v.  Lake  "  Indianapolis  v.  Navin,  151  Ind. 

Shore  &  M.  S.  Ry.  Co.,   114  Mich.  139,  47  N.  E.  525,  41  L.  R.  A.  337,  14 

460,  72  N.  W.  328,  4  Det.  L.  N.  662,  Nat.  Corp.  Rep.  774.    Rehearing  de- 

8  Am.  &  Eng.  R.  Cas.  (N.  S.)  496.  nied  in  151  Ind.  156,  41  L.  R.  A.  344, 

23  See  §  409,  herein,  as  to  test  of  5  Det,  Leg.  N.,  No.  19,  30  Chic.  Leg. 
reasonableness  of  rates  in  connection  N.  414,  51  N.  E.  80.  See  §  327, 
with  right  of  company  to  fix  rates.  herein. 

24  Railroad  Commission  Cases  Examine  also  the  following  cases: 
(Stone  v.  New  Orleans  &  North-  United  States:  Metropolitan  St. 
eastern  Rd.  Co.),  116  U.  S.  352,  29  Ry.  Co.  v.  New  York  Board  of  Tax 
I.  ed.  651,  6  Sup.  Ct.  349,  391.  Com-  Commissioners,  199  U.  S.  1,  50  L.  ed. 
pare  Cleveland,  City  of,  v.  Cleveland  65,  25  Sup.  Ct.  705;  Citizens'  Bank  v. 
Ry.  Co.,  194  U.  S.  517,  48  L.  ed.  1102,  Parker,  192  U.  S.  73,  48  L.  ed.  346,  24 

685 


§    412  REGULATION    AND   CONTROL  CONTINUED — 

"from  time  to  time  to  fix,  regulate  and  receive,  the  tolls  and 
charges  by  them  to  be  received  for  transportation,"  it  does  not 
deprive  the  State  of  its  power,  within  the  limits  of  its  general 
authority,  as  controlled  by  the  Constitution  of  the  United 
States,  to  act  upon  the  reasonableness  of  the  tolls  and  charges 
so  fixed  and  regulated.  So  an  act  of  incorporation  which 
confers  upon  the  directors  of  a  railroad  company  the  power 
to  make  by-laws,  rules  and  regulations  touching  the  disposition 
and  management  of  the  company's  property  and  all  matters 
appertaining  to  its  concerns,  confers  no  right  which  is  violated 
by  the  creation  of  a  state  railroad  commission,  charged  with 
the  general  duty  of  preventing  the  exaction  of  unreasonable 
or  discriminating  rates  upon  transportation  done  within  the 
limits  of  the  State,  and  with  the  enforcement  of  reasonable 
police  regulations  for  the  comfort,  convenience  and  safety  of 
travellers  and  persons  doing  business  with  the  company  within 

Sup.  Ct..l81;  Wheeling  &  Belmont  Nebraska:  Lincoln  St.  Ry.  Co.  v. 

Bridge  Co.  v.  Wheeling  Bridge  Co.,  City  of  Lincoln,  61  Neb.  109,  110,  84 

138  U.  S.  287,  34  L.  ed.  967,  11  Sup.  N.  W.  802. 

Ct.  301;  Chicago,  B.  &  K.  C.  R.  Co.  v.  New  Jersey:  Sisters  of  Charity  of 

Guffey,  120  U.  S.  569,  30  L.  ed.  732,  St.  Elizabeth  v.  Corey,  73  N.  J.  L. 

7  Sup.  Ct.  693;  Memphis  Gas  Co.  v.  699,  65  Atl.  500. 

Shelby  County,    109  U.  S.   398,   27  Ohio:   Knoup   v.    Piqua   Bank,    1 

L.  ed.  976,  3  Sup.  Ct.  205;  Ruggles  v.  Ohio  St.  603. 

Illinois,  108  U.  S.  526,  2  Sup.  Ct.  832,  Washington:  Thurston  County  v. 

27  L.  ed.  872;  Hoge  v.  Railroad  Co.,  Sisters  of  Charity,  14  Wash.  264,  44 

99  U.  S.  348,  25  L.  ed.  303;  North  Pac.  252. 

Missouri  R.  Co.  v.  Maguire,  20  Wall.  See  §§  254,  255,  herein. 

(87  U.  S.)  46,  22  L.  ed.  287;  Delaware  In  order  to  exempt  a  railroad  cor- 

Railroad  Tax,   18  Wall.   (85  TJ.  S.)  poration  from  legislative  interference 

206,  21   L.  ed.  888;   Gilman  v.  She-  with   its   rates   of  charges  within  a 

boygan,  2  Black  (67  U.  S.),  510,  17  designated  limit,  it  must  appear  that 

L.  ed.  305;  Jefferson  Branch  Bank  v.  the  exemption  was  made  in  its  char- 

Skelly,   1  Black  (66  U.  S  ),  436,   17  ter  by  clear  and   unmistakable  lan- 

L.  ed.   173;  Ohio  Life  Ins.  &  Trust  guage,  inconsistent  with  any  reserva- 

Co.  v.  Debolt,   16  How.   (57  TJ.  S.)  tion  of  power  by  the  State  to  that 

416,  14  L.  ed.  997.  effect.     Georgia  Rd.  &  Bkg.  Co.  v. 

Illinois:  People,  Koehersperger,  v.  Smith,  128  U.  S.  174,  33  L.  ed.  377, 

Chicago   Theological   Seminary,    174  9  Sup.  Ct.  47,  16  Wash.  L.  Rep.  749. 

111.  177,  51  N.  E.  198.  A    contract    of    exemption    from 

Louisiana:  State  of  Louisiana  v  future  general  legislation,  unless  it  is 

Morgan,  28  La.  Ann.  482.  given  expressly  or  follows  by  impli- 

686 


RATES   AND   CHARGES  §    412 

the  State.26  So  where  an  amendment  was  made  to  the  charter 
of  a  railroad  company  in  Illinois  providing  that  "the  said 
company  shall  have  power  to  make,  ordain  and  establish  all 
such  by-laws,  rules  and  regulations  as  may  be  deemed  ex- 
pedient and  necessary  to  fulfill  the  purposes  and  carry  into 
effect  the  provisions  of  this  act,  and  for  the  well  ordering,  reg- 
ulating and  securing  the  affairs,  business  and  interest  of  the 
company:  Provided,  that  the  same  be  not  repugnant  to  the 
Constitution  and  laws  of  the  United  States,  or  repugnant  to 
this  act.  The  board  of  directors  shall  have  power  to  estab- 
lish such  rates  of  toll  for  the  conveyance  of  persons  or  property 
upon  the  same  as  they  shall  from  time  to  time  by  their  by-laws 
determine,  and  to  levy  and  collect  the  same  for  the  use  of  such 
company;"  it  was  held  that  inasmuch  as  the  power  to  estab- 
lish rates  was  to  be  exercised  through  by-laws,  and  the  power 
to  make  by-laws  was  restricted  to  such  as  should  not  be  re- 
pugnant, among  other  things,  to  the  laws  of  the  State,  the 
amendment  did  not  release  the  company  from  restrictions 
upon  the  amount  of  rates  contained  in  general  and  special 
statutes  of  the  State.27  In  another  case  the  facts  were  as  fol- 
lows: the  Chicago  and  Northwestern  Railway  Company  was, 
by  its  charter,  and  the  charters  of  other  companies  consoli- 
dated with  it,  authorized  "to  demand  and  receive  such  sum 
or  sums  of  money  for  the  transportation  of  persons  and  prop- 
erty, and  for  storage  of  property,  as  it  should  deem  reason- 
able." The  constitution  of  Wisconsin,  in  force  when  the  char- 
ters were  granted,  provided  that  all  acts  for  the  creation  of 
corporations  within  the  State  "may  be  altered  or  repealed  by 
the  legislature  at  any  time  after  their  passage."  It  was  de- 
cided, that  the  legislature  had  power  to  prescribe  a  maximum 
of  charges  to  be  made  by  said  company  for  transporting  per- 
sons or  property  within  the  State,  or  taken  up  outside  the 

cation  equally  clear  with  express  2C  Railroad  Commission  Cases 
words,  cannot  be  deemed  to  exist.  (Stone  v.  New  Orleans  &  North- 
Louisville  &  N.  R.  Co.  v.  Kentucky,  eastern  Rd.  Co.),  116  U.  S.  352,  29 
183  U.  S.  503,  46  L.  ed.  298,  22  L.  ed .051,  6  Sup.  Ct.  349,  391. 
Sup.  Ct.  95  (carriers;  long  and  short  "  Ruggles  v.  Illinois,  108  U.  S.  526, 
hauls).  2  Sup.  Ct.  832,  27  L.  ed.  812. 

687 


§  412     REGULATION  AND  CONTROL  CONTINUED — 

State  and  brought  within  it,  or  taken  up  inside  and  carried 
without.28  Again,  where  a  charter  to  a  railroad  company  vests 
it  "with  all  the  rights  and  privileges  conferred  by  the  laws  of 
this  commonwealth,  and  subject  to  such  as  apply  to  railroads 
generally,"  the  corporation  is  thereby  subjected  to  state  laws 
regulating  rates,  notwithstanding  provisions  of  exemption  in 
statutes  organizing  other  previous  companies  to  whose  rights 
it  succeeded;  and  the  successor  who  becomes  possessed  of  the 
rights  and  property  of  the  company  so  chartered  takes  them 
subject  in  like  manner  to  such  laws.29  So  a  state  railroad  cor- 
poration, voluntarily  formed,  cannot  exempt  itself  from  the 
control  reserved  to  the  State  by  its  constitution,  and,  if  not 
protected  by  a  valid  contract,  cannot  successfully  invoke  the 
interposition  of  Federal  courts,  in  respect  to  long  and  short 
haul  clauses  in  a  state  constitution,  simply  on  the  ground  that 
a  railroad  is  property.30  Where  a  railroad  company's  charter 
is  granted  after  a  constitutional  provision  is  adopted  author- 
izing a  limitation  of  maximum  rates,  the  objection  cannot 
successfully  be  urged  that  such  a  limitation  violates  its  charter 
contract.31  But  it  is  also  held  that  the  act  of  a  legislature  in 
attempting  to  fix  a  rate  impairs  the  obligation  of  contracts  as 
to  a  railroad  company  holding,  by  a  prior  grant,  an  exclusive 
power  to  fix  rates,  within  certain  limits,  for  transportation.32 

28  Peik  v.  Chicago  &  Northwestern  Co.,  154  U.  S.  362,  38  L.  ed.  1014,  14 
Ry.  Co.,  94  U.  S.  164,  24  L.  ed.  97.  Sup.  Ct.  1047,  4  Inters.  Comm.  Rep. 
See  §§  317  et  seq.,  herein.  560;    Georgia    Rd.    &    Bkg.    Co.    v. 

29  Norfolk  &  Western  R.  Co.  v.  Smith,  128  U.  S.  174,  32  L.  ed.  377,  9 
Pendleton,  156  U.  S.  667,  15  Sup.  Ct.  Sup.  Ct.  47;  New  Orleans  Gas  Light 
413,  39  L.  ed.  574.  Co.  v.   Louisiana  Light  &  H.  P.  & 

30  Louisville  &  N.  R.  Co.  v.  Ken-  Mfg.  Co.,  115  U.  S.  650,  29  L.  ed.  516, 
tucky,  183  U.  S.  503,  46  L.  ed.  298,  6  Sup.  Ct.  252;  Ruggles  v.  Illinois, 
22  Sup.  Ct.  95.  108  U.  S.  526,  2  Sup.  Ct.  832,  27 

31  Wellman  v.  Chicago  &  G.  T.  R.  L.  ed.  812;  Chicago,  Burlington  & 
Co.,  83  Mich.  592,  47  N.  W.  489,  45  Quincy  R.  Co.  v.  Iowa,  94  TJ.  S.  155, 
Am.  &  Eng.  Ry.  Cas.  249,  9  Ry.  &  24  L.  ed.  94;  The  Binghamton 
Corp.  L.  J.  102.  Bridge,   3  Wall.    (70  U.  S.)   51,   18 

32  Pingree  v.  Michigan  Cent.  R.  L.  ed.  137;  Bridge  Proprietors  v. 
Co.,  118  Mich.  314,  5  Det.  L.  N.,  Hoboken  Land  &  Improv.  Co.,  1 
No.  31,  53  L.  R.  A.  274,  citing  Wall.  (68  U.  S.)  116,  17  L.  ed.  571; 
Reagan  v.  Farmers'   Loan  &  Trust  West  River  Bridge  v.  Dix,  6  How. 

688 


RATES    AND    CHARGES 


§  412 


It  seems,  therefore,  that  even  though  a  statute  may  authorize 
a  railroad  company  to  fix  reasonable  charges  for  the  transporta- 
tion of  persons  or  property  within  a  State,  still,  as  a  general 
rule,  such  authorization  does  not  constitute  an  irrepealable 
contract  under  which  the  company  shall  have  the  right  for  all 
future  time  to  prescribe  its  rates  of  fare  or  toll  free  from  all 
control  by  the  legislature  in  intrastate  matters.  This  conclu- 
sion is,  however,  subject  to  the  exceptions  that  an  exemption 
from  legislative  control  in  the  matter  of  rates  may  have  been 
granted  in  clear  and  unmistakable  terms,  or  there  may  exist 
such  a  contract  with  the  company  that  future  legislative  ac- 
tion in  fixing  rates  may  operate  as  an  impairment  of  the  ob- 
ligation of  contracts;  but  the  question  of  police  powers  is 
entitled  to  weight  in  this  connection.33 


(47  U.  S.)  507,  12  L.  ed.  535;  Stone  v. 
Yazoo  &  M.  V.  R.  Co.,  62  Miss.  607, 
52  Am.  Rep.  193. 

33  See  Minneapolis  E.  Ry.  Co  v. 
Minnesota,  134  U.  S.  467,  33  L.  ed. 
985,  10  Sup.  Ct.  473;  Chicago,  M.  & 
St.  P.  Ry.  Co.  v.  Minnesota,  134 
U.  S.  418,  33  L.  ed.  970,  10  Sup.  Ct. 
462,  702;  Chicago,  I.  &  L.  Ry.  Co. 
v.  Railroad  Commission  of  Indiana 
(Ind.  App.,  1906),  78  N.  E.  338. 
Examine  Beardsley  v.  New  York, 
L.  E.  &  W.  R.  Co.,  44  N.  Y.  Supp. 
175,  15  App.  Div.  251;  Dillon  v.  Erie 
R.  Co.,  43  N.  Y.  Supp.  320,  19  Misc. 
116.     See  §§  311  et  seq.,  399,  heroin. 

As  to  exemptions  and  obligations 
of  contracts,  examine  the  following 
cases  for  principle  involved: 

United  States:  Rochester  Rail- 
way Co.  v.  City  of  Rochester,  205 
U.  S.  236,  51  L.  ed.  — ,  27  Sup.  Ct. 
— ;  Powers  v.  Detroit,  G.,  H.  &  M. 
Ry.  Co.,  201  U.  S.  543,  50  L.  ed.  860, 
26  Sup.  Ct.  556;  Grand  Rapids  &  I. 
Ry.  Co.  v.  Osborn,  193  U.  S.  17,  48 
L.  ed.  598  (aff'g  Commissioners  of 
Railroads  v.  Grand  Rapids  &  I.  Ry. 
Co.,  130  Mich.  248,  89  N.  W.  967); 

44 


Gulf  &  S.  I.  R.  Co.  v.  Hewes,  183 
U.  S.  66,  46  L.  ed.  86,  22  Sup.  Ct.  26; 
Citizens'  Savings  Bank  of  Owensboro 
v.  Owensboro,  173  U.  S.  630,  43  L.  ed. 
840,  19  Sup.  Ct.  530;  Wilmington  & 
W.  R.  Co.  v.  Alsbrook,  146  U.  S.  279, 
13  Sup.  Ct.  72,  36  L.  ed.  972;  Jeffer- 
son Bank  v.  Skelly,  1  Black  (66 
U.  S.),  436,  17  L.  ed.  173;  Ohio  Life 
Ins.  &  Trust  Co.  v.  Debolt,  16  How. 
(57  U.  S.)  416,  14  L.  ed.  230;  Shields 
v.  Ohio,  95  U.  S.  319,  24  L.  ed.  357; 
New  Jersey  v.  Yard,  95  U.  S.  104, 
24  L.  ed.  352;  Houston  &  T.  C.  R.  Co. 
v.  Storey,  149  Fed.  499;  Yazoo  &  M. 
V.  R.  Co.  v.  Board  of  Levee  Commrs. 
(C.  C),  37  Fed.  24. 

Maryland:  State  v.  Northern  Cen- 
tral Ry.  Co.,  90  Md.  447,  45  Atl. 
465. 

New  Jersey:  Board  of  Assessors 
v.  Plainfield  Water  Supply  Co.,  67 
N.  J.  L.  357,  52  Atl.  230;  Hancock, 
Comptroller,  v.  Singer  Mfg.  Co.,  62 
N.  J.  L.  289,  328,  42  L.  R.  A.  852,  41 
Atl.  846,  per  Van  Syckel,  J.;  State, 
Singer  Mfg.  Co.,  v.  Heppenhcimer,  58 
N.J.  I.  633,  34  Atl.  103. 

Pennsylvania:  Commonwealth  v. 

689 


§  413     REGULATION  AND  CONTROL  CONTINUED — 

§  413.  Right  of  Carrier  to  Fix  Rates — Basis  Upon  Which 
Fixed.34 — The  approval  of  a  board  of  railroad  and  warehouse 
commissioners  does  not  justify  a  common  carrier  in  imposing 
an  unlawful  freight  rate.35  If  a  railroad  company  has  the  fran- 
chise right  to  charge  one  fare  from  a  certain  village,  through 
which  it  operates  its  road,  to  another  village,  and  it  charges  a 
fare  through  to  a  point  within  the  first  village,  it  does  not  in- 
cur a  statutory  penalty  for  charging  excessive  fares  if  it  re- 
quires another  fare  from  that  point  out  toward  such  other 
village.36  Railroad  companies  have  the  right  to  sell  non- 
transferable reduced  rate  excursion  tickets,37  and  the  non- 
transferability and  forfeiture  embodied  in  such  tickets  is  not 
only  binding  upon  the  original  purchaser  and  anyone  subse- 
quently acquiring  them  but,  under  the  provisions  of  the  act 
to  regulate  commerce,38  it  is  the  duty  of  the  railroad  company 
to  prevent  the  wrongful  use  of  such  tickets  and  the  obtaining 
of  a  preference  thereby  by  anyone  other  than  the  original 
purchaser.39  There  are  a  great  many  factors  and  circum- 
stances to  be  considered  in  fixing  a  rate,40  among  other  things: 
1.  The  value  of  the  service  to  the  shipper,  including  the  value 
of  the  goods  and  the  profit  he  could  make  out  of  them  by  ship- 
ment. This  is  considered  an  ideal  method,  when  not  interfered 
with  by  competition  or  other  factors.  This  method  is  con- 
sidered practical,  and  is  based  on  an  idea  similar  to  taxation. 

Philadelphia  &  E.  R.  Co.,   164  Pa.  N.    E.    1090;    Railroad    Law,    §  39, 

252,  35  W.  N.  C.  217,  30  Atl.  145.  Laws  1890,  p.  1096,  c.  565. 

South  Carolina:  Columbia  Water  37  Bitterman  v.  Louisville  &  Nash- 
Power  Co.  v.  Campbell,  75  S.  C.  34,  ville  Ry.  Co.,  207  U.  S.  205,  aff'g  144 
54  S.  E.  833.  Fed.  34;  Mosher  v.  St.  Louis,  I.  M.  & 

Tennessee:    State,    Memphis,    v.  S.  R.  Co.,  127  U.  S.  249,  8  Sup.  Ct. 

Butler,    86    Tenn.    614,   8    S.     W.  324. 

586.  38  See  §  22,  24  Stat.  387,  25  Stat. 

34  See  §  409,  herein,  as  to  test  of  862. 

reasonableness  of  rates  in  connection        39  Bitterman  v.  Louisville  &  Nash- 
with  right  of  company  to  fix  rates.        ville  Ry.  Co.,  207  U.  S.  205,  aff'g  144 

35  McGrew  v.  Missouri  Pac.  Ry.  Co.    Fed.  34. 

(Mo.  App.,  1906),  94  S.  W.  719.  40  Interstate    Commerce    Commis- 

36  Byars  v.  Bennington  &  H.  V.  sion  v.  Chicago  Great  W.  Ry.  C,  141 
Ry.  Co.,  90  N.  Y.  Supp.  736,  99  App.  Fed.  1003,  1015,  citing  Noyes,  Am. 
Div.  34,  aff'd  in  184  N.  Y.  554,  76  R.  R.  Rates,  pp.  61  et  seq.,  85-109. 

690 


RATES    AND   CHARGES 


§  413 


2.  The  cost  of  service  to  the  carrier  would  be  an  ideal  theory, 
but  it  is  not  practical.  Such  cost  can  be  reached  approxi- 
mately, but  not  accurately  enough  to  make  this  factor  con- 
trolling. It  is  worthy  of  consideration,  however.  3.  Weight, 
bulk  and  convenience  of  transportation.  4.  The  amount  of 
the  product  or  commodity  in  the  hands  of  a  few  persons  to 
ship  or  compete  for,  recognizing  the  principle  of  selling  cheaper 
at  wholesale  than  at  retail.  5.  General  public  good,  including 
good  to  the  shipper,  the  railroad  company  and  the  different 
localities.  6.  Competition,  which  the  authorities  and  experts 
recognize  as  a  very  important  factor.  None  of  the  above 
factors  alone  are  considered  necessarily  controlling  by  the 
authorities.  Neither  are  they  all  controlling  as  a  matter  of 
law.  It  is  a  question  of  fact  to  be  decided  by  the  proper  tri- 
bunal in  each  case  as  to  what  is  controlling.  In  every  case  the 
Supreme  Court  has  held  that  competition  may  be  controlling. 
In  only  one  case  has  it,  as  a  matter  of  fact,  been  held  not  to 
be  a  defense.41 


n  Interstate  Commerce  Commis- 
sion v.  Chicago  Great  Western  Ry. 
Co.  (C.  C),  141  Fed.  1003,  1015,  per 
Bethea,  Dist.  J.  (case  is  affirmed  in 
209  U.  S.  108,  considered  in  §  415, 
herein).  Citing  to  first  point,  Inter- 
state Commerce  Commission  v.  Balti- 
more &  O.  Ry.  Co.  (C.  C),  43  Fed. 
37,  53;  Noyes  Am.  R.  R.  Rates,  53. 
Citing  to  second  point,  Interstate 
Commerce  Commission  v.  Baltimore 
&  O.  R.  Co.  (C.  C),  43  Fed.  37;  Ran- 
some  v.  Eastern  Ry.  Co.  (1857),  1  C. 
B.  437,  2G  L.  J.  C.  P.  91;  Judson  on 
Interstate  Commerce,  §§  148,  149; 
Western  Union  Telegraph  Co.  v.  Call, 
181  U.  S.  92,  21  Sup.  Ct.  561,  45  L. 
ed.  765;  Interstate  Commerce  Com- 
mission v.  Detroit,  Grand  Haven  & 
Milwaukee  Rd.  Co.,  167  U.  S.  6:!.;,  17 
Sup.  Ct.  986,  42  L.  ed.  306.  Citing  to 
fourth  point,  Interstate  Commerce 
Commission  v.  Baltimore  &  O.  Ry. 
Co.,  145  U.  S.  263,  12  Sup.  Ct.  844, 


36  L.  ed.  699.  Citing  to  fifth  point, 
Interstate  Commerce  Commission  v. 
Baltimore  &  O.  Ry.  Co.,  145  U.  S. 
263,  12  Sup.  Ct.  844,  36  L.  ed.  699. 
Citing  to  sixth  point  Pickering  Phipps 
v.  London  &  Northwestern  Ry.  Co.,  2 
Q.  B.  D.  (1892)  229  (which  construes 
§  2  of  the  English  Act  of  1854,  which 
is  almost  like  §  3  of  our  Interstate 
Commerce  Act);  Interstate  Com- 
merce Commission  v.  Baltimore  &  O. 
Ry.  Co.,  145  U.  S.  263,  12  Sup.  Ct. 
844,  36  L.  ed.  699;  Cincinnati,  New 
Orleans  &  Texas  Pacific  Ry.  Co.  v. 
Interstate  Commerce  Commission, 
162  U.  S.  184,  16  Sup.  Ct  700,  40 
L.  ed.  935;  Interstate  Commerce 
Commission  v.  Alabama  Midland  Ry. 
Co.,  168  U.  S.  144,  18  Sup.  Ct.  45,  42 
L.  ed.  414;  Louisville  &  Nashville 
Rd.  Co.  v.  Behlmer,  175  U.  S.  648,  20 
Sup.  Ct.  209,  44  L  ed.  309;  East 
Tennessee,  Virginia  &  Georgia  Ry. 
Co.  v.  Interstate  Commerce  Commis- 

691 


§    414  REGULATION    AND    CONTROL   CONTINUED — 

§  414.  Right  of  Carrier  to  Fix  Rates  in  Competition — 
Long  and  Short  Hauls — Discrimination. — When  competi- 
tion which  controls  rates  prevails  at  a  given  point  a  dissimi- 
larity of  circumstances  and  conditions  is  created  justifying 
a  carrier  in  charging  a  lesser  rate  at  such  point,  it  being 
the  longer  distance,  than  it  exacts  to  a  shorter  distance  and 
non-competitive  point  on  the  same  line.  A  nearer  and  non- 
competitive point  on  the  same  line  is  not  entitled  to  lower  rates 
prevailing  at  a  longer  distance  and  competitive  place  on  the 
theory  that  it  could  also  be  made  a  competitive  point  if  des- 
ignated lines  of  railway  carriers  by  combinations  between 
themselves  agreed  to  that  end.  The  competition  necessary  to 
produce  a  dissimilarity  of  conditions  must  be  real  and  con- 
trolling and  not  merely  conjectural  or  possible.  Where  a 
charge  of  a  higher  rate  for  a  shorter  than  a  longer  haul  over 
the  same  line  is  lawful  because  of  the  existence  of  controlling 
competition  at  the  longer  distance  place,  the  mere  fact  that 
the  less  charge  is  made  for  the  longer  distance  does  not  alone 
suffice  to  cause  the  lesser  rate  for  the  longer  distance  to  be 
unduly  discriminatory.  And  where  the  commission  has  found 
a  rate  to  be  unreasonable  solely  because  it  was  violative  of  the 
act  which  forbids  a  greater  charge  for  a  lesser  than  for  a  longer 
distance  under  stated  conditions  and  which  prohibits  undue 
discrimination,  it  is  held  that  as  the  grounds  upon  which  such 
holding  is  based  resulted  from  an  error  of  law,  it  is  proper  not 
to  conclude  the  question  of  the  inherent  unreasonableness  of 
the  rates,  but  to  leave  it  open  for  further  action  by  the  com- 
mission to  be  considered  free  from  the  errors  of  law  which  had 
previously  influenced  that  body.  A  carrier  in  order  to  give 
particular  places  the  benefit  of  their  proximity  to  a  competi- 
tive point  and  thereby  afford  them  a  lower  rate  than  they 
would  otherwise  enjoy,  may  take  into  consideration  the  rate 
to  the  point  of  competition  and  make  it  the  basis  of  rates  to 

sion,  181  U.  S.  1,  21  Sup.  Ct.  516,  45  L.  ed.  940;  Interstate  Commerce 
L.  ed.  719;  Texas  &  Pacific  Ry.  Co.  Commission  v.  Louisville  &  Nashville 
v.  Interstate  Commerce  Commission,  Rd.  Co.,  190  U.  S.  273,  23  Sup.  Ct. 
1-62  U.  S.   197,   16  Sup.  Ct.  666,  40    687,  47  L.  ed.  1047. 

692 


• 


RATES    AND    CHARGES  §    414 

the  points  in  question.  To  give  a  lower  rate  as  the  result  of 
competition  does  not  violate  the  provisions  of  the  act  to  reg- 
ulate commerce.42  So  it  has  been  settled  by  the  Supreme 
Court  of  the  United  States  that  competition  which  is  con- 
trolling on  traffic  and  rates  produces  in  and  of  itself  the  dis- 
similarity of  circumstances  and  condition  described  in  the 
statute,  and  that  where  this  condition  exists  a  carrier  has  a 
right  of  his  own  motion  to  take  it  into  view  in  fixing  rates  to 
the  competitive  point.43  The  only  principle  by  which  it  is 
possible  to  enforce  the  whole  statute  of  1887, 44  is  this  con- 
struction: that  is,  that  a  competition  which  is  real  and  sub- 
stantial and  exercises  a  potential  influence  on  rates  to  a  par- 
ticular point,  brings  into  play  the  dissimilarity  of  circumstance 
and  condition  provided  by  the  statute,  and  justifies  the  lesser 
charge  to  the  more  distant  and  competitive  point  than  to  the 
nearer  and  non-competitive  place,  and  that  this  right  is  not 
destroyed  by  the  mere  fact  that  incidentally,  the  lesser  charge 
to  the  competitive  point  may  seemingly  give  a  preference  to 
that  point,  and  the  greater  rate  to  the  non-competitive  point 
may  apparently  engender  a  discrimination  against  it.45    Where 

42  Interstate    Commerce    Commis-  for  the  longer  haul;  but  since  that 

sion  v.  Louisville  &  X.  R.  Co.,   190  ruling  of  the  commission  was  made 

U.  S.  273,  47  L.  ed.  1047,  23  Sup.  Ct.  the  rule  stated  in  the  text  has  been 

687.  settled    by    the    Federal    Supreme 

*3  East  Tennessee,  etc.,  Ry.  Co.  v.  Court  in  Louisville  &  Nashville  Rail- 
Interstate  Commerce  Commission,  road  Co.  v.  Behlmer,  175  U.  S.  648, 
181  U.  S.  1,  45  L.  ed.  719,  21  Sup.  Ct.  44  L.  ed.  309,  20  Sup.  Ct.  .209,  and 
516.  In  this  case  the  Interstate  other  cases  cited;  and  the  construc- 
Commerce  Commission  found  as  a  tion  affixed  by  the  commission  to  the 
fact  that  the  competition  at  Nash-  statute  upon  which  its  entire  action 
ville,  which  formed  the  basis  of  the  in  this  case  was  predicated  was  held 
contention  in  this  case,  was  of  such  a  to  be  wrong. 

preponderating  nature  that  the  car-  As  to  competition,  see  cases  cited 

ricrs  must  either  continue  to  charge  under  §§  413-415,  herein. 

a    lesser   rate  for  a  longer  haul  to  "Act    February  4,    1887,   c.    int. 

Nashville   than    was    asked    for   the  24  Stat.  379. 

shorter  haul  to  Chattanooga,  or  to  45  East  Tennessee,  etc.,  Ry.  Co.  v. 

abandon  all  Nashville  traffic,  novor-  Interstate     Commerce     Commission, 

thelesa  they  were  forbidden  by  the  isi  U.  S.  1,  45  L.  ed.  719,  21  Sup.  Ct. 

act  of  February  4,  1887,  c.  104,  24  516. 
Stat.  379,  to  make  the  lesser  charge 

693 


§    415  REGULATION    AND    CONTROL   CONTINUED — 

a  state  constitution  provided  that:  "It  shall  be  unlawful  for 
any  person  or  corporation,  owning  or  operating  a  railroad  in 
this  State,  or  any  common  carrier,  to  charge  or  receive  any 
greater  compensation  in  the  aggregate  for  the  transportation 
of  passengers,  or  of  property  of  like  kind,  under  substantially 
similar  circumstances  and  conditions,  for  a  shorter  than  for  a 
longer  distance  over  the  same  line,  in  the  same  direction,  the 
shorter  being  included  within  the  longer  distance;  but  this  shall 
not  be  construed  as  authorizing  any  common  carrier,  or  per- 
son or  corporation,  owning  or  operating  a  railroad  in  this  State, 
to  receive  as  great  compensation  for  a  shorter  as  for  a  longer 
distance:  Provided,  That,  upon  application,  such  common  car- 
rier, or  person  or  corporation,  owning  or  operating  a  railroad 
in  this  State,  may  in  special  cases,  after  investigation  by  the 
commission,  be  authorized  to  charge  less  for  longer  than  for 
shorter  distances  for  the  transportation  of  persons  or  property; 
and  the  commission  may,  from  time  to  time,  prescribe  the  ex- 
tent to  which  such  common  carrier,  or  person  or  corporation, 
owning  or  operating  a  railroad  in  this  State,  may  be  relieved 
from  operation  of  this  section,"  it  was  held  that  as  construed 
by  the  courts  of  the  State,  and  so  far  as  it  was  made  applicable 
to  or  affected  interstate  commerce,  it  was  invalid.46 

§  415.  Right  of  Carrier  to  Fix  Rates  in  Competition  Con- 
tinued— Interstate  Commerce — Presumption  of  Good  Faith 
— Discrimination.  — Railroads  are  the  private  property  of  their 
owners,  and  while  the  public  has  the  power  to  prescribe  rules 
for  securing  faithful  and  efficient  service  and  equality  between 
shippers  and  communities,  the  public  is  in  no  proper  sense  a 
general  manager.  The  companies  may,  subject  to  change  of 
rates  provided  for  in  the  Interstate  Commerce  Act,  contract 
with  shippers  for  single  and  successive  transportations  and  in 
fixing  their  own  rates  may  take  into  account  competition,  pro- 
vided it  is  genuine  and  not  a  mere  pretense.  There  is  no  pre- 
sumption of  wrong  arising  from  a  change  of  rate  made  by  a 

46  Louisville  &  N.  R.  Co.  v.  Eu-   bank,  184  U.  S.  27,  22  Sup.  Ct.  277, 

46  L.  ed.  416. 

694 


RATES    AND    CHARGES 


§  415 


carrier.  The  presumption  of  good  faith  and  integrity  attends 
the  action  of  carriers  as  it  does  the  action  of  other  corporations 
and  individuals,  as  those  presumptions  have  not  been  over- 
thrown by  any  legislation  in  respect  to  carriers.  A  rate  on  the 
manufactured  article  resulting  from  genuine  competition  and 
natural  conditions  is  not  necessarily  an  undue  and  unreasonable 
discrimination  against  a  manufacturing  community  because  it 
is  lower  than  the  rate  on  the  raw  material.47 


47  Interstate  Commerce  Commis- 
sion v.  Chicago  Great  Western  Ry. 
Co.,  209  U.  S.  108  (aff'g  141  Fed. 
1003,  considered  in  §  410,  herein). 
It  was  held  that  under  the  circum- 
stances of  this  case  there  was  no  un- 
due and  unreasonable  discrimination 
against  the  Chicago  packing-house 
industries  on  the  part  of  the  railroads 
in  making,  as  the  result  of  actual 
competition  and  conditions,  a  lower 
rate  for  manufactured  packing-house 
products  than  for  live  stock  from 
Missouri  River  points  to  Chicago. 
The  opinion  of  the  court,  per 
Brewer,  J.,  is  as  follows:  "It  is  un- 
necessary to  define  the  full  scope 
and  meaning  of  the  prohibition 
found  in  §  3  of  the  Interstate  Com- 
merce Act — or  even  to  determine 
whether  the  language  is  sufficiently 
definite  to  make  the  duties  cast  on 
the  Interstate  Commerce  Commission 
ministerial,  and  therefore  such  as 
may  legally  be  imposed  upon  a 
ministerial  body,  or  legislative,  and 
therefore,  under  the  federal  Consti- 
tution, a  matter  for  Congressional 
action — for  within  any  fair  construc- 
tion of  the  terms  'undue  or  unrea- 
sonable' the  findings  of  the  Circuit 
Court  place  the  action  of  the  railroads 
out  ride  the  reach  of  condemnation. 
The  complainant,  before  the  Inter- 
state Commerce  action,  was  an  in- 
corporated association.  The  purposes 
for  which  it  was  organize.  1  were,  as 


stated  in  its  charter,  '  to  establish  and 
maintain  a  commercial  exchange;  to 
promote  uniformity  in  the  customs 
and  usages  of  merchants;  to  provide 
for  the  speedy  adjustment  of  all  busi- 
ness disputes  between  its  members; 
to  facilitate  the  receiving  and  dis- 
tributing of  live  stock,  as  well  as  to 
provide  for  and  maintain  a  rigid  in- 
spection thereof,  thereby  guarding 
against  the  sale  or  use  of  unsound  or 
unhealthy  meats;  and  generally  to 
secure  to  its  members  the  benefits  of 
co-operation  in  the  furtherance  of 
their  legitimate  pursuits.'  Its  mem- 
bers were,  as  found  by  the  Com- 
merce Commission,  'engaged  in  the 
purchase,  shipment  and  sale  of  live 
stock  for  themselves  and  upon  com- 
mission.' It  was  such  an  association, 
with  members  engaged  in  the  busi- 
ness named,  that  initiated  these  pro- 
ceedings and  in  whose  behalf  they 
were  primarily  prosecuted.  While  it 
may  be  that  the  proceedings  are  not 
to  be  narrowly  limited  to  an  inquiry 
whether  this  particular  complainant 
has  been  in  any  way  injured  by  the 
action  of  the  railroad  companies,  yet 
that  question  must  be  regarded  as 
the  one  which  was  the  special  object 
of  inquiry  and  consideration.  It  is 
true  that  the  Commission  sub  e 
quently  commenced  under  the  Elkins 
Act  an  independent  suit  in  its  own 
name,  but  it  was  practically  to  en- 
force the  award  made  by  the  Com- 

695 


§  416 


REGULATION  AND  CONTROL  CONTINUED- 


§  416.  Railroad  Rates — Excessive  Penalties — Equal  Pro- 
tection of  Law. — A  state  railroad  rate  statute  which  imposes 
such  excessive  penalties  that  parties  affected  are  deterred  from 


mission  after  its  inquiry  into  the 
controversy  between  the  live  stock 
exchange  and  the  railroad  companies. 
It  must  be  remembered  that  railroads 
are  the  private  property  of  their 
owners;  that  while  from  the  public 
character  of  the  work  in  which  they 
are  engaged  the  public  has  the  power 
to  prescribe  rules  for  securing  faithful 
and  efficient  service  and  equality  be- 
tween shippers  and  communities,  yet 
in  no  proper  sense  is  the  public  a  gen- 
eral manager.  As  said  in  Int.  Com. 
Com.  v.  Ala.  Mid.  R.  R.  Co.,  168 
U.  S.  144,  172,  42  L.  ed.  414,  18  Sup. 
Ct.  45,  quoting  from  the  opinion  of 
Circuit  Judge  Jackson,  afterwards 
Mr.  Justice  Jackson  of  this  court,  in 
Int.  Com.  Com.  v.  B.  &  O.  R.  R.  Co., 
43  Fed.  Rep.  37,  50:  'Subject  to  the 
two  leading  prohibitions  that  their 
charges  shall  not  be  unjust  or  unrea- 
sonable, and  that  they  shall  not  un- 
justly discriminate  so  as  to  give  un- 
due preference  or  disadvantage  to 
persons  or  traffic  similarly  circum- 
stanced, the  act  to  regulate  commerce 
leaves  common  carriers,  as  they  were 
at  the  common  law,  free  to  make 
special  rates  looking  to  the  increase 
of  their  business,  to  classify  their 
traffic,  to  adjust  and  apportion  their 
rates  so  as  to  meet  the  necessities  of 
commerce  and  of  their  own  situation 
and  relation  to  it,  and  generally  to 
manage  their  important  interests 
upon  the  same  principles  which  are 
regarded  as  sound  and  adopted  in 
other  trades  and  pursuits.'  It  follows 
that  railroad  companies  may  contract 
with  shippers  for  a  single  transporta- 
tion or  for  successive  transportations, 
subject  though  it  may  be  to  a  change 

696 


of  rates  in  the  manner  provided  in  the 
Interstate  Commerce  Act — Armour 
Packing  Co.  v.  The  United  States, 
209  U.  S.  56,  and  also  that  in  fixing 
their  own  rates  they  may  take  into 
account  competition  with  other  car- 
riers, provided  only  that  the  competi- 
tion is  genuine  and  not  a  pretense. 
Int.  Com.  Com.  v.  B.  &  O.  R.  R.  Co., 
145  U.  S.  263,  12  Sup.  Ct.  844,  36  L. 
ed.  699;  T.  &  P.  Ry.  Co.  v.  Int.  Com. 
Com.,  162  U.  S.  197,  16  Sup.  Ct.  666, 
40  L.  ed.  940;  Int.  Com.  Com.  v.  Ala. 
Mid.  Ry.  Co.,  supra;  Louisville  &  N. 
R.  R.  Co.  v.  Behlmer,  175  U.  S.  648, 
44  L.  ed.  309,  20  Sup.  Ct.  209;  East 
Tenn.,  Virginia  &  Georgia  Ry.  Co.  v. 
Int.  Com.  Com.,  181  U.  S.  1,  21  Sup. 
Ct.  516,  45  L.  ed.  719;  Int.  Com.  Com. 
v.  Louisville  &  N.  R.  R.  Co.,  190  U.  S. 
273,  47  L.  ed.  1047,  32  Sup.  Ct.  687. 
It  must  also  be  remembered  that 
there  is  no  presumption  of  wrong 
arising  from  a  change  of  rate  by  a 
carrier.  The  presumption  of  honest 
intent  and  right  conduct  attends  the 
action  of  carriers  as  well  as  it  does  the 
action  of  other  corporations  or  indi- 
viduals in  their  transactions  in  life. 
Undoubtedly  when  rates  are  changed 
the  carrier  making  the  change  must, 
when  properly  called  upon,  be  able  to 
give  a  good  reason  therefor,  but  the 
mere  fact  that  a  rate  has  been  raised 
carries  with  it  no  presumption  that  it 
was  not  rightfully  done.  Those  pre- 
sumptions of  good  faith  and  integrity 
which  have  been  recognized  for  ages 
as  attending  human  action  have  not 
been  overthrown  by  any  legislation  in 
respect  to  common  carriers.  The 
Commerce  Commission  did  not  find 
whether   the   rates  were   reasonable 


RATES    AND    CHARGES 


§  416 


testing  its  validity  in  the  courts  denies  the  carrier  the  equal 
protection  of  the  law  without  regard  to  the  question  of  the 
insufficiency  of  the  rates  prescribed.48 


or  unreasonable  per  se.  Its  omission 
may  have  been  owing,  partly  at 
least,  to  the  decision  in  Interstate 
Commerce  Commission  v.  Cincinnati, 
N.  O.  &  T.  P.  Ry.  Company,  167  U.  S. 
479,  506,  42  L.  ed.  243,  17  Sup.  Ct. 
896,  for  this  controversy  arose  before 
the  amendment  of  June  29,  1906, 
34  Stat.  584.  On  the  other  hand,  the 
Circuit  Court  found  specifically  that 
the  live-stock  rates  were  reasonable, 
and  also  that  the  rates  for  carrying 
packers'  products  and  dressed  meats 
were  remunerative.  See  Findings  1 
and  7.  Obviously  shippers  had  in  the 
rates  considered  separately  no  ground 
of  challenge.  But  the  burden  of  com- 
plaint is  not  that  any  rates  taken  by 
themselves  were  too  high,  but  that 
the  difference  between  those  on  live 
stock  and  those  on  dressed  meats  and 
packers'  products  worked  an  unjust 
discrimination.  It  is  insisted  that 
'the  making  of  the  live-stock  rate 
higher  than  the  product  rate  is  vio- 
lative of  the  almost  universal  rule 
that  the  rates  on  raw  material  shall 
not  be  higher  than  on  the  manu- 
factured product.'  This  may  be  con- 
ceded, but  that  the  rule  is  not 
universal  the  proposition  itself  recog- 
nizes, and  the  findings  of  the  court 
give  satisfactory  reasons  for  the  ex- 
ception here  shown.  See  Findings  2, 
3  and  9.  The  cost  of  carriage,  the 
risk  of  injury,  the  larger  amount 
which  the  companies  are  called  upon 
to  pay  out  in  damages  make  sufficient 
explanation.  They  do  away  with  the 
idea  that  in  the  relation  established 


between  the  two  kinds  of  charges  any 
undue  or  unreasonable  preference 
was  intended  or  secured.  Find- 
ing No.  6  is  very  persuasive.  It 
reads:  'Sixth.  That  the  present  rates 
on  live  stock  have  not  materially 
affected  any  of  the  markets,  prices, 
or  shipments;  that  they  are  reason- 
ably fair  to  Chicago  and  to  the  ship- 
pers; that  the  shipments  of  live  stock 
from  points  between  Chicago  and  the 
Missouri  River  and  St.  Paul  are  as 
great  in  proportion  to  the  volume  of 
business  as  before  the  present  rates 
were  made;  that  the  majority  of  the 
live  stock  comes  to  Chicago  from 
points  as  near  as  150  miles  this  side 
of  the  Missouri  River  and  St.  Paul, 
and  that  the  lower  rate  given  to  the 
packers  does  not  seem  to  directly  in- 
fluence or  injure  the  shippers  of  live 
stock.'  If  the  rates  complained  of 
have  not  materially  affected  any  of 
the  markets,  prices  or  shipments;  if 
they  are  reasonably  fair  to  Chicago 
and  the  shippers;  if  the  shipments  of 
live  stock  from  the  west  to  Chicago 
are  as  great  in  proportion  to  the  bulk 
of  the  business  as  before  the  present 
rates  were  made,  and  the  lower  rate 
given  to  the  packers  does  not  directly 
influence  or  injure  the  shippers  of 
live  stock;  it  is  difficult  to  see 
what  foundation  there  can  be  for  the 
claim  of  an  undue  and  unreasonable 
preference.  It  would  seem  a  fair 
inference  from  the  findings  that  the 
real  complaint  was  that  the  railroad 
companies  did  not  so  fix  their  rates 
as  to  help  the  Chicago  packing  in- 


48  Younf,  Ex  parte.  209  I'.  S.  123.    and  owing  to  its  very  great  impor- 
Other  points  are  decided  in  this  case    tance  we  insert  it  here. 

007 


§  41(i 


REGULATION  AND  CONTROL  CONTINUED- 


dustry;  that  they  recognized  the  fact 
that  along  the  Missouri  River  had 
been  put  up  large  packing-houses, 
and,  without  any  intent  to  injure 
Chicago,  had  fixed  reasonable  rates 
for  the  carrying  of  live  stock  to  such 
packing-houses  and  also  to  Chicago; 
that  those  packing-houses  being 
nearer  to  the  cattle  fields  were  able 
to  engage  in  the  packing  industry  as 
conveniently  and  successfully  as  the 
packing-houses  in  Chicago.  If  we 
were  at  liberty  to  consider  the  mere 
question  of  sentiment,  certainly  to 
place  packing-houses  close  to  the 
cattle  fields,  thus  avoiding  the  neces- 
sity of  long  transportation  of  the  liv- 
ing animals— a  transportation  which 
cannot  be  accomplished  without 
more  or  less  suffering  to  them — and 
to  induce  transportation  to  those 
nearer  packing-houses  would  deserve 
to  be  commended  rather  than  con- 
demned. With  reference  to  competi- 
tion we  have  referred  to  the  cases  in 
this  court  in  which  that  matter  has 
been  considered.  According  to  the 
fourth  finding  the  rates  in  question 
given  to  the  packers  at  the  Missouri 
River  and  St.  Paul  were  the  result  of 
competition.  Without  recapitulating 
all  the  facts  disclosed  in  that  finding 
it  is  enough  to  say  that  the  Chicago 
Great  Western  Railway  Company, 
which  had  the  longest  line  from  Chi- 
cago to  Missouri  River  points,  made  a 
reduction  in  the  rates,  and  did  this,  as 
its  president  testified,  'for  the  pur- 
pose of  securing  a  greater  proportion 
of  the  traffic  in  the  products  of  live 
stock  than  it  had  been  previously 
able  to  obtain.'  That  is  one  of  the 
facts  inducing  competition,  and  one 
of  the  results  expected  to  flow  from  a 


reduction  of  rates.  It  certainly  of 
itself  deserves  no  condemnation.  In 
order  to  secure  to  themselves  what 
was  likely  to  be  transferred  to  the 
Great  Western  by  virtue  of  its  reduc- 
tion of  rates,  the  other  companies 
also  made  a  reduction  and,  as  shown 
by  the  fifth  finding,  the  competition 
was  not  the  result  of  agreement,  but 
was  an  '  actual,  genuine,  competition.' 
It  may  be  true,  as  contended  by 
counsel  for  the  appellant,  that  even  a 
genuine  competition  which  results  in 
a  change  of  rates  does  not  necessarily 
determine  the  question  whether  the 
rates  as  fixed  work  an  undue  pref- 
erence or  create  an  unlawful  dis- 
crimination. Those  rates  fixed  may 
make  a  preference  or  discrimination 
irrespective  of  the  motives  which 
caused  the  railway  companies  to 
adopt  them,  and  yet  the  fact  of  a 
genuine  competition  does  make 
against  the  contention  that  the  rates 
were  intended  to  work  injustice.  An 
honest  and  fair  motive  was  the  cause 
of  the  change  in  rates;  honest  and 
fair  on  the  part  of  the  Great  Western 
in  its  effort  to  secure  more  business, 
and  equally  honest  and  fair  on  the 
part  of  the  other  railway  companies 
in  the  effort  to  retain  as  much  of  the 
business  as  was  possible.  In  other 
words,  this  competition  eliminates 
from  the  case  an  intent  to  do  an  un- 
lawful act,  and  leaves  for  considera- 
tion only  the  question  whether  the 
rates  as  established  do  work  an  undue 
preference  or  discrimination;  and  as 
the  findings  of  the  court  show  that 
the  result  of  the  new  rates  has  not 
been  to  change  the  volume  of  traffic 
going  to  Chieago,  or  materially  affect 
the    business    of    the    original    com- 


Ex  parte  YOUNG. 

HEADNOTES. 

While    this    court    will    not 

698 


take 


jurisdiction  if  it  should  not,  it  must 
take  jurisdiction  if  it  should.  It  can- 
not,  as  the  legislature  may,   avoid 


RATES    AND    CHARGES 


§  416 


plaint,  it  would  seem  necessarily  to 
result  that  the  charge  of  an  unlawful 
discrimination  is  not  proved.  In 
short,  there  was  no  intent  on  the 
part  of  the  railway  company  to  do  a 
wrongful  act,  and  the  act  itself  did 
not  work  any  substantial  injury  to 
the  rights  of  the  complainant.  We 
have  not  attempted  to  review  in 
detail  the  great  mass  of  testimony, 
amounting  to  two  enormous  printed 


volumes.  It  is  enough  to  say  that  an 
examination  of  it  clearly  shows  suffi- 
cient reasons  for  the  findings  of  fact 
made  by  the  Circuit  Court.  In  short, 
the  findings  of  the  Circuit  Court  were 
warranted  by  the  testimony,  and 
those  findings  make  it  clear  that 
there  was  no  unlawful  discrimination. 
The  decree  of  the  Circuit  Court  is 
Affirmed." 


meeting  a  measure  because  it  desires 
so  to  do. 

In  this  case  a  suit  by  a  stock- 
holder against  a  corporation  to  enjoin 
the  directors  and  officers  from  com- 
plying with  the  provisions  of  a  state 
statute,  alleged  to  be  unconstitu- 
tional, was  properly  brought  within 
Equity  R,ule  94  of  this  court. 

An  order  of  the  Circuit  Court  com- 
mitting one  for  contempt  for  violation 
of  a  decree  entered  in  a  suit  of  which 
it  did  not  have  jurisdiction  is  un- 
lawful; and,  in  such  case,  upon 
proper  application,  this  court  will 
discharge  the  person  so  held. 

Although  the  determination  of 
whether  a  railway  rate  prescribed  by 
a  state  statute  is  so  low  as  to  be  con- 
fiscatory involves  a  question  of  fact, 
its  solution  raises  a  Federal  question, 
and  the  sufficiency  of  rates  is  a  ju- 
dicial question  over  which  the  proper 
Circuit  Court  has  jurisdiction,  as  one 
arising  under  the  Constitution  of  the 
United  St.it i 

Whether  a  state  statute  is  uncon- 
stitutional because  the  penalties  for 
its  violation  are  so  enormous  thai 
persons  affected  thereby  are  pre- 
vented from  resorting  to  the  courts 
for  the  purpose  of  determining  the  va- 
lidity of  tin'  statute  and  are  thereby 
denied  the  equal  protection  of  the 
law  and  their  property  rendered 
liable  to  be  taken  without  due  proces 


of  law,  is  a  Federal  question  and  gives 
the  Circuit  Court  jurisdiction. 

Whether  the  state  railroad  rate 
statute  involved  in  this  case,  al- 
though on  its  face  relating  only  to 
intrastate  rates,  was  an  interference 
with  interstate  commerce  held  to 
raise  a  Federal  question  which  could 
not  be  considered  frivolous. 

A  state  railroad  rate  statute  which 
imposes  such  excessive  penalties  that 
parties  affected  are  deterred  from 
testing  its  validity  in  the  courts 
denies  the  carrier  the  equal  protec- 
tion of  the  law  without  regard  to  the 
question  of  insufficiency  of  the  rates 
prescribed;  it  is  within  the  jurisdic- 
tion, and  is  the  duty,  of  the  Circuit 
Court  to  inquire  whether  such  rates 
are  so  low  as  to  be  confiscatory,  and 
if  so  to  permanently  enjoin  the  rail- 
road company,  at  the  suit  of  one  of 
its  stockholders,  from  putting  them 
in  force,  and  it  has  power  pending 
such  inquiry  to  grant  a  temporary 
injunction  to  the  same  effect. 

While  there  is  no  ride  permitting  a 
person  to  disobey  a  statute  with  im- 
punity at  least  once  for  the  purpose 
of  testing  its  validity,  where  such 
validity  can  only  be  determined  by 
judicial  investigation  and  construc- 
tion, a  provision  in  the  statute  which 
imposes  such  severe  penalties  for 
disobedience  of  its  provisions  as  to 
intimidate  the  parties  affected  thereby 

699 


§  416 


REGULATION    AND    CONTROL   CONTINUED — 


from  resorting  to  the  courts  to  test 
its  validity  practically  prohibits  those 
parties  from  seeking  such  judicial 
construction  and  denies  them  the 
equal  protection  of  the  law. 

The  attempt  of  a  state  officer  to 
enforce  an  unconstitutional  statute 
is  a  proceeding  without  authority  of, 
and  does  not  affect,  the  State  in  its 
sovereign  or  governmental  capacity, 
and  is  an  illegal  act  and  the  officer  is 
stripped  of  his  official  character  and 
is  subjected  in  his  person  to  the  con- 
sequences of  his  individual  conduct. 
The  State  has  no  power  to  impart  to 
its  officer  immunity  from  responsi- 
bility to  the  supreme  authority  of  the 
United  States. 

When  the  question  of  the  validity 
of  a  state  statute  with  reference  to 
the  Federal  Constitution  has  been 
first  raised  in  a  Federal  Court  that 
court  has  the  right  to  decide  it  to  the 
exclusion  of  all  other  courts. 

It  is  not  necessary  that  the  duty  of 
a  state  officer  to  enforce  a  statute  be 
declared  in  that  statute  itself  in  order 
to  permit  his  being  joined  as  a  party 
defendant  from  enforcing  it;  if  by 
virtue  of  his  office  he  has  some  con- 
nection with  the  enforcement  of  the 
act  it  is  immaterial  whether  it  arises 
by  common  general  law  or  by  statute. 

While  the  courts  cannot  control 
the  exercise  of  the  discretion  of  an 
executive  officer,  an  injunction  pre- 
venting such  officer  from  enforcing 
an  unconstitutional  statute  is  not  an 
interference  with  his  discretion. 

The  Attorney  General  of  the  State 
of  Minnesota,  under  his  common-law 
power  and  the  state  statutes,  has  the 
general  authority  imposed  upon  him 
of  enforcing  constitutional  statutes 
of  the  State  and  is  a  proper  party  de- 
fendant to  a  suit  brought  to  prevent 
the  enforcement  of  a  state  statute  on 
the  ground  of  its  unconstitutionality. 

700 


While  a  Federal  court  cannot  in- 
terfere in  a  criminal  case  already 
pending  in  a  state  court,  and  while, 
as  a  general  rule,  a  court  of  equity 
cannot  enjoin  criminal  proceedings, 
those  rules  do  not  apply  when  such 
proceedings  are  brought  to  enforce 
an  alleged  unconstitutional  state 
statute,  after  the  unconstitutionality 
thereof  has  become  the  subject  of 
inquiry  in  a  suit  pending  in  a  Federal 
court  which  has  first  obtained  juris- 
diction thereover;  and  under  such 
circumstances  the  Federal  court  has 
the  right  in  both  civil  and  criminal 
cases  to  hold  and  maintain  such 
jurisdiction  to  the  exclusion  of  all 
other  courts. 

While  making  a  state  officer  who 
has  no  connection  with  the  en- 
forcement of  an  act  alleged  to  be 
unconstitutional  a  party  defendant 
is  merely  making  him  a  party  as 
a  representative  of  the  State,  and 
thereby  amounts  to  making  the  State 
a  party  within  the  prohibition  of  the 
Eleventh  Amendment,  individuals, 
who,  as  officers  of  the  State,  are 
clothed  with  some  duty  in  regard  to 
the  enforcement  of  the  laws  of  the 
State,  and  who  threaten  and  are 
about  to  commence  an  action,  either 
civil  or  criminal,  to  enforce  an  un- 
constitutional state  statute  may  be 
enjoined  from  so  doing  by  a  Federal 
court. 

Under  such  conditions  as  are  in- 
volved in  this  case  the  Federal  court 
may  enjoin  an  individual  or  a  state 
officer  from  enforcing  a  state  statute 
on  account  of  its  unconstitutionality, 
but  it  may  not  restrain  the  state 
court  from  acting  in  any  case  brought 
before  it  either  of  a  civil  or  criminal 
nature,  or  prevent  any  investigation 
or  action  by  a  grand  jury. 

An  injunction  by  a  Federal  court 
against  a  state  court  would  violate 


RATES    AND    CHARGES 


§  416 


the  whole  scheme  of  this  Govern- 
ment, and  it  does  not  follow  that  be- 
cause an  individual  may  be  enjoined 
from  doing  certain  things  a  court 
may  be  similarly  enjoined. 

No  adequate  remedy  at  law,  suf- 
ficient to  prevent  a  court  of  equity 
from  acting,  exists  in  a  case  where 
the  enforcement  of  an  unconstitu- 
tional state  rate  statute  would  re- 
quire the  complainant  to  carry  mer- 
chandise at  confiscatory  rates  if  it 
complied  with  the  statute  and  sub- 
ject it  to  excessive  penalties  in  case 
it  did  not  comply  therewith  and  its 
validity  was  finally  sustained. 

While  a  common  carrier  sued  at 
common  law  for  penalties  under,  or 
on  indictment  for  violation  of,  a  state 
rate  statute  might  interpose  as  a  de- 
fense the  unconstitutionality  of  the 
statute  on  account  of  the  confiscatory 
character  of  the  rates  prescribed,  a 
jury  cannot  intelligently  pass  upon 
such  a  matter;  the  proper  method  is 
to  determine  the  constitutionality  of 
the  statute  in  a  court  of  equity  in 
which  the  opinions  of  experts  may  be 
taken  and  the  matter  referred  to  a 
master  to  make  the  needed  computa- 
tions and  to  find  the  necessary  facts 
on  which  the  court  may  act. 

A  state  rate  statute  is  to  be  re- 
garded as  prima  facie  valid,  and  the 
onus  rests  on  the  carrier  to  prove  the 
contrary. 

The  railroad  interests  of  this 
country  are  of  great  magnitude,  and 
the  thousands  of  persons  interested 
therein  are  entitled  to  protection 
from  the  laws  and  from  the  courts 
equally  with  the  owners  of  all  other 
kinds  of  property,  and  the  courts 
having  jurisdiction,  whether  Federal 
or  tite,  should  at  all  times  be  open 
to  them,  and  where  there  is  no  ade- 
quate remedy  at  law  the  proper 
course  to  protect  their  rights  is  by 


suit  in  equity  in  which  all  interested 
parties  are  made  defendants. 

While  injunctions  against  the  en- 
forcement of  a  state  rate  statute 
should  not  be  granted  by  a  Federal 
court  except  in  a  case  reasonably 
free  from  doubt,  the  equity  juris- 
diction of  the  Federal  court  has  been 
constantly  exercised  for  such  pur- 
pose. 

The  Circuit  Court  of  the  United 
States  having,  in  an  action  brought 
by  a  stockholder  of  the  Northern 
Pacific  Railway  Company  against 
the  officers  of  the  road,  certain  ship- 
pers and  the  Attorney  General  cer- 
tain other  officials  of  the  State  of 
Minnesota,  held  that  a  railroad  rate 
statute  of  Minnesota  was  uncon- 
stitutional and  enjoined  all  the  de- 
fendants from  enforcing  such  statute, 
and  the  Attorney  General  having 
refused  to  comply  with  such  order, 
the  Circuit  Court  fined  and  com- 
mitted him  for  contempt,  and  this 
court  refused  to  discharge  him  on 
habeas  corpus. 

STATEMENT  OF  THE  CASE. 

"  An  original  application  was  made 
to  this  court  for  leave  to  file  a  petition 
for  writs  of  habeas  corpus  and  cer- 
tiorari in  behalf  of  Edward  T.  Young, 
petitioner,  as  attorney  general  of  the 
State  of  Minnesota. 

"  Leave  was  granted  and  a  rule 
entered  directing  the  United  States 
marshal  for  the  District  of  Minnesota, 
Third  Division,  who  held  the  peti- 
tioner in  his  custody,  to  show  cause 
why  such  petition  should  not  be 
granted. 

"The  marshal,  upon  the  return  of 
the  order  to  show  cause,  justified  his 
detention  of  the  petitioner  by  virtue 
of  an  order  of  the  Circuit  Court  of  the 
United  States  for  the  District  of 
Minnesota,  which  adjudged  the  peti- 

701 


§  116 


REGULATION  AND  CONTROL  CONTLNUED- 


tioner  guilty  of  contempt  of  that 
court  and  directed  that  he  be  fined 
the  sum  of  $100,  and  that  he  should 
dismiss  the  mandamus  proceedings 
brought  by  him  in  the  name  and  be- 
half of  the  State  in  the  Circuit  Court 
of  the  State,  and  that  he  should  stand 
committed  to  the  custody  of  the 
marshal  until  that  order  was  obeyed. 
The  case  involves  the  validity  of  the 
order  of  the  Circuit  Court  committing 
him  for  contempt. 

"The  facts  are  these:  The  legis- 
lature of  the  State  of  Minnesota  duly 
created  a  railroad  and  warehouse 
commission,  and  that  commission  on 
the  sixth  of  September,  1906,  made 
an  order  fixing  the  rates  for  the 
various  railroad  companies  for  the 
carriage  of  merchandise  between 
stations  in  that  State  of  the  kind  and 
classes  specified  in  what  is  known  as 
the  '  Western  Classification.'  These 
rates  materially  reduced  those  then 
existing,  and  were  by  the  order  to 
take  effect  November  15,  1906.  In 
obedience  to  the  order  the  railroads 
filed  and  published  the  schedules  of 
rates,  which  have  ever  since  that 
time  been  carried  out  by  the  com- 
panies. 

"  At  the  time  of  the  making  of  the 
above  order  it  was  provided  by  the 
Revised  Laws  of  Minnesota,  1905 
(§  1987),  that  any  common  carrier 
who  violated  the  provisions  of  that 
section  or  willfully  suffered  any  such 
unlawful  act  or  omission,  when  no 
specific  penalty  is  imposed  therefor, 
'if  a  natural  person,  shall  be  guilty 
of  a  gross  misdemeanor,  and  shall  be 
punished  by  a  fine  of  not  less  than 
twenty-five  hundred  dollars,  nor 
more  than  five  thousand  dollars  for 
the  first  offense,  and  not  less  than 
five  thousand  dollars  nor  more  than 
ten  thousand  dollars  for  each  subse- 
quent offense;  and,  if  such  carrier  or 

702 


warehouseman  be  a  corporation,  it 
shall  forfeit  to  the  State  for  the  first 
offense  not  less  than  twenty-five 
hundred  dollars  nor  more  than  five 
thousand  dollars,  and  for  each  subse- 
quent offense  not  less  than  five 
thousand  dollars  nor  more  than  ten 
thousand  dollars,  to  be  recovered  in  a 
civil  action.' 

"This  provision  covered  disobedi- 
ence to  the  orders  of  the  Commis- 
sion. 

"  On  the  fourth  of  April,  1907,  the 
legislature  of  the  State  of  Minnesota 
passed  an  act  fixing  two  cents  a  mile 
as  the  maximum  passenger  rate  to  be 
charged  by  railroads  in  Minnesota. 
(The  rate  had  been  theretofore  three 
cents  per  mile.)  The  act  was  to  take 
effect  on  the  first  of  May,  1907,  and 
was  put  into  effect  on  that  day  by 
the  railroad  companies,  and  the  same 
has  been  observed  by  them  up  to  the 
present  time.  It  was  provided  in  the 
act  that  'Any  railroad  company,  or 
any  officer,  agent  or  representative 
thereof,  who  shall  violate  any  pro- 
vision of  this  act  shall  be  guilty  of  a 
felony  and,  upon  conviction  thereof, 
shall  be  punished  by  a  fine  not  ex- 
ceeding five  thousand  (5,000)  dollars, 
cr  by  imprisonment  in  the  State 
prison  for  a  period  not  exceeding  five 
(5)  years,  or  both  such  fine  and  im- 
prisonment.' 

"  On  the  eighteenth  of  April,  1907, 
the  legislature  passed  an  act  (chap- 
ter 232  of  the  laws  of  that  year), 
which  established  rates  for  the  trans- 
portation of  certain  commodities 
(not  included  in  the  Western  Classi- 
fication) between  stations  in  that 
State.  The  act  divided  the  com- 
modities to  which  it  referred  into 
seven  classes,  and  set  forth  a  schedule 
of  maximum  rates  for  each  class 
when  transported  in  carload  lots  and 
established     the     minimum     weight 


RATES    AND    CHARGES 


§  416 


which  constituted  a  carload  of  each 
class. 

"Section  5  provided  that  it  should 
not  affect  the  power  or  authority  of 
the  Railroad  and  Warehouse  Com- 
mission, except  that  no  duty  should 
rest  upon  that  commission  to  enforce 
any  rates  specifically  fixed  by  the 
act  or  any  other  statute  of  the  State. 
The  section  further  provided  gen- 
erally that  the  orders  made  by  the 
Railroad  and  Warehouse  Commission 
prescribing  rates  should  be  the  ex- 
clusive legal  maximum  rates  for  the 
transportation  of  the  commodities 
enumerated  in  the  act  between  points 
within  that  State. 

"Section  6  directed  that  every 
railroad  company  in  the  State  should 
adopt  and  publish  and  put  into  effect 
the  rates  specified  in  the  statute,  and 
that  every  officer,  director,  traffic 
manager  or  agent  or  employe"  of  such 
railroad  company  should  cause  the 
adoption,  publication  and  use  by 
such  railroad  company  of  rates  not 
exceeding  those  specified  in  the  act; 
'and  any  officer,  director  or  such 
agent  or  employe  of  any  such  railroad 
company  who  violates  any  of  the 
provisions  of  this  section,  or  who 
causes  or  counsels,  advises  or  assists 
any  such  railroad  company  to  violate 
any  of  the  provisions  of  this  section, 
shall  be  guilty  of  a  misdemeanor,  and 
may  be  prosecuted  therefor  in  any 
county  into  which  its  railroad  ex- 
tends, and  in  which  it  has  a  station, 
and  upon  a  conviction  thereof  be 
punished  by  imprisonment  in  the 
county  jail  for  a  period  not  exceeding 
ninety  days.'  The  act  was  to  take 
effect  June  1,  1<)()7. 

"The  railroad  companies  did  not 
obey  the  provisions  of  this  act  so  far 
as  concerned  the  adoption  and  pub- 
lication of  rates  as  specified  there- 
in. 


"On  the  thirty-first  of  May,  1907, 
the  day  before  the  act  was  to  take 
effect,  nine  suits  in  equity  were  com- 
menced in  the  Circuit  Court  of  the 
United  States  for  the  District  of 
Minnesota,  Third  Division,  each  suit 
being  brought  by  stockholders  of  the 
particular  railroad  mentioned  in  the 
bill,  and  in  each  case  the  defendants 
named  were  the  railroad  company  of 
which  the  complainants  were,  re- 
spectively, stockholders,  and  the 
members  of  the  Railroad  and  Ware- 
house Commission,  and  the  attorney 
general  of  the  State,  Edward  T. 
Young,  and  individual  defendants 
representing  the  shippers  of  freight 
upon  the  railroad. 

"The  order  punishing  Mr.  Young 
for  contempt  was  made  in  the  suit 
in  which  Charles  E.  Perkins,  a  citizen 
of  the  State  of  Iowa,  and  David  C. 
Shepard,  a  citizen  of  the  State  of 
Minnesota,  were  complainants,  and 
the  Northern  Pacific  Railway  Com- 
pany, a  corporation  organized  under 
the  laws  of  the  State  of  Wisconsin, 
Edward  T.  Young,  petitioner  herein, 
and  others,  were  parties  defendant. 
All  of  the  defendants,  except  the 
railway  company,  are  citizens  and 
residents  of  the  State  of  Minnesota. 

"  It  was  averred  in  the  bill  that 
the  suit  was  not  a  collusive  one  to 
confer  on  the  court  jurisdiction  of  a 
case  of  which  it  could  not  otherwise 
have  cognizance,  but  that  the  objects 
and  purposes  of  the  suit  were  to  en- 
join the  railway  company  from  pub- 
lishing  or  adopting  (or  continuing  to 
observe,  if  already  adopted)  the  rates 
and  tariffs  prescribed  and  set  forth  in 
tin-  two  acts  <>f  the  legislature  above 
mentioned  and  in  the  orders  of  the 
Railroad  and  Warehouse  Commis- 
sion, and  also  to  enjoin  the  other  de- 
fendants from  attempting  to  enforce 
such  provisions,  or  from  instituting 

703 


§  416 


REGULATION  AND  CONTROL  CONTINUED- 


any  action  or  proceeding  against  the 
defendant  railway  company,  its  offi- 
cers, etc.,  on  account  of  any  violation 
thereof,  for  the  reason  that  the  said 
acts  and  orders  were  and  each  of 
them  was  violative  of  the  Constitu- 
tion of  the  United  States. 

"The  bill  also  alleged  that  the 
orders  of  the  Railroad  Commission 
of  September  6,  1906,  May  3,  1907, 
the  passenger  rate  act  of  April  4, 
1907,  and  the  act  of  April  18,  1907, 
reducing  the  tariffs  and  charges  which 
the  railway  company  had  thereto- 
fore been  permitted  to  make,  were 
each  and  all  of  them  unjust,  un- 
reasonable and  confiscatory,  in  that 
they  each  of  them  would,  and  will  if 
enforced,  deprive  complainants  and 
the  railway  company  of  their  prop- 
erty without  due  process  of  law,  and 
deprive  them  and  it  of  the  equal 
protection  of  the  laws,  contrary  to 
and  in  violation  of  the  Constitution 
of  the  United  States  and  the  amend- 
ments thereof.  It  was  also  averred 
that  the  complainants  had  de- 
manded of  the  president  and  manag- 
ing directors  of  the  railway  company 
that  they  should  cease  obedience  to 
the  orders  of  the  Commission  dated 
September  6,  1906,  and  May  3,  1907, 
and  to  the  acts  already  mentioned, 
and  that  the  rates  prescribed  in  such 
orders  and  acts  should  not  be  put 
into  effect,  and  that  the  said  corpo- 
ration, its  officers  and  directors, 
should  institute  proper  suit  or  suits 
to  prevent  said  rates  (named  in  the 
orders  and  in  the  acts  of  the  legis- 
lature) from  continuing  or  becoming 
effective,  as  the  case  might  be,  and 
to  have  the  same  declared  illegal; 
but  the  said  corporation,  its  president 
and  directors,  had  positively  de- 
clined and  refused  to  do  so,  not  be- 
cause they  considered  the  rates  a  fair 
and  just  return  upon  the  capital  in- 

704 


vested  or  that  they  would  not  be 
confiscatory,  but  because  of  the  se- 
verity of  the  penalties  provided  for 
the  violation  of  such  acts  and  orders, 
and  therefore  they  could  not  subject 
themselves  to  the  ruinous  conse- 
quences which  would  inevitably  re- 
sult from  failure  on  their  part  to 
obey  the  said  laws  and  orders,  a  re- 
sult which  no  action  by  themselves, 
their  stockholders  or  directors,  could 
possibly  prevent. 

"The  bill  further  alleged  that  the 
orders  of  the  Commission  of  Septem- 
ber, 1906,  and  May,  1907,  and  the 
acts  of  April  4,  1907,  and  April  18, 
1907,  were,  in  the  penalties  pre- 
scribed for  their  violation,  so  drastic 
that  no  owner  or  operator  of  a  rail- 
way property  could  invoke  the  juris- 
diction of  any  court  to  test  the 
validity  thereof,  except  at  the  risk 
of  confiscation  of  its  property,  and 
the  imprisonment  for  long  terms  in 
jails  and  penitentiaries  of  its  officers, 
agents  and  employes.  For  this  rea- 
son the  complainants  alleged  that 
the  above-mentioned  orders  and  acts, 
and  each  of  them,  denied  to  the 
defendant  railway  company  and 
its  stockholders,  including  the  com- 
plainants, the  equal  protection  of 
the  laws,  and  deprived  it  and  them 
of  their  property  without  due  process 
of  law,  and  that  each  of  them  was, 
for  that  reason,  unconstitutional  and 
void. 

"The  bill  also  contained  an  aver- 
ment that  if  the  railway  company 
should  fail  to  continue  to  observe 
and  keep  in  force  or  to  observe  and 
put  in  force  the  orders  of  the  Com- 
mission and  the  acts  of  April  4,  1907, 
and  April  18,  1907,  such  failure 
might  result  in  an  action  against  the 
company  or  criminal  proceedings 
against  its  officers,  directors,  agents 
or  employes,  subjecting  the  company 


RATES    AND    CHARGES 


§  416 


and  such  officers  to  an  endless  number 
of  actions  at  law  and  criminal  pro- 
ceedings; that  if  the  company  should 
fail  to  obey  the  order  of  the  Com- 
mission or  the  acts  of  April  4,  1907, 
and  April  18,  1907,  the  said  Edward 
T.  Young,  as  Attorney  General  of  the 
State  of  Minnesota,  would,  as  com- 
plainants were  advised,  and  believed, 
institute  proceedings  by  mandamus 
or  otherwise  against  the  railway  com- 
pany, its  officers,  directors,  agents, 
or  employes  to  enforce  said  or- 
ders and  all  the  provisions  thereof, 
and  that  he  threatened  and  would 
take  other  proceedings  against  the 
company,  its  officers,  etc.,  to  the 
same  end  and  for  the  same  purpose, 
and  that  he  would  on  such  failure 
institute  mandamus  or  other  pro- 
ceedings for  the  purpose  of  enforcing 
said  acts  and  each  thereof,  and  the 
provisions  and  penalties  thereof. 
Appropriate  relief  by  injunction 
against  the  action  of  the  defendant 
Young  and  the  railroad  commission 
was  asked  for. 

"A  temporary  restraining  order 
was  made  by  the  Circuit  Court,  which 
only  restrained  the  railway  company 
from  publishing  the  rates  as  pro- 
vided for  in  the  act  of  April  18,  1907, 
and  from  reducing  its  tariffs  to  the 
figures  set  forth  in  that  act;  the  court 
refusing  for  the  present  to  interfere 
by  injunction  with  regard  to  the 
orders  of  the  Commission  and  the 
act  of  April  4,  1907,  as  the  railroads 
had  already  put  them  in  operation, 
but  it  restrained  Edward  T.  Young, 
Attorney  General,  from  taking  any 
steps  against  the  railroads  to  enforce 
the  remedies  or  penalties  specified 
in  the  act  of  April  is,  L907. 

"Copies  of  the  bill  and  the  re- 
straining order  were  served,  among 
others,  upon  the  defendant  Mr.  Ed- 
ward    T.  Young,  Attorney  General, 

45 


who  appeared  specially  and  only  for 
the  purpose  of  moving  to  dismiss  the 
bill  as  to  him,  on  the  ground  that  the 
court  had  no  jurisdiction  over  him  as 
Attorney  General;  and  he  averred 
that  the  State  of  Minnesota  had  not 
consented,  and  did  not  consent,  to 
the  commencement  of  this  suit 
against  him  as  Attorney  General  of 
the  State,  which  suit  was  in  truth 
and  effect  a  suit  against  the  said 
State  of  Minnesota,  contrary  to  the 
Eleventh  Amendment  of  the  Consti- 
tution of  the  United  States. 

"The  Attorney  General  also  filed 
a  demurrer  to  the  bill,  on  the  same 
grounds  stated  in  the  motion  to  dis- 
miss. The  motion  was  denied  and 
the  demurrer  overruled. 

"Thereupon,  on  the  twenty-third 
of  September,  1907,  the  court,  after 
a  hearing  of  all  parties  and  taking 
proofs  in  regard  to  the  issues  in- 
volved, ordered  a  temporary  in- 
junction to  issue  against  the  railway 
company,  restraining  it,  pending  the 
final  hearing  of  the  cause,  from  put- 
ting into  effect  the  tariffs,  rates  or 
charges  set  forth  in  the  act  approved 
April  18,  1907.  The  court  also  en- 
joined the  defendant  Young,  as  At- 
torney General  of  the  State  of  Minne- 
sota, pending  the  final  hearing  of  the 
cause,  from  taking  or  instituting  any 
action  or  proceeding  to  enforce  the 
penalties  and  remedies  specified  in 
the  act  above  mentioned,  or  to 
compel  obedience  to  that  act,  or 
compliance  therewith,  or  any  part 
thereof. 

"  As  the  court  refused  to  grant  any 
preliminary  injunction  restraining 
the  enforcement  of  the  rates  fixed 
by  the  Railroad  and  Warehouse  Com- 
mission, or  the  passenger  rates  under 
the  act  of  April  I,  L907,  because  the 
same  had  been  accepted  by  the  rail- 
roads and  were  in  operation,  the  court 

705 


§  416 


REGULATION  AND  CONTROL  CONTINUED — 


stated  that  in  omitting  the  granting 
of  such  preliminary  injunction  the 
necessity  was  obviated  upon  that 
hearing  of  determining  whether  the 
rates  fixed  by  the  Commission,  or  the 
passenger  rates  together  or  singly, 
were  confiscatory  and  did  not  afford 
reasonable  compensation  for  the 
service  rendered  and  a  proper  allow- 
ance for  the  property  employed,  and 
for  those  reasons  that  question  had 
not  been  considered,  but  inasmuch  as 
the  rates  fixed  by  the  act  of  April  18, 
1907,  had  not  gone  into  force,  the 
court  observed: '  It  seems  to  me,  upon 
this  evidence  of  the  conditions  before 
either  of  those  new  rates  were  put 
into  effect  (that  is,  the  order  of  the 
Commission  of  September,  1906,  or 
the  act  of  April  4,  1907),  and  the  re- 
ductions made  by  those  rates,  that  if 
there  is  added  the  reduction  which  is 
attempted  to  be  made  by  the  com- 
modity act  (April  18,  1907)  it  will  re- 
duce the  compensation  received  by 
the  companies  below  what  would  be  a 
fair  compensation  for  the  services 
performed,  including  an  adequate 
return  upon  the  property  invested. 
And  I  think,  on  the.  whole,  that  a 
preliminary  injunction  should  issue, 
in  respect  to  the  rates  fixed  by  chap- 
ter 232  (act  of  April  18),  talked  of  as 
the  commodity  rates,  and  that  there 
should  be  no  preliminary  injunction 
as  to  the  other  rates,  although  the 
matter  as  to  whether  they  are  com- 
pensatory or  not  is  a  matter  which  may 
be  determined  in  the  final  determination 
of  the  action.' 

"The  day  after  the  granting  of  this 
preliminary  injunction  the  Attorney 
General,  in  violation  of  such  injunc- 
tion, filed  a  petition  for  an  alternative 
writ  of  mandamus  in  one  of  the  courts 
of  the  State,  and  obtained  an  order 
from  that  court,  September  24,  1907, 
directing  the  alternative  writ  to  issue 

70G 


as  prayed  for  in  the  petition.  The 
writ  was  thereafter  issued  and  served 
upon  the  Northern  Pacific  Railway 
Company,  commanding  the  com- 
pany, immediately  after  its  receipt, 
'to  adopt  and  publish  and  keep  for 
public  inspection,  as  provided  by 
law,  as  the  rates  and  charges  to  be 
made,  demanded  and  maintained  by 
you  for  the  transportation  of  freight 
between  stations  in  the  State  of 
Minnesota  of  the  kind,  character  and 
class  named  and  specified  in  chap- 
ter 232  of  the  Session  Laws  of  the 
State  of  Minnesota  for  the  year  1907, 
rates  and  charges  which  do  not  ex- 
ceed those  declared  to  be  just  and 
reasonable  in  and  by  the  terms  and 
provisions  of  said  chapter  232.  *  *  * ' 

"Upon  an  affidavit  showing  these 
facts  the  United  States  Circuit  Court 
ordered  Mr.  Young  to  show  cause 
why  he  should  not  be  punished  as  for 
a  contempt  for  his  misconduct  in 
violating  the  temporary  injunction 
issued  by  that  court  in  the  case 
therein  pending. 

"  Upon  the  return  of  this  order  the 
Attorney  General  filed  his  answer,  in 
which  he  set  up  the  same  objections 
which  he  had  made  to  the  jurisdiction 
of  the  court  in  his  motion  to  dismiss 
the  bill,  and  in  his  demurrer;  he  dis- 
claimed any  intention  to  treat  the 
court  with  disrespect  in  the  com- 
mencement of  the  proceedings  re- 
ferred to,  but  believing  that  the  de- 
cision of  the  court  in  the  action, 
holding  that  it  had  jurisdiction  to 
enjoin  him  as  Attorney  General 
from  performing  his  discretionary 
official  duties,  was  in  conflict  with  the 
Eleventh  Amendment  of  the  Consti- 
tution of  the  United  States,  as  the 
same  has  been  interpreted  and  ap- 
plied by  the  United  States  Supreme 
Court,  he  believed  it  to  be  his  duty 
as  such  Attorney  General  to  com- 


RATES    AND    CHARGES 


§  416 


mence  the  mandamus  proceedings 
for  and  in  behalf  of  the  State,  and  it 
was  in  this  belief  that  the  proceed- 
ings were  commenced  solely  for  the 
purpose  of  enforcing  the  law  of  the 
State  of  Minnesota.  The  order  ad- 
judging him  in  contempt  was  then 
made." 

Mr.  Justice  Peckham,  after  making 
the  foregoing  statement,  delivered 
the 

OPINION    OF    THE    COURT 

"We  recognize  and  appreciate  to 
the  fullest  extent  the  very  great  im- 
portance of  this  case,  not  only  to  the 
parties  now  before  the  court,  but  also 
to  the  great  mass  of  the  citizens  of 
this  country,  all  of  whom  are  inter- 
ested in  the  practical  working  of  the 
courts  of  justice  throughout  the  land, 
both  Federal  and  state,  and  in  the 
proper  exercise  of  the  jurisdiction  of 
the  Federal  courts,  as  limited  and 
controlled  by  the  Federal  Constitu- 
tion and  the  laws  of  Congress. 

"That  there  has  been  room  for 
difference  of  opinion  with  regard  to 
such  limitations  the  reported  cases  in 
this  court  bear  conclusive  testimony. 
It  cannot  be  stated  that  the  case  be- 
fore us  is  entirely  free  from  any  possi- 
ble doubt  nor  that  intelligent  men 
may  not  differ  as  to  the  correct  an- 
swer to  the  question  we  are  called 
upon  to  decide. 

"The  question  of  jurisdiction, 
whether  of  the  Circuit  Court  or  of 
this  court,  is  frequently  a  delicate 
matter  to  deal  with,  and  it  is  es- 
pecially so  in  this  case,  where  the 
material  and  most  important  objec- 
tion to  the  jurisdiction  of  the  Circuit 
Court  is  the  assertion  that  the  suit  is 
in  effect  against  one  of  the  Stafa  ol 
the  Union.  It  is  a  quest  ion,  however, 
which  we  are  called  upon,  and  which 
it  is  our  duty,  to  decide.    Under  these 


circumstances,  the  language  of  Chief 
Justice  Marshall  in  Cohens  v.  Vir- 
ginia, 6  Wheat.  (19  U.  S.)  264,  404, 
5  L.  ed.  257,  is  most  apposite.  In 
that  case  he  said: 

'  '  It  is  most  true  that  this  court 
will  not  take  jurisdiction  if  it  should 
not;  but  it  is  equally  true  that  it  must 
take  jurisdiction  if  it  should.  The 
judiciary  cannot,  as  the  legislature 
may,  avoid  a  measure  because  it  ap- 
proaches the  confines  of  the  Constitu- 
tion. We  cannot  pass  it  by  because 
it  is  doubtful.  With  whatever 
doubts,  with  whatever  difficulties,  a 
case  may  be  attended,  we  must  de- 
cide it,  if  it  be  brought  before  us. 
We  have  no  more  right  to  decline 
the  exercise  of  jurisdiction  which  is 
given,  than  to  usurp  that  which  is  not 
given.  The  one  or  the  other  would  be 
treason  to  the  Constitution.  Ques- 
tions may  occur  which  we  would 
gladly  avoid,  but  we  cannot  avoid 
them.  All  we  can  do  is  to  exercise 
our  best  judgment,  and  conscien- 
tiously perform  our  duty.' 

"Coming  to  a  consideration  of  the 
case,  we  find  that  the  complainants 
in  the  suit  commenced  in  the  Cir- 
cuit Court  were  stockholders  in  the 
Northern  Pacific  Railway  Company, 
and  the  reason  for  commencing  it  and 
making  the  railroad  company  one  of 
the  parties  defendant  is  sufficiently 
set  forth  in  the  bill.  Davis,  etc.,  Co. 
v.  Los  Angeles,  189  U.  S.  207,  220, 
47  L.  ed.  778,  23  Sup.  Ct.  498; 
Equity  Rule  94,  Supreme  Court. 

"It  is  primarily  asserted  on  the 
part  of  the  petitioner  that  jurisdic- 
tion did  not  exist  in  the  Circuit  Court 
because  there  was  not  the  requisite 
diversity  of  citizenship,  and  there 
w;\s  no  question  arising  under  the 
Constitution  or  laws  of  the  United 
Stairs  to  otherwise  «ive  jurisdiction 
to  thai  court.    There  is  no  claim  made 

707 


§  416 


REGULATION  AND  CONTROL  CONTINUED- 


here  of  jurisdiction  on  the  ground 
of  diversity  of  citizenship,  and  the 
claim,  if  made,  would  be  unfounded 
in  fact.  If  no  other  ground  exists, 
then  the  order  of  the  Circuit  Court, 
assuming  to  punish  petitioner  for 
contempt,  was  an  unlawful  order, 
"made  by  a  court  without  jurisdiction. 
In  such  case  this  court,  upon  proper 
application,  will  discharge  the  person 
from  imprisonment.  Ex  parte  Yar- 
brough,  110  U.  S.  651,  4  Sup.  Ct.  152, 
28  L.  ed.  274;  Ex  parte  Fisk,  113 
U.  S.  713,  28  L.  ed.  1117,  5  Sup.  Ct. 
724;  In  re  Ayers,  123  U.  S.  443,  485, 
31  L.  ed.  216,  8  Sup.  Ct.  164.  But  an 
examination  of  the  record  before  us 
shows  that  there  are  Federal  ques- 
tions in  this  case. 

"It  is  insisted  by  the  petitioner 
that  there  is  no  Federal  ques- 
tion presented  under  the  Fourteenth 
Amendment,  because  there  is  no  dis- 
pute as  to  the  meaning  of  the  Con- 
stitution, where  it  provides  that  no 
State  shall  deprive  any  person  of  life, 
liberty  or  property  without  due  proc- 
ess of  law;  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  pro- 
tection of  the  laws,  and  whatever 
dispute  there  may  be  in  this  case  is 
one  of  fact  simply,  whether  the 
freight  or  passenger  rates  as  fixed  by 
the  legislature  or  by  the  railroad  com- 
mission are  so  low  as  to  be  con- 
fiscatory, and  that  is  not  a  Federal 
question. 

"Jurisdiction  is  given  to  the  Cir- 
cuit Court  in  suits  involving  the 
requisite  amount,  arising  under  the 
Constitution  or  laws  of  the  United 
States  (1  U.  S.  Comp.  Stat.  p.  508), 
and  the  question  really  to  be  deter- 
mined under  this  objection  is  whether 
the  acts  of  the  legislature  and  the 
orders  of  the  railroad  commission,  if 
enforced,  would  take  property  with- 
out due  process  of  law,  and  although 

708 


that  question  might  incidentally  in- 
volve a  question  of  fact,  its  solution 
nevertheless  is  one  which  raises  a 
P^ederal  question.  See  Hastings  v. 
Ames  (C.  C.  A.  8th  Circuit),  68  Fed. 
Rep.  726.  The  sufficiency  of  rates 
with  reference  to  the  Federal  Consti- 
tution is  a  judicial  question,  and  one 
over  which  Federal  courts  have  juris- 
diction by  reason  of  its  Federal 
nature.  Chicago,  etc.,  R.  R.  Co.  v. 
Minnesota,  134  U.  S.  418,  33  L.  ed. 
970,  10  Sup.  Ct.  462,  702;  Reagan  v. 
Farmers',  etc.,  Co.,  154  U.  S.  369, 
399,  38  L.  ed.  1014,  14  Sup.  Ct.  1047; 
St.  Louis,  etc.,  Co.  v.  Gill,  156  U.  S. 
649,  39  L.  ed.  567;  Covington,  etc., 
Turnpike  Road  Company  v.  Sand- 
ford,  164  U.  S.  578,  41  L.  ed.  560,  17 
Sup.  Ct.  198;  Smyth  v.  Ames,  169 
U.  S.  466,  522;  Chicago,  etc.,  Rail- 
way Co.  v.  Tompkins,  176  U.  S. 
167,  172,  44  L.  ed.  417,  20  Sup.  Ct. 
336. 

"Another  Federal  question  is  the 
alleged  unconstitutionality  of  these 
acts  because  of  the  enormous  pen- 
alties denounced  for  their  violation, 
which  prevent  the  railway  company, 
as  alleged,  or  any  of  its  servants  or 
employes,  from  resorting  to  the 
courts  for  the  purpose  of  determining 
the  validity  of  such  acts.  The  con- 
tention is  urged  by  the  complainants 
in  the  suit  that  the  company  is  denied 
the  equal  protection  of  the  laws  and 
its  property  is  liable  to  be  taken  with- 
out due  process  of  law,  because  it 
is  only  allowed  a  hearing  upon  the 
claim  of  the  unconstitutionality  of 
the  acts  and  orders  in  question,  at  the 
risk,  if  mistaken,  of  being  subjected 
to  such  enormous  penalties,  resulting 
in  the  possible  confiscation  of  its 
whole  property,  that  rather  than  take 
such  risks  the  company  would  obey 
the  laws,  although  such  obedience 
might  also  result  in  the  end  (though 


RATES    AND    CHARGES 


§  416 


by  a  slower  process)  in  such  confisca- 
tion. 

"Still  another  Federal  question  is 
urged,  growing  out  of  the  assertion 
that  the  laws  are,  by  their  necessary 
effect,  an  interference  with  and  a 
regulation  of  interstate  commerce, 
the  grounds  for  which  assertion  it  is 
not  now  necessary  to  enlarge  upon. 
The  question  is  not,  at  any  rate, 
frivolous. 

"We  conclude  that  the  Circuit 
Court  had  jurisdiction  in  the  case 
before  it,  because  it  involved  the  de- 
cision of  Federal  questions  arising 
under  the  Constitution  of  the  United 
States. 

"Coming  to  the  inquiry  regarding 
the  alleged  invalidity  of  these  acts,  we 
talqp  up  the  contention  that  they  are 
invalid  on  their  face  on  account  of  the 
penalties.  For  disobedience  to  the 
freight  act  the  officers,  directors, 
agents  and  employes  of  the  company 
are  made  guilty  of  a  misdemeanor, 
and  upon  conviction  each  may  be 
punished  by  imprisonment  in  the 
county  jail  for  a  period  not  exceeding 
ninety  days.  Each  violation  would 
be  a  separate  offense,  and,  therefore, 
might  result  in  imprisonment  of  the 
various  agents  of  the  company  who 
would  dare  disobey  for  a  term  of 
ninety  days  each  for  each  offense. 
Disobedience  to  the  passenger  rate 
act  renders  the  party  guilty  of  a 
felony  and  subject  to  a  fine  not  ex- 
ceeding five  thousand  dollars  or  im- 
prisonment in  the  state  prison  for  a 
period  not  exceeding  five  years,  or 
both  fine  and  imprisonment.  The 
sale  of  each  ticket  above  the  price 
permitted  by  the  act  would  be  a  vio- 
lation thereof.  It  would  be  difficult, 
if  not  impossible,  for  the  company  to 
obtain  officers,  agents  or  employes 
willing  to  carry  on  its  affairs  except 
in  obedience  to  the  act  and  orders  in 


question.    The  company  itself  would 
also,  in  case  of  disobedience,  be  liable 
to  the  immense  fines  provided  for  in 
violating  orders  of  the  Commission. 
The  company,  in  order  to  test  the 
validity  of  the  acts,  must  find  some 
agent  or  employe  to  disobey  them  at 
the  risk  stated.    The  necessary  effect 
and  result  of  such  legislation  must  be 
to  preclude  a  resort  to  the  courts 
(either  state  or  Federal)  for  the  pur- 
pose  of    testing    its   validity.     The 
officers  and  employes  could  not  be 
expected  to  disobey  any  of  the  provi- 
sions of  the  acts  or  orders  at  the  risk 
of  such  fines  and  penalties  being  im- 
posed upon  them,  in  case  the  court 
should  decide  that  the  law  was  valid. 
The  result  would  be  a  denial  of  any 
hearing  to  the  company.  .  The  ob- 
servations  upon   a   similar   question 
made  by  Mr.  Justice  Brewer  in  Cot- 
ting   v.    Kansas   City   Stock   Yards 
Company,  183  U.  S.  79,  99,  100,  102, 
are  very  apt.    At  page  100  he  stated: 
'Do  the  laws  secure  to  an  individual 
an  equal  protection  when  he  is  al- 
lowed to  come  into  court  and  make 
his  claim  or  defense  subject  to  the 
condition  that  upon  a  failure  to  make 
good  that  claim  or  defense  the  pen- 
alty  for   such   failure   either   appro- 
priates all  his  property  or  subjects 
him  to  extravagant  and  unreasonable 
loss?'    Again,  at  page  102,  he  says: 
'  It  is  doubtless  true  that  the  State 
may  impose  penalties,   such  as   will 
tend  to  compel  obedience  to  its  man- 
dates by  all,  individuals  or  corpora- 
tions, and  if  extreme  and  cumulative 
penalties    are    imposed    only    after 
there  has  been  a  final  determination 
of  the  validity  of   the  statute,    the 
question    would    be    very    differenl 
from  that  here  presented.    But  when 
the  legislature,  in  an  effort  to  prevent 
any  inquiry  of  the  validity  of  a  par- 
ticular statute,  so  burdens  any  chal- 

709 


§  416 


REGULATION    AND   CONTROL   CONTINUED — 


lenge  thereof  in  the  courts  that  the 
party  affected  is  necessarily  con- 
strained to  submit  rather  than  take 
the  chances  of  the  penalties  imposed, 
then  it  becomes  a  serious  question 
whether  the  party  is  not  deprived  of 
the  equal  protection  of  the  laws.' 
The  question  was  not  decided  in  that 
case,  as  it  went  off  on  another 
ground.  We  have  the  same  question 
now  before  us,  only  the  penalties  are 
more  severe  in  the  way  of  fines,  to 
which  is  added,  in  the  case  of  officers, 
agents  or  employes  of  the  company, 
the  risk  of  imprisonment  for  years  as 
a  common  felon.  See  also  Mercantile 
Trust  Co.  v.  Texas,  etc.,  Ry.  Co.,  51 
Fed.  Rep.  529,  543;  Louisville,  etc., 
R.  R.  Co.  v.  McChord,  103  Fed.  Rep. 
216,  223;  Consolidated  Gas  Co.  v. 
Mayer,  146  Fed.  Rep.  150,  153.  In 
McGahey  v.  Virginia,  135  U.  S.  662, 
694,  it  was  held  that  to  provide  a 
different  remedy  to  enforce  a  con- 
tract, which  is  unreasonable,  and 
which  imposes  conditions  not  exist- 
ing when  the  contract  was  made,  was 
to  offer  no  remedy,  and  when  the 
remedy  is  so  onerous  and  impracti- 
cable as  to  substantially  give  none  at 
all  the  law  is  invalid,  although  what 
is  termed  a  remedy  is  in  fact  given. 
See  also  Bronson  v.  Kinzie,  1  How. 
(42  U.  S.)  311,  317,  11  L.  ed.  143; 
Seibert  v.  Lewis,  122  U.  S.  284,  30 
L.  ed.  1161,  7  Sup.  Ct.  1190.  If  the 
law  be  such  as  to  make  the  decision 
of  the  legislature  or  of  a  commission 
conclusive  as  to  the  sufficiency  of  the 
rates,  this  court  has  held  such  a 
law  to  be  unconstitutional.  Chicago, 
etc.,  Railway  Co.  v.  Minnesota,  134 
U.  S.  41S,  33  L.  ed.  970,  10  Sup.  Ct. 
462,  702.  A  law  which  indirectly 
accomplishes  a  like  result  by  impos- 
ing such  conditions  upon  the  right  to 
appeal  for  judicial  relief  as  works  an 
abandonment  of  the  right  rather  than 

710 


face  the  conditions  upon  which  it  is 
offered  or  may  be  obtained,  is  also 
unconstitutional.  It  may  therefore 
be  said  that  when  the  penalties  for 
disobedience  are  by  fines  so  enormous 
and  imprisonment  so  severe  as  to 
intimidate  the  company  and  its 
officers  from  resorting  to  the  courts 
to  test  the  validity  of  the  legislation, 
the  result  is  the  same  as  if  the  law  in 
terms  prohibited  the  company  from 
seeking  judicial  construction  of  laws 
which  deeply  affect  its  rights. 

"  It  is  urged  that  there  is  no  princi- 
ple upon  which  to  base  the- claim  that 
a  person  is  entitled  to  disobey  a  stat- 
ute at  least  once,  for  the  purpose  of 
testing  its  validity  without  subject- 
ing himself  to  the  penalties  for  dis- 
obedience provided  by  the  statut^  in 
case  it  is  valid.  This  is  not  an  accu- 
rate statement  of  the  case.  Ordi- 
narily a  law  creating  offenses  in  the 
nature  of  misdemeanors  or  felonies 
relates  to  a  subject  over  which  the 
jurisdiction  of  the  legislature  is  com- 
plete in  any  event.  In  the  case,  how- 
ever, of  the  establishment  of  certain 
rates  without  any  hearing,  the  va- 
lidity of  such  rates  necessarily  de- 
pends upon  whether  they  are  high 
enough  to  permit  at  least  some  re- 
turn upon  the  investment  (how 
much  it  is  not  now  necessary  to 
state),  and  an  inquiry  as  to  that  fact 
is  a  proper  subject  of  judicial  in- 
vestigation. If  it  turns  out  that  the 
rates  are  too  low  for  that  purpose, 
then  they  are  illegal.  Now,  to  im- 
pose upon  a  party  interested  the 
burden  of  obtaining  a  judicial  de- 
cision of  such  a  question  (no  prior 
hearing  having  ever  been  given)  only 
upon  the  condition  that  if  unsuccess- 
ful he  must  suffer  imprisonment  and 
pay  fines  as  provided  in  these  acts,  is, 
in  effect,  to  close  up  all  approaches  to 
the   courts,    and   thus   prevent   any 


RATES    AND    CHARGES 


§  416 


hearing  upon  the  question  whether 
the  rates  as  provided  by  the  acts  are 
not  too  low,  and  therefore  invalid. 
The  distinction  is  obvious  between  a 
case  where  the  validity  of  the  act  de- 
pends upon  the  existence  of  a  fact 
which  can  be  determined  only  after 
investigation  of  a  very  complicated 
and  technical  character,  and  the  or- 
dinary case  of  a  statute  upon  a  sub- 
ject requiring  no  such  investigation 
and  over  which  the  jurisdiction  of  the 
legislature  is  complete  in  any  event. 

"We  hold,  therefore,  that  the  pro- 
visions of  the  acts  relating  to  the  en- 
forcement of  the  rates,  either  for 
freight  or  passengers,  by  imposing 
such  enormous  fines  and  possible  im- 
prisonment as  a  result  of  an  unsuc- 
cessful effort  to  test  the  validity  of 
the  laws  themselves,  are  unconstitu- 
tional on  their  face,  without  regard 
to  the  question  of  the  insufficiency  of 
those  rates.  We  also  hold  that  the 
Circuit  Court  had  jurisdiction  under 
the  cases  already  cited  (and  it  was 
therefore  its  duty)  to  inquire  whether 
the  rates  permitted  by  these  acts  or 
orders  were  too  low  and  therefore 
confiscatory,  and  if  so  held,  that  the 
court  then  had  jurisdiction  to  per- 
manently enjoin  the  railroad  com- 
pany from  putting  them  in  force,  and 
that  it  also  had  power,  while  the  in- 
quiry was  pending,  to  grant  a  tem- 
porary injunction  to  the  same  effect. 

"Various  affidavits  were  received 
upon  the  hearing  before  the  court 
prior  to  the  granting  of  the  tempo- 
rary injunction,  and  the  hearing  itself 
was,  as  appears  from  the  opinion,  full 
and  deliberate,  and  the  fact  was 
found  that  the  rates  fixed  by  the 
commodity  act,  under  the  circum- 
stances existing  with  reference  to  the 
passenger  rate  act  and  the  ordei 
the  Commission,  were  not  sufficient 
to  be  compensatory,  and  were  in  fact 


confiscatory,  and  the  act  was  there- 
fore unconstitutional.  The  injunc- 
tion was  thereupon  granted  with 
reference  to  the  enforcement  of  the 
commodity  act. 

"We  have,  therefore,  upon  this 
record  the  case  of  an  unconstitutional 
act  of  the  state  legislature  and  an  in- 
tention by  the  Attorney  General  of 
the  State  to  endeavor  to  enforce  its 
provisions,  to  the  injury  of  the  com- 
pany, in  compelling  it,  at  great  ex- 
pense, to  defend  legal  proceedings  of 
a  complicated  and  unusual  character, 
and  involving  questions  of  vast  im- 
portance to  all  employes  and  officers 
of  the  company,  as  well  as  to  the 
company  itself.  The  question  that 
arises  is  whether  there  is  a  remedy 
that  the  parties  interested  may  re- 
sort to,  by  going  into  a  Federal  court 
of  equity,  in  a  case  involving  a  viola- 
tion of  the  Federal  Constitution,  and 
obtaining  a  judicial  investigation  of 
the  problem,  and  pending  its  solution 
obtain  freedom  from  suits,  civil  or 
criminal,  by  a  temporary  injunction, 
and  if  the  question  be  finally  decided 
favorably  to  the  contention  of  the 
company,  a  permanent  injunction  re- 
straining all  such  actions  or  proceed- 
ings. 

"This  inquiry  necessitates  an  ex- 
amination of  the  most  material  and 
important  objection  made  to  the 
jurisdiction  of  the  Circuit  Court,  the 
objection  being  that  the  suit  is,  in 
effect,  one  against  the  State  of  Minne- 
sota, and  that  the  injunction  issued 
against  the  Attorney  General  illegally 
prohibits  state  action,  either  criminal 
or  civil,  to  enforce  obedience  to  the 
statutes  of  the  State.  This  objection 
is  to  be  considered  with  reference  to 
i  lie  U<  vcnthand  Fourteenth  Amend- 
ments to  the  Federal  Constitution. 
The  Eleventh  Amendment  prohibits 
the  commencement  or  prosecution  of 

711 


§  41(5 


REGULATION  AND  CONTROL  CONTINUED- 


any  suit  against  one  of  the  United 
States  by  citizens  of  another  State  or 
citizens  or  subjects  of  any  foreign 
State.  The  Fourteenth  Amendment 
provides  that  no  State  shall  deprive 
any  person  of  life,  liberty  or  property 
without  due  process  of  law,  nor  shall 
it  deny  to  any  person  within  its  juris- 
diction the  equal  protection  of  the 
laws. 

"The  case  before  the  Circuit  Court 
proceeded  upon  the  theory  that  the 
orders  and  acts  heretofore  mentioned 
would,  if  enforced,  violate  rights  of 
the  complainants  protected  by  the 
latter  Amendment.  We  think  that 
whatever  the  rights  of  complainants 
may  be,  they  are  largely  founded 
upon  that  Amendment,  but  a  deci- 
sion of  this  case  does  not  require  an 
examination  or  decision  of  the  ques- 
tion whether  its  adoption  in  any  way 
altered  or  limited  the  effect  of  the 
earlier  Amendment.  We  may  as- 
sume that  each  exists  in  full  force, 
and  that  we  must  give  to  the  Elev- 
enth Amendment  all  the  effect  it 
naturally  would  have,  without  cut- 
ting it  down  or  rendering  its  mean- 
ing any  more  narrow  than  the 
language,  fairly  interpreted,  would 
warrant.  It  applies  to  a  suit  brought 
against  a  State  by  one  of  its  own  citi- 
zens as  well  as  to  a  suit  brought  by 
a  citizen  of  another  State.  Hans  v. 
Louisiana,  134  U.  S.  1,  33  L.  ed.  842, 
10  Sup.  Ct.  504.  It  was  adopted  after 
the  decision  of  this  court  in  Chisholm 
v.  Georgia  (1793),  2  Dall.  419,  where 
it  was  held  that  a  State  might  be 
sued  by  a  citizen  of  another  State. 
Since  that  time  there  have  been 
many  cases  decided  in  this  court  in- 
volving the  Eleventh  Amendment, 
among  them  being  Osborn  v.  United 
States  Bank  (1824),  9  Wheat.  (22 
U.  S.)  738,  846,  857,  6  L.  ed.  204, 
which  held  that  the  Amendment  ap- 

712 


plied  only  to  those  suits  in  which  the 
State  was  a  party  on  the  record.  In 
the  subsequent  case  of  Governor  of 
Georgia  v.  Madrazo  (1828),  1  Pet. 
(26  U.  S.)  110,  122,  123,  7  L.  ed.  73, 
that  holding  was  somewhat  enlarged, 
and  Chief  Justice  Marshall,  deliver- 
ing the  opinion  of  the  court,  while 
citing  Osborn  v.  United  States  Bank, 
supra,  said  that  where  the  claim  was 
made,  as  in  the  case  then  before  the 
court,  against  the  Governor  of  Geor- 
gia as  governor,  and  the  demand  was 
made  upon  him,  not  personally,  but 
officially  (for  moneys  in  the  treasury 
of  the  State  and  for  slaves  in  posses- 
sion of  the  state  government),  the 
State  might  be  considered  as  the 
party  on  the  record  (page  123),  and 
therefore  the  suit  could  not  be  main- 
tained. 

"Davis  v.  Gray,  16  Wall.  (83 
U.  S.)  203,  220,  21  L.  ed.  447,  re- 
iterates the  rule  of  Osborn  v.  United 
States  Bank,  so  far  as  concerns  the 
right  to  enjoin  a  state  officer  from 
executing  a  state  law  in  conflict  with 
the  Constitution  or  a  statute  of  the 
United  States,  when  such  execution 
will  violate  the  rights  of  the  com- 
plainant. 

"In  Virginia  Coupon  Cases,  114 
U.  S.  270,  296,  29  L.  ed.  185,  5  Sup. 
Ct.  903,  962  (Poindexter  v.  Green- 
how),  it  was  adjudged  that  a  suit 
against  a  tax  collector  who  had  re- 
fused coupons  in  payment  of  taxes, 
and,  under  color  of  a  void  law,  was 
about  to  seize  and  sell  the  property 
of  a  taxpayer  for  non-payment  of  his 
taxes,  was  a  suit  against  him  per- 
sonally as  a  wrongdoer  and  not 
against  the  State. 

"Hagood  v.  Southern,  117  U.  S. 
52,  67,  decided  that  the  bill  was  in 
substance  a  bill  for  the  specific  per- 
formance of  a  contract  between  the 
complainants  and  the  State  of  South 


RATES    AND    CHARGES 


§  416 


Carolina,  and,  although  the  State 
was  not  in  name  made  a  party  de- 
fendant, yet  being  the  actual  party  to 
the  alleged  contract  the  performance 
of  which  was  sought  and  the  only 
party  by  whom  it  could  be  per- 
formed, the  State  was,  in  effect,  a 
party  to  the  suit,  and  it  could  not  be 
maintained  for  that  reason.  The 
things  required  to  be  done  by  the 
actual  defendants  were  the  very 
things  which  when  done  would  con- 
stitute a  performance  of  the  alleged 
contract  by  the  State. 

"The  cases  upon  the  subject  were 
reviewed,  and  it  was  held,  in  In  re 
Ayers,  123  U.  S.  443,  31  L.  ed.  216, 
8  Sup.  Ct.  164,  that  a  bill  in  equity 
brought  against  officers  of  a  State, 
who,  as  individuals,  have  no  personal 
interest  in  the  subject-matter  of  the 
suit,  and  defend  only  as  representing 
the  State,  where  the  relief  prayed 
for,  if  done,  would  constitute  a  per- 
formance by  the  State  of  the  alleged 
contract  of  the  State,  was  a  suit 
against  the  State  (page  504),  follow- 
ing in  this  respect  Hagood  v.  South- 
ern, supra. 

"A  suit  of  such  a  nature  was  sim- 
ply an  attempt  to  make  the  State 
itself,  through  its  officers,  perform  its 
alleged  contract,  by  directing  those 
officers  to  do  acts  which  constituted 
such  performance.  The  State  alone 
had  any  interest  in  the  question,  and 
a  decree  in  favor  of  plaintiff  would 
affect  the  treasury  of  the  State. 

"On  the  other  hand,  United  States 
v.  Lee,  106  U.  S.  l!t(i,  1  Sup.  Ct.  240, 
27  L.  ed.  171,  determined  thai  an  in- 
dividual in  possession  of  real  estate 
under  (lie  Government  of  the  United 
States,  which  claimed  to  be  its 
owner,  was,  nevertheless,  properly 
sued  by  the  plaintiff,  as  owner,  to 
recover  possession,  and  sueh  suit  was 
not  one  against  the  United   States, 


although  the  individual  in  possession 
justified  such  possession  under  its 
authority.  See  also  Tindal  v.  Wesley, 
167  U.  S.  204,  42  L.  ed.  137,  17  Sup. 
Ct.  770,  to  the  same  effect. 

"In  Pennoyer  v.  McConnaughy, 
140  U.  S.  1,  9,  11  Sup.  Ct.  840,  35 
L.  ed.  631,  a  suit  against  land  com- 
missioners of  the  State  was  said  not 
to  be  against  the  State,  although  the 
complainants  sought  to  restrain  the 
defendants,  officials  of  the  State, 
from  violating,  under  an  unconstitu- 
tional act,  the  complainants'  con- 
tract with  the  State,  and  thereby 
working  irreparable  damage  to  the 
property  rights  of  the  complainants. 
Osborn  v.  United  States  Bank,  supra, 
was  cited,  and  it  was  stated:  'But 
the  general  doctrine  of  Osborn  v. 
Bank  of  the  United  States,  that  the 
Circuit  Courts  of  the  United  States 
will  restrain  a  state  officer  from 
executing  an  unconstitutional  stat- 
ute of  the  State,  when  to  execute  it 
would  violate  rights  and  privileges  of 
the  complainant  which  had  been 
guaranteed  by  the  Constitution,  and 
would  work  irreparable  damage  and 
injury  to  him,  has  never  been  de- 
parted from.'  The  same  principle  is 
decided  in  Scott  v.  Donald,  165  U.  S. 
58,  07,  41  L.  ed.  632,  17  Sup.  Ct.  265. 
And  sec  Missouri,  etc.,  v.  Missouri 
Railroad  Commissioners,  183  U.  S. 
r>:\,  46  L.  ed.  78. 

"The  cases  above  cited  do  not 
include  one  exactly  like  this  under 
discussion.  They  serve  to  illustrate 
the  principles  upon  which  many  cases 
have  been  decided.  We  have  not 
cited  all  the  cases,  as  we  have  not 
thought  it  necessary.  But  the  in- 
junction asked  for  in  the  Ayres  Case, 
123  U.  S.  (supra),  was  to  restrain  the 
t ate  officers  from  commencing  suits 
under  the  act  of  May  12,  1887  (al- 
leged to  be  unconstitutional),  in  the 

713 


§416 


REGULATION  AND  CONTROL  CONTINUED — 


name  of  the  State  and  brought  to 
recover  taxes  for  its  use,  on  the  ground 
that  if  such  suits  were  commenced 
they  would  be  a  breach  of  a  contract 
with  the  State.  The  injunction  was 
declared  illegal  because  the  suit  itself 
could  not  be  entertained  as  it  was 
one  against  the  State  to  enforce  its 
alleged  contract.  It  was  said,  how-' 
ever,  that  if  the  court  had  power  to 
entertain  such  a  suit,  it  would  have 
power  to  grant  the  restraining  order 
preventing  the  commencement  of 
suits.  (Page  487.)  It  was  not  stated 
that  the  suit  of  the  injunction  was 
necessarily  confined  to  a  case  of  a 
threatened  direct  trespass  upon  or 
injury  to  property. 

"  Whether  the  commencement  of  a 
suit  could  ever  be  regarded  as  an 
actionable  injury  to  another,  equiva- 
lent in  some  cases  to  a  trespass  such 
as  is  set  forth  in  some  of  the  foregoing 
cases,  has  received  attention  in  the 
rate  cases,  so  called.  Reagan  v. 
Farmers'  Loan  &  Trust  Co.,  154 
U.  S.  362,  14  Sup.  Ct.  1047,  38  L.  ed. 
1014  (a  rate  case),  was  a  suit  against 
the  members  of  a  railroad  commis- 
sion (created  under  an  act  of  the 
State  of  Texas)  and  the  Attorney 
General,  all  of  whom  were  held 
suable,  and  that  such  suit  was  not 
one  against  the  State.  The  Commis- 
sion was  enjoined  from  enforcing  the 
rates  it  had  established  under  the 
act,  and  the  Attorney  General  was 
enjoined  from  instituting  suits  to  re- 
cover penalties  for  failing  to  conform 
to  the  rates  fixed  by  the  Commission 
under  such  act.  It  is  true  the  statute 
in  that  case  creating  the  board  pro- 
vided that  suit  might  be  maintained 
by  any  dissatisfied  railroad  company, 
or  other  party  in  interest,  in  a  court 
of  competent  jurisdiction  in  Travis 
County,  Texas,  against  the  Commis- 
sion as  defendant.     This  court  held 

714 


that  such  language  permitted  a  suit 
in  the  United  States  Circuit  Court  for 
the  Western  District  of  Texas,  which 
embraced  Travis  County,  but  it  also 
held  that,  irrespective  of  that  con- 
sent, the  suit  was  not  in  effect  a  suit 
against  the  State  (although  the  At- 
torney General  was  enjoined),  and 
therefore  not  prohibited  under  the 
Amendment.  It  was  said  in  the  opin- 
ion, which  was  delivered  by  Mr.  Jus- 
tice Brewer,  that  the  suit  could  not  in 
any  fair  sense  be  considered  a  suit 
against  the  State  (page  392),  and  the 
conclusion  of  the  court  was  that  the 
objection  to  the  jurisdiction  of  the 
Circuit  Court  was  not  tenable, 
whether  that  jurisdiction  was  rested 
(page  393),  'upon  the  provisions  of 
the  statute  or  upon  the  general  juris- 
diction of  the  court  existing  by  vir- 
tue of  the  statutes  of  Congress  and 
the  sanction  of  the  Constitution  of 
the  United  States.'  Each  of  these 
grounds  is  effective  and  both  are  of 
equal  force.  Union  Pacific,  etc.,  v. 
Mason  City  Company,  199  U.  S.  160, 
166,  26  Sup.  Ct.  19,  50  L.  ed.  134. 

"  In  Smyth  v.  Ames,  169  U.  S.  466, 
18  Sup.  Ct.'  418,  42  L.  ed.  819  (an- 
other rate  case),  it  was  again  held 
that  a  suit  against  individuals,  for  the 
purpose  of  preventing  them,  as  offi- 
cers of  the  State,  from  enforcing,  by 
the  commencement  of  suits  or  by  in- 
dictment, an  unconstitutional  enact- 
ment to  the  injury  of  the  rights  of  the 
plaintiff,  was  not  a  suit  against  a 
State  within  the  meaning  of  the 
Amendment.  At  page  518,  in  an- 
swer to  the  objection  that  the  suit 
was  really  against  the  State,  it  was 
said:  'It  is  the  settled  doctrine  of 
this  court  that  a  suit  against  individ- 
uals for  the  purpose  of  preventing 
them  as  officers  of  a  State  from  en- 
forcing an  unconstitutional  enact- 
ment to  the  injury  of  the  rights  of  the 


RATES    AND    CHARGES 


§  416 


plaintiff,  is  not  a  suit  against  the 
State  within  the  meaning  of  .that 
Amendment.'  The  suit  was  to  en- 
join the  enforcement  of  a  statute  of 
Nebraska  because  it  was  alleged  to  be 
unconstitutional,  on  account  of  the 
rates  being  too  low  to  afford  some 
compensation  to  the  company,  and 
contrary,  therefore,  to  the  Fourteenth 
Amendment. 

"  There  was  no  special  provision  in 
the  statute  as  to  rates,  making  it  the 
duty  of  the  Attorney  General  to  en- 
force it,  but  under  his  general  powers 
he  had  authority  to  ask  for  a  manda- 
mus to  enforce  such  or  any  other  law. 
State  of  Nebraska  ex  rel.,  etc.,  v. 
The  Fremont,  etc.,  Railroad  Co.,  22 
Nebraska,  313. 

"The  final  decree  enjoined  the  At- 
torney General  from  bringing  any 
suit  (page  477)  by  way  of  injunction, 
mandamus,  civil  action  or  indict- 
ment, for  the  purpose  of  enforcing  the 
provisions  of  the  act.  The  fifth  sec- 
tion of  the  act  provided  that  an  ac- 
tion might  be  brought  by  a  railroad 
company  in  the  Supreme  Court  of  the 
State  of  Nebraska;  but  this  court 
did  not  base  its  decision  on  that  sec- 
tion when  it  held  that  a  suit  of  the 
nature  of  that  before  it  was  not  a  suit 
against  a  State,  although  brought 
against  individual  state  officers  for 
the  purpose  of  enjoining  them  from 
enforcing,  either  by  civil  proceeding 
or  indictment,  an  unconstitutional 
enactment  to  the  injury  of  the  plain- 
tiff's right.     (Page  518.) 

"This  decision  was  reaffirmed  in 
Prout  v.  Starr,  188  U.  S.  537,  542, 
47  L.  ed.  584,  23  Sup.  Ct.  398. 

"Attention  is  also  directed  to  the 
case  of  Missouri,  etc.,  Ry.  Co.  v. 
Missouri  R.  R.,  etc.,  Commissioners, 
183  U.  S.  53,  46  L.  ed.  78.  That  was 
a  suit  brought  in  a  state  court  of 
Missouri    by    the    railroad    commis- 


sioners of  the  State,  who  had  the 
powers  granted  them  by  the  statutes 
set  forth  in  the  report.  Their  suit 
was  against  the  railway  company  to 
compel  it  to  discontinue  certain 
charges  it  was  making  for  crossing 
the  Boonville  bridge  over  the  Mis- 
souri River.  The  defendant  sought 
to  remove  the  case  to  the  Federal 
court,  which  the  plaintiffs  resisted, 
and  the  state  court  refused  to  re- 
move on  the  ground  that  the  real 
plaintiff  was  the  State  of  Missouri, 
and  it  was  proper  to  go  behind  the 
face  of  the  record  to  determine  that 
fact.  In  regular  manner  the  case 
came  here,  and  this  court  held  that 
the  State  was  not  the  real  party 
plaintiff,  and  the  case  had  therefore 
been  properly  removed  from  the 
state  court,  whose  judgment  was 
thereupon  reversed. 

"Applying  the  same  principles  of 
construction  to  the  removal  act 
which  had  been  applied  to  the 
Eleventh  Amendment,  it  was  said 
by  this  court  that  the  State  might  be 
the  real  party  plaintiff  when  the  re- 
lief sought  enures  to  it  alone,  and  in 
whose  favor  the  judgment  or  decree, 
if  for  the  plaintiff,  will  effectively 
operate. 

"Although  the  case  is  one  arising 
under  the  removal  act  and  does  not 
involve  the  Eleventh  Amendment,  it 
nevertheless  illustrates  the  question 
now  before  us,  and  reiterates  the 
doctrine  that  the  State  is  not  a  party 
to  a  suit  simply  because  the  State 
Railroad  Commission  is  such  party. 

"The  doctrine  of  Smyth  v.  Ames 
is  also  referred  to  and  reiterated  in 
Gunter,  Attorney  General,  v.  At- 
lantic, etc.,  Railroad  Co.,  200  U.  S. 
273,  283,  26  Sup.  Ct.  252,  50  L.  ed. 
477.  See  also  McNeill  v.  Southern 
Railway,  202  U.  S.  543-559,  50  L.  ed. 
1142,    26  Sup.   Ct.    722;   Mississippi 

715 


§  416 


REGULATION    AND    CONTROL   CONTINUED — 


Railroad  Commission  v.  Illinois,  etc., 
Railroad  Co.,  203  U.  S.  335,  340,  27 
Sup.  Ct.  90,  51  L.  ed.  209. 

"The  various  authorities  we  have 
referred  to  furnish  ample  justifica- 
tion for  the  assertion  that  indi- 
viduals, who,  as  officers  of  the  State, 
are  clothed  with  some  duty  in  regard 
to  the  enforcement  of  the  laws  of  the 
State,  and  who  threaten  and  are 
about  to  commence  proceedings, 
either  of  a  civil  or  criminal  nature, 
to  enforce  against  parties  affected  an 
unconstitutional  act,  violating  the 
Federal  Constitution,  may  be  en- 
joined by  a  Federal  court  of  equity 
from  such  action. 

"It  is  objected,  however,  that 
Fitts  v.  McGhee,  172  U.  S.  516,  19 
Sup.  Ct.  269,  43  L.  ed.  535,  has 
somewhat  limited  this  principle,  and, 
that  upon  the  authority  of  that 
case,  it  must  be  held  that  the  State 
was  a  party  to  the  suit  in  the  United 
States  Circuit  Court,  and  the  bill 
should  have  been  dismissed  as  to  the 
Attorney  General  on  that  ground. 

"  We  do  not  think  such  contention 
is  well  founded.  The  doctrine  of 
Smyth  v.  Ames  was  neither  over- 
ruled nor  doubted  in  the  Fitts  case. 
In  that  case  the  Alabama  legislature, 
by  the  act  of  1895,  fixed  the  tolls  to 
be  charged  for  crossing  the  bridge. 
The  penalties  for  disobeying  that  act, 
by  demanding  and  receiving  higher 
tolls,  were  to  be  collected  by  the  per- 
sons paying  them.  No  officer  of  the 
State  had  any  official  connection 
with  the  recovery  of  such  penalties. 
The  indictments  mentioned  were 
found  under  another  state  statute,  set 
forth  at  page  520  of  the  report  of  the 
case,  which  provided  a  fine  against 
an  officer  of  a  company  for  taking  any 
greater  rate  of  toll  than  was  au- 
thorized by  its  charter,  or,  if  the 
charter  did  not  specify  the  amount, 

716 


then  the  fine  was  imposed  for  charg- 
ing any  unreasonable  toll,  to  be  de- 
termined by  a  jury.  This  act  was  not 
claimed  to  be  unconstitutional,  and 
the  indictments  found  under  it  were 
not  necessarily  connected  with  the 
alleged  unconstitutional  act  fixing 
the  tolls.  As  no  state  officer  who  was 
made  a  party  bore  any  close  official 
connection  with  the  act  fixing  the 
tolls,  the  making  of  such  officer  a 
party  defendant  was  a  simple  effort 
to  test  the  constitutionality  of  such 
act  in  that  way,  and  there  is  no 
principle  upon  which  it  could  be 
done.  A  state  superintendent  of 
schools  might  as  well  have  been  made 
a  party.  In  the  light  of  this  fact  it 
was  said  in  the  opinion  (page  530): 
"  '  In  the  present  case,  as  we  have 
said,  neither  of  the  state  officers 
named  held  any  special  relation  to 
the  particular  statute  alleged  to  be 
unconstitutional.  They  were  not  ex- 
pressly directed  to  see  to  its  enforce- 
ment. If,  because  they  were  law 
officers  of  the  State,  a  case  could  be 
made  for  the  purpose  of  testing  the 
constitutionality  of  the  statute,  by 
an  injunction  suit  brought  against 
them,  then  the  constitutionality  of 
every  act  passed  by  the  legislature 
could  be  tested  by  a  suit  against  the 
governor  and  the  attorney  general, 
based  upon  the  theory  that  the 
former,  as  the  executive  of  the  State, 
was,  in  a  general  sense,  charged  with 
the  execution  of  all  its  laws,  and  the 
latter,  as  attorney  general,  might 
represent  the  State  in  litigation  in- 
volving the  enforcement  of  its  stat- 
utes. That  would  be  a  very  con- 
venient way  for  obtaining  a  speedy 
judicial  determination  of  questions 
of  constitutional  law  which  may  be 
raised  by  individuals,  but  it  is  a  mode 
which  cannot  be  applied  to  the  States 
of  the  Union  consistently  with  the 


RATES    AND    CHARGES 


§  416 


fundamental  principle  that  they  can- 
not, without  their  assent,  be  brought 
into  any  court  at  the  suit  of  private 
persons.' 

"  Tn  making  an  officer  of  the  State 
a  party  defendant  in  a  suit  to  enjoin 
the  enforcement  of  an  act  alleged  to 
be  unconstitutional  it  is  plain  that 
such  officer  must  have  some  con- 
nection with  the  enforcement  of  the 
act,  or  else  it  is  merely  making  him 
a  party  as  a  representative  of  the 
State,  and  thereby  attempting  to 
make  the  State  a  party. 

"  It  has  not,  however,  been  held 
that  it  was  necessary  that  such  duty 
should  be  declared  in  the  same  act 
which  is  to  be  enforced.  In  some 
cases,  it  is  true,  the  duty  of  enforce- 
ment has  been  so  imposed  (154  U.  S. 
362,  366,  38  L.  ed.  1014,  14  Sup.  Ct. 
1047,  §  19  of  the  act),  but  that  may 
possibly  make  the  duty  more  clear; 
if  it  otherwise  exist  it  is  equally  effi- 
cacious. The  fact  that  the  state 
officer  by  virtue  of  his  office  has  some 
connection  with  the  enforcement  of 
the  act  is  the  important  and  ma- 
terial fact,  and  whether  it  arises  out 
of  the  general  law,  or  is  specially 
created  by  the  act  itself,  is  not  ma- 
terial so  long  as  it  exists. 

"In  the  course  of  the  opinion  in 
the  Fitts  case  the  Reagan  and  Smyth 
cases  were  referred  to  (with  others) 
as  instances  of  state  officers  specially 
charged  with  the  execution  of  a  state 
enactment  alleged  to  be  unconstitu- 
tional, and  who  commit  under  its 
authority  some  specific  wrong  or 
trespass  to  the  injury  of  plaintiff's 
rights.  In  those  cases  the  only 
wrong  or  injury  or  trespass  involved 
he  threatened  commencement 
of  suits  to  enforce  the  statutes  as  to 
and  the  threat  of  such  com- 
mencement was  in  each  case  re- 
garded as  sufficient  to  authorize  the 


issuing  of  an  injunction  to  prevent 
the  same.  The  threat  to  commence 
those  suits  under  such  circumstances 
was  therefore  necessarily  held  to  be 
equivalent  to  any  other  threatened 
wrong  or  injury  to  the  property  of  a 
plaintiff  which  had  theretofore  been 
held  sufficient  to  authorize  the  suit 
against  the  officer.  The  being  spe- 
cially charged  with  the  duty  to  en- 
force the  statute  is  sufficiently  ap- 
parent when  such  duty  exists  under 
the  general  authority  of  some  law, 
even  though  such  authority  is  not  to 
be  found  in  the  particular  act.  It 
might  exist  by  reason  of  the  general 
duties  of  the  officer  to  enforce  it  as  a 
law  of  the  State. 

"  The  officers  in  the  Fitts  case  occu- 
pied the  position  of  having  no  duty 
at  all  with  regard  to  the  act,  and 
could  not  be  properly  made  parties 
to  the  suit  for  the  reason  stated. 

"It  is  also  objected  that  as  the 
statute  does  not  specifically  make  it 
the  duty  of  the  Attorney  General 
(assuming  he  has  that  general  right) 
to  enforce  it,  he  has  under  such  cir- 
cumstances a  full  general  discretion 
whether  to  attempt  its  enforcement 
or  not.  and  the  court  cannot  inter- 
fere to  control  him  as  Attorney  Gen- 
eral in  the  exercise  of  his  discretion. 

"  In  our  view  there  is  no  inter- 
ference with  his  discretion  under  the 
facts  herein.  There  is  no  doubt  that 
the  court  cannot  control  the  exercise 
of  the  discretion  of  an  officer.  It 
can  only  direct  affirmative  action 
where  the  officer  having  some  duty 
to  perform  not  involving  discretion, 
but  merely  ministerial  in  its  nature, 
refuses  or  neglects  to  take  such  ac- 
tion. In  that  case  the  court  can 
direct  the  defendant  to  perform  this 
merely  ministerial  duty.  Board  of 
Liquidation  v.  McComb,  92  U.  S. 
531,  511.  23  L.  ed.  623. 

717 


§  416 


REGULATION    AND   CONTROL  CONTINUED — 


"The  general  discretion  regarding 
the  enforcement  of  the  laws  when 
and  as  he  deems  appropriate  is  not 
interfered  with  by  an  injunction 
which  restrains  the  state  officer  from 
taking  any  steps  towards  the  en- 
forcement of  an  unconstitutional  en- 
actment to  the  injury  of  complainant. 
In  such  case  no  affirmative  action  of 
any  nature  is  directed,  and  the 
officer  is  simply  prohibited  from 
doing  an  act  which  he  had  no  legal 
right  to  do.  An  injunction  to  pre- 
vent him  from  doing  that  which  he 
has  no  legal  right  to  do  is  not  an 
interference  with  the  discretion  of  an 
officer. 

"  It  is  also  argued  that  the  only 
proceeding  which  the  Attorney  Gen- 
eral could  take  to  enforce  the  statute, 
so  far  as  his  office  is  concerned,  was 
one  by  mandamus,  which  would  be 
commenced  by  the  State  in  its  sov- 
ereign and  governmental  character, 
and  that  the  right  to  bring  such  ac- 
tion is  a  necessary  attribute  of  a 
sovereign  government.  It  is  con- 
tended that  the  complainants  do  not 
complain  and  they  care  nothing 
about  any  action  which  Mr.  Young 
might  take  or  bring  as  an  ordinary 
individual,  but  that  he  was  com- 
plained of  as  an  officer,  to  whose 
discretion  is  confided  the  use  of  the 
name  of  the  State  of  Minnesota  so 
far  as  litigation  is  concerned,  and 
that  when  or  how  he  shall  use  it  is  a 
matter  resting  in  his  discretion  and 
cannot  be  controlled  by  any  court. 

"The  answer  to  all  this  is  the  same 
as  made  in  every  case  where  an  offi- 
cial claims  to  be  acting  under  the 
authority  of  the  State.  The  act  to 
be  enforced  is  alleged  to  be  uncon- 
stitutional, and  if  it  be  so,  the  use  of 
the  name  of  the  State  to  enforce  an 
unconstitutional  act  to  the  injury 
of  complainants  is  a  proceeding  with- 

718 


out  the  authority  of  and  one  which 
does  not  affect  the  State  in  its  sov- 
ereign or  governmental  capacity.  It 
is  simply  an  illegal  act  upon  the  part 
of  a  state  official  in  attempting  by 
the  use  of  the  name  of  the  State  to 
enforce  a  legislative  enactment  which 
is  void  because  unconstitutional.  If 
the  act  which  the  state  Attorney 
General  seeks  to  enforce  be  a  viola- 
tion of  the  Federal  Constitution,  the 
officer  in  proceeding  under  such  en- 
actment comes  into  conflict  with  the 
superior  authority  of  that  Constitu- 
tion, and  he  is  in  that  case  stripped 
of  his  official  or  representative  char- 
acter and  is  subjected  in  his  person 
to  the  consequences  of  his  individual 
conduct.  The  State  has  no  power 
to  impart  to  him  any  immunity  from 
responsibility  to  the  supreme  au- 
thority of  the  United  States.  See 
In  re  Ayers,  supra,  page  507.  It 
would  be  an  injury  to  complainant 
to  harass  it  with  a  multiplicity  of 
suits  or  litigation  generally  in  an  en- 
deavor to  enforce  penalties  under  an 
unconstitutional  enactment,  and  to 
prevent  it  ought  to  be  within  the 
jurisdiction  of  a  court  of  equity.  If 
the  question  of  unconstitutionality 
with  reference,  at  least,  to  the  Fed- 
eral Constitution  be  first  raised  in  a 
Federal  court  that  court,  as  we  think 
is  shown  by  the  authorities  cited 
hereafter,  has  the  right  to  decide  it 
to  the  exclusion  of  all  other  courts. 

"The  question  remains  whether 
the  Attorney  General  had,  by  the 
law  of  the  State,  so  far  as  concerns 
these  rate  acts,  any  duty  with  regard 
to  the  enforcement  of  the  same.  By 
his  official  conduct  it  seems  that  he 
regarded  it  as  a  duty  connected  with 
his  office  to  compel  the  company  to 
obey  the  commodity  act,  for  he  com- 
menced proceedings  to  enforce  such 
obedience  immediately  after  the  in- 


RATES   AND   CHARGES  §   416 

junction  issued,  at  the  risk  of  being  than  that  which  is  discretionary  rests 

found  guilty  of  contempt  by  so  doing,  upon  the  Attorney  General  in  that 

"The  duties  of  the  Attorney  Gen-  matter.     The  provision  is  somewhat 

eral,    as    decided    by    the    Supreme  unusual,  but  the  reasons  for  its  in- 

Court  of  the  State  of  Minnesota,  are  sertion  in  that  act  are  not  material, 

created  partly  by  statute  and  exist  and  neither  require  nor  justify  com- 

partly  as  at  common  law.    State  ex  ment  by  this  court, 
rel.    Young,    Attorney    General,    v.        "  It  would  seem  to  be  clear  that  the 

Robinson    (decided    June    7,    1907),  Attorney  General,   under  his  power 

112  N.  W.  Rep.  269.    In  the  above-  existing    at    common    law    and    by 

cited    case,  it    was    held    that    the  virtue  of  these  various  statutes,  had 

Attorney    General    might    institute,  a  general  duty  imposed  upon  him, 

conduct  and  maintain  all  suits  and  which    includes    the    right    and    the 

proceedings  he  might  deem  necessary  power  to  enforce  the  statutes  of  the 

for  the  enforcement  of  the  laws  of  State,  including,  of  course,  the  act  in 

the  State,  the  preservation  of  order  question,    if   it   were   constitutional, 

and  the  protection  of  public  rights,  His   power   by   virtue   of   his   office 

and    that   there   were   no   statutory  sufficiently  connected  him  with  the 

restrictions    in    that    State    limiting  duty  of  enforcement  to  make  him  a 

the  duties  of  the  Attorney  General  proper  party  to  a  suit  of  the  nature 

in  such  case.  of  the  one  now  before  the  United 

"Section  3  of  chapter  227  of  the  States  Circuit  Court. 
General  Laws  of  Minnesota,  1905  "It  is  further  objected  (and  the 
(same  law,  §  58,  Revised  Laws  of  objection  really  forms  part  of  the 
Minnesota,  1905),  imposes  the  duty  contention  that  the  State  cannot  be 
upon  the  Attorney  General  to  cause  sued)  that  a  court  of  equity  has  no 
proceedings  to  be  instituted  against  jurisdiction  to  enjoin  criminal  pro- 
any  corporation  whenever  it  shall  ceedings,  by  indictment  or  otherwise, 
have  offended  against  the  laws  of  the  under  the  state  law.  This,  as  a  gen- 
State.  By  §  1960  of  the  Revised  eral  rule,  is  true.  But  there  are 
Laws  of  1905  it  is  also  provided  that  exceptions.  When  such  indictment 
the  Attorney  General  shall  be  ex  or  proceeding  is  brought  to  enforce 
officio  attorney  for  the  railroad  com-  an  alleged  unconstitutional  statute, 
mission  and  it  is  made  his  duty  to  which  is  the  subject-matter  of  in- 
institute  and  prosecute  all  actions  quiry  in  a  suit  already  pending  in  a 
which  the  Commission  shall  order  Federal  court,  the  latter  court  having 
brought,  and  shall  render  the  com-  first  obtained  jurisdiction  over  the 
missioners  all  counsel  and  advice  subject-matter,  has  the  right,  in  both 
necessary  for  the  proper  performance  civil  and  criminal  cases,  to  hold  and 
of  their  duties.  maintain    such    jurisdiction,    to    the 

"  It  is  said  that  the  Attorney  Gen-  exclusion  of  all  other  courts,   until 

eral  is  only  bound  to  act  when  the  its  duty  is  fully  performed.     Prout 

Commission     orders     action     to     be  v.  Starr,  188  U.  S.  537,  544,  47  L.  ed. 

brought,  and  that  §  5  of  the  com-  584,  23  Sup.  Ct.  398.     But  the  Fed- 

modity    act    (April    18,    1907),    ex-  eral  court  cannot,  of  course,  interfere 

pressly  provides  that  no  duty  shall  in  a  case  where  the  proceedings  were 

rest  upon  the  Commission  to  enforce  already    pending    in    a    state    court, 

the  act,   and  hence  no  duty  other  Taylor  v.  Taintor,  16  Wall.  (83  U.  S.) 

719 


§  416 


REGULATION    AND    CONTROL   CONTINUED — 


366,  370,  21  L.  ed.  2S7;  Harkrader  v. 
Wadley,  172  U.  S.  148,  43  L.  ed.  399, 
19  Sup.  Ct.  119. 

"Where  one  commences  a  criminal 
proceeding  who  is  already  party  to  a 
suit  then  pending  in  a  court  of  eq- 
uity, if  the  criminal  proceedings  are 
brought  to  enforce  the  same  right 
that  is  in  issue  before  that  court,  the 
latter  may  enjoin  such  criminal  pro- 
ceedings. Davis,  etc.,  Co.  v.  Los 
Angeles,  189  U.  S.  207,  47  L.  ed.  778, 
23  Sup.  Ct.  498.  In  Dobbins  v.  Los 
Angeles,  195  U.  S.  223-241,  49  L.  ed. 
169,  25  Sup.  Ct.  18,  it  is  remarked 
by  Mr.  Justice  Day,  in  delivering  the 
opinion  of  the  court,  that  'it  is  well 
settled  that  where  property  rights 
will  be  destroyed,  unlawful  inter- 
ference by  criminal  proceedings  un- 
der a  void  law  or  ordinance  may  be 
reached  and  controlled  by  a  court  of 
equity.'  Smyth  v.  Ames  (supra) 
distinctly  enjoined  the  proceedings 
by  indictment  to  compel  obedience 
to  the  rate  act. 

"These  cases  show  that  a  court  of 
equity  is  not  always  precluded  from 
granting  an  injunction  to  stay  pro- 
ceedings in  criminal  cases,  and  we 
have  no  doubt  the  principle  applies 
in  a  case  such  as  the  present.  In  re 
Sawyer,  124  U.  S.  200,  211,  8  Sup. 
Ct.  482,  31  L.  ed.  402,  is  not  to  the 
contrary.  That  case  holds  that  in 
general  a  court  of  equity  has  no  juris- 
diction of  a  bill  to  stay  criminal  pro- 
ceedings, but  it  expressly  states  an 
exception,  '  unless  they  are  instituted 
by  a  party  to  the  suit  already  pend- 
ing before  it  and  to  try  the  same  right 
that  is  in  issue  there.'  Various  au- 
thorities are  cited  to  sustain  the 
exception.  The  criminal  proceedings 
here  that  could  be  commenced  by 
the  state  authorities  would  be  under 
the  statutes  relating  to  passenger  or 
freight  rates,  and  their  validity  is  the 

720 


very  question  involved  in  the  suit  in 
the  United  States  Circuit  Court.  The 
right  to  restrain  proceedings  by  man- 
damus is  based  upon  the  same  foun- 
dation and  governed  by  the  same 
principles. 

"  It  is  proper  to  add  that  the  right 
to  enjoin  an  individual,  even  though 
a  state  official,  from  commencing 
suits  under  circumstances  already 
stated,  does  not  include  the  power  to 
restrain  a  court  from  acting  in  any 
case  brought  before  it,  either  of  a  civil 
or  criminal  nature,  nor  does  it  include 
power  to  prevent  any  investigation  or 
action  by  a  grand  jury.  The  latter 
body  is  part  of  the  machinery  of 
a  criminal  court,  and  an  injunction 
against  a  state  court  would  be  a  viola- 
tion of  the  whole  scheme  of  our  Gov- 
ernment. If  an  injunction  against  an 
individual  is  disobeyed,  and  he  com- 
mences proceedings  before  a  grand 
jury  or  in  a  court,  such  disobedience 
is  personal  only,  and  the  court  or  jury 
can  proceed  without  incurring  any 
penalty  on  that  account. 

"  The  difference  between  the  power 
to  enjoin  an  individual  from  doing 
certain  things,  and  the  power  to  en- 
join courts  from  proceeding  in  their 
own  way  to  exercise  jurisdiction  is 
plain,  and  no  power  to  do  the  latter 
exists  because  of  a  power  to  do  the 
former. 

"  It  is  further  objected  that  there 
is  a  plain  and  adequate  remedy  at 
law  open  to  the  complainants  and 
that  a  court  of  equity,  therefore,  has 
no  jurisdiction  in  such  case.  It  has 
been  suggested  that  the  proper  way 
to  test  the  constitutionality  of  the  act 
is  to  disobey  it,  at  least  once,  after 
which  the  company  might  obey  the 
act  pending  subsequent  proceedings 
to  test  its  validity.  But  in  the  event 
of  a  single  violation  the  prosecutor 
might  not  avail  himself  of  the  op- 


RATES   AND   CHARGES 


§  416 


portunity  to  make  the  test,  as  obedi- 
ence to  the  law  was  thereafter  contin- 
ued, and  he  might  think  it  unneces- 
sary to  start  an  inquiry.  If,  however, 
he  should  do  so  while  the  company 
was  thereafter  obeying  the  law,  sev- 
eral years  might  elapse  before  there 
was  a  final  determination  of  the 
question,  and  if  it  should  be  deter- 
mined that  the  law  was  invalid  the 
property  of  the  company  would  have 
been  taken  during  that  time  without 
due  process  of  law,  and  there  would 
be  no  possibility  of  its  recovery. 

"Another  obstacle  to  making  the 
test  on  the  part  of  the  company 
might  be  to  find  an  agent  or  employe 
who  would  disobey  the  law,  with  a 
possible  fine  and  imprisonment  star- 
ing him  in  the  face  if  the  act  should 
be  held  valid.  Take  the  passenger 
rate  act,  for  instance:  A  sale  of  a 
single  ticket  above  the  price  men- 
tioned in  that  act  might  subject  the 
ticket  agent  to  a  charge  of  felony,  and 
upon  conviction  to  a  fine  of  five 
thousand  dollars  and  imprisonment 
for  five  years.  It  is  true  the  company 
might  pay  the  fine,  but  the  imprison- 
ment the  agent  would  have  to  suffer 
personally.  It  would  not  be  wonder- 
ful, if  under  such  circumstances, 
there  would  not  be  a  crowd  of  agents 
offering  to  disobey  the  law.  The 
wonder  would  be  that  a  single  agent 
should  be  found  ready  to  take  the 
risk. 

"  If,  however,  one  should  be  found 
and  the  prosecutor  should  elect  to 
proceed  against  him,  the  defense  that 
the  act  was  invalid,  because  the  rates 
established  by  it  were  too  low,  would 
require  a  long  and  difficult  examina- 
tion of  quite  complicated  facts  upon 
which  the  validity  of  the  act  de- 
pended. Such  investigation  it  would 
be  almost  impossible  to  make  before  a 
jury,  as  such  body  could  not  intelli- 

46 


gently  pass  upon  the  matter.  Ques- 
tions of  the  cost  of  transportation  of 
passengers  and  freight,  the  net  earn- 
ings of  the  road,  the  separation  of  the 
cost  and  earnings,  within  the  State 
from  those  arising  beyond  its  bound- 
aries, all  depending  upon  the  testi- 
mony of  experts  and  the  examination 
of  figures  relating  to  these  subjects, 
as  well,  possibly,  as  the  expenses  at- 
tending the  building  and  proper  cost 
of  the  road,  would  necessarily  form 
the  chief  matter  of  inquiry,  and  in- 
telligent answers  could  only  be  given 
after  a  careful  and  prolonged  ex- 
amination of  the  whole  evidence,  and 
the  making  of  calculations  based 
thereon.  All  material  evidence  hav- 
ing been  taken  upon  these  issues,  it 
has  been  held  that  it  ought  to  be  re- 
ferred to  the  most  competent  and 
reliable  master  to  make  all  needed 
computations  and  to  find  therefrom 
the  necessary  facts  upon  which  a 
judgment  might  be  rendered  that 
might  be  reviewed  by  this  court. 
Chicago,  etc.,  Railway  Co.  v.  Tomp- 
kins, 176  U.  S.  167,  44  L.  ed.  417,  20 
Sup.  Ct.  336.  From  all  these  consid- 
erations it  is  plain  that  this  is  not  a 
proper  suit  for  investigation  by  a 
jury.  Suits  for  penalties,  or  indict- 
ment or  other  criminal  proceedings 
for  a  violation  of  the  act,  would 
therefore  furnish  no  reasonable  or 
adequate  opportunity  for  the  pres- 
entation of  a  defense  founded  upon 
the  assertion  that  the  rates  were 
too  low  and  therefore  the  act  in- 
valid. 

"  We  do  not  say  the  company  could 
not  interpose  this  defense  in  an  action 
to  recover  penalties  or  upon  the  trial 
of  an  indictment  (St.  Louis,  etc.,  Ry. 
Co.  v.  Gill,  156  U.  S.  649,  15  Sup.  Ct. 
484,  39  L.  ed.  567),  but  the  facility  of 
proving  it  in  either  case  falls  so  far 
below  that  which  would  obtain  in  a 

721 


§  416 


REGULATION  AND  CONTROL  CONTINUED- 


court  of  equity  that  comparison  is 
scarcely  possible. 

"To  await  proceedings  against  the 
company  in  a  state  court  grounded 
upon  a  disobedience  of  the  act,  and 
then,  if  necessary,  obtain  a  review  in 
this  court  by  writ  of  error  to  the  high- 
est state  court,  would  place  the  com- 
pany in  peril  of  large  loss  and  its 
agents  in  great  risk  of  fines  and  im- 
prisonment if  it  should  be  finally  de- 
termined that  the  act  was  valid. 
This  risk  the  company  ought  not  to 
be  required  to  take.  Over  eleven 
thousand  millions  of  dollars,  it  is  esti- 
mated, are  invested  in  railroad  prop- 
erty, owned  by  many  thousands  of 
people  who  are  scattered  over  the 
whole  country  from  ocean  to  ocean, 
and  they  are  entitled  to  equal  protec- 
tion from  the  laws  and  from  the 
courts,  with  the  owners  of  all  other 
kinds  of  property,  no  more,  no  less. 
The  courts  having  jurisdiction,  Fed- 
eral or  state,  should  at  all  times  be 
open  to  them  as  well  as  to  others,  for 
the  purpose  of  protecting  their  prop- 
erty and  their  legal  rights. 

"All  the  objections  to  a  remedy  at 
law  as  being  plainly  inadequate  are 
obviated  by  a  suit  in  equity,  making 
all  who  are  directly  interested  parties 
to  the  suit,  and  enjoining  the  enforce- 
ment of  the  act  until  the  decision  of 
the  court  upon  the  legal  question. 

"  An  act  of  the  legislature  fixing 
rates,  either  for  passengers  or  freight, 
is  to  be  regarded  as  ■prima  facie  valid, 
and  the  onus  rests  upon  the  company 
to  prove  its  assertion  to  the  contrary. 
Under  such  circumstances  it  was 
stated  by  Mr.  Justice  Miller,  in  his 
concurring  opinion  in  Chicago,  etc., 
Co.  v.  Minnesota,  134  U.  S.  418,  460, 
33  L.  ed.  970,  10  Sup.  Ct.  462,  702, 
that  the  proper,  if  not  the  only,  mode 
of  judicial  relief  against  the  tariff  of 
rates  established  by  the  legislature 

722 


or  by  its  Commission  is  by  a  bill  in 
chancery,  asserting  its  unreasonable 
character,  and  that  until  the  decree  of 
the  court  in  such  equity  suit  was  ob- 
tained it  was  not  competent  for  each 
individual  having  dealings  with  a 
carrier,  or  for  the  carrier  in  regard  to 
each  individual  who  demands  its 
services,  to  raise  a  contest  in  the 
courts  over  the  questions  which 
ought  to  be  settled  in  this  general  and 
conclusive  manner.  This  remedy  by 
bill  in  equity  is  referred  to  and  ap- 
proved by  Mr.  Justice  Shiras,  in  de- 
livering the  opinion  of  the  court  in 
St.  Louis,  etc.,  Co.  v.  Gill,  156  U.  S. 
649,  659,  666,  15  Sup.  Ct.  484,  39 
L.  ed.  567,  although  that  question 
was  not  then  directly  before  the 
court.  Such  remedy  is  undoubtedly 
the  most  convenient,  the  most  com- 
prehensive and  the  most  orderly  way 
in  which  the  rights  of  all  parties  can 
be  properly,  fairly  and  adequately 
passed  upon.  It  cannot  be  to  the 
real  interest  of  anyone  to  injure  or 
cripple  the  resources  of  the  railroad 
companies  of  the  country,  because 
the  prosperity  of  both  the  railroads 
and  the  country  is  most  intimately 
connected.  The  question  of  suffi- 
ciency of  rates  is  important  and  con- 
trolling, and  being  of  a  judicial  na- 
ture it  ought  to  be  settled  at  the 
earliest  moment  by  some  court,  and 
when  a  Federal  court  first  obtains 
jurisdiction  it  ought,  on  general  prin- 
ciples of  jurisprudence,  to  be  per- 
mitted to  finish  the  inquiry  and  make 
a  conclusive  judgment  to  the  exclu- 
sion of  all  other  courts.  This  is  all 
that  is  claimed,  and  this,  we  think, 
must  be  admitted. 

"Finally  it  is  objected  that  the 
necessary  result  of  upholding  this 
suit  in  the  Circuit  Court  will  be  to 
draw  to  the  lower  Federal  courts  a 
great  flood  of  litigation  of  this  char- 


RATES   AND   CHARGES 


§  416 


acter,  where  one  Federal  judge  would 
have  it  in  his  power  to  enjoin  pro- 
ceedings by  state  officials  to  enforce 
the  legislative  acts  of  the  State,  either 
by  criminal  or  civil  actions.  To  this 
it  may  be  answered,  in  the  first  place, 
that  no  injunction  ought  to  be 
granted  unless  in  a  case  reasonably 
free  from  doubt.  We  think  such  rule 
is,  and  will  be,  followed  by  all  the 
judges  of  the  Federal  courts. 

"And,  again,  it  must  be  remem- 
bered that  jurisdiction  of  this  general 
character  has,  in  fact,  been  exercised 
by  Federal  courts  from  the  time  of 
Osborn  v.  United  States  Bank  up  to 
the  present;  the  only  difference  in 
regard  to  the  case  of  Osborn  and  the 
case  in  hand  being  that  in  this  case 
the    injury    complained    of    is    the 
threatened  commencement  of  suits, 
civil  or  criminal,  to  enforce  the  act, 
instead  of,  as  in  the  Osborn  case,  an 
actual  and  direct  trespass  upon  or  in- 
terference with  tangible  property.    A 
bill  filed  to  prevent  the  commence- 
ment of  suits  to  enforce  an  uncon- 
stitutional   act,    under    the    circum- 
stances already  mentioned,  is  no  new 
invention,  as  we  have  already  seen. 
The    difference    between   an    actual 
and  direct  interference  with  tangible 
property  and  the  enjoining  of  state 
officers  from  enforcing  an  unconstitu- 
tional act,  is  not  of  a  radical  nature, 
and  does  not  extend,  in  truth,  the 
jurisdiction  of  the  courts  over  the 
subject-matter.     In  the  case  of  the 
interference  with  property  the  per- 
son enjoined  is  assuming  to  act  in  his 
capacity  as  an  official  of  the  State, 
and  justification  for  his  interference 
is  claimed  by  reason  of  his  position  as 
a  state  official.    Such  official  cannot 
so  justify  when  acting  under  an  un- 
constitutional enactment  of  the  legis- 
lature.    So,  where  the  state  official, 
instead   of  directly  interfering  with 


tangible  property,  is  about  to  com- 
mence suits,  which  have  for  their  ob- 
ject the  enforcement  of  an  act  which 
violates  the  Federal  Constitution,  to 
the  great  and  irreparable  injury  of 
the  complainants,  he  is  seeking  the 
same  justification  from  the  authority 
of  the  State  as  in  other  cases.  The 
sovereignty  of  the  State  is,  in  reality, 
no  more  involved  in  one  case  than  in 
the  other.  The  State  cannot  in  either 
case  impart  to  the  official  immunity 
from  responsibility  to  the  supreme 
authority  of  the  United  States.  See 
In  re  Ayers,  123  U.  S.  507,  31  L.  ed. 
216,  8  Sup.  Ct.  164. 

"This   supreme   authority,    which 
arises  from  the  specific  provisions  of 
the   Constitution   itself,    is   nowhere 
more  fully  illustrated   than   in   the 
series  of  decisions  under  the  Federal 
habeas   corpus   statute    (§  753,    Rev. 
Stat.),  in  some  of  which  cases  persons 
in  the  custody  of  state  officers  for 
alleged  crimes  against  the  State  have 
been  taken  from  that  custody  and 
discharged    by   a    Federal    court    or 
judge,     because    the    imprisonment 
was  adjudged  to  be  in  violation  of 
the  Federal  Constitution.    The  right 
to  so  discharge  has  not  been  doubted 
by  this  court,  and  it  has  never  been 
supposed  there  was  any  suit  against 
the  State  by  reason  of  serving  the 
writ  upon  one  of  the  officers  of  the 
State  in  whose  custody  the  person 
was  found.    In  some  of  the  cases  the 
writ  has  been  refused  as  matter  of 
discretion,  but  in  others  it  has  been 
granted,  while  the  power  has  been 
fully   recognized   in   all.      Ex   parte 
Royall,  117  U.  S.  241,  29  L.  ed.  868, 
6  Sup.  Ct.  734;  In  re  Loney,  134  U.  S. 
372,  10  Sup.  Ct.  584,  33  L.  ed.  949; 
In  re  Neagle,  135  U.  S.  1,  19  Sup.  Ct. 
335,  43  L.  ed.  591 ;  Baker  v.  Grice,  169 
U.  S.  284,  42  L.  ed.  748,  18  Sup.  Ct. 
323;  Ohio  v.  Thomas,  173  U.  S.  276; 

723 


§  416 


REGULATION  AND  CONTROL  CONTINUED 


Minnesota  v.  Brundage,  180  U.  S. 
499,  502,  45  L.  ed.  639,  21  Sup.  Ct. 
455;  Reid  v.  Jones,  187  U.  S.  153, 
23  Sup.  Ct.  89,  47  L.  ed.  116;  United 
States  v.  Lewis,  200  U.  S.  1,  50  L.  ed. 
343,  26  Sup.  Ct.  229;  In  re  Lincoln, 
202  U.  S.  178,  26  Sup.  Ct.  602,  50 
L.  ed.  984;  Urquhart  v.  Brown,  205 
U.  S.  179,  51  L.  ed.  760,  27  Sup.  Ct. 
459. 

"  It  is  somewhat  difficult  to  appre- 
ciate the  distinction  which,  while  ad- 
mitting that  the  taking  of  such  a 
person  from  the  custody  of  the  State 
by  virtue  of  service  of  the  writ  on  the 
state  officer  in  whose  custody  he  is 


found,  is  not  a  suit  against  the  State, 
and  yet  service  of  a  writ  on  the  At- 
torney General  to  prevent  his  en- 
forcing an  unconstitutional  enact- 
ment of  a  state  legislature  is  a  suit 
against  the  State. 

"There  is  nothing  in  the  case  be- 
fore us  that  ought  properly  to  breed 
hostility  to  the  customary  operation 
of  Federal  courts  of  justice  in  cases  of 
this  character. 

"The  rule  to  show  cause  is  dis- 
charged and  the  petition  for  writs  of 
habeas  corpus  and  certiorari  is  dis- 
missed.    So  ordered." 

Mr.  Justice  Harlan,  dissenting. 


724 


TAXATION    OF    FRANCHISES 


CHAPTER  XXIV. 


TAXATION    OF   FRANCHISES. 


417.  Taxation — Power  of  State — 

Limitations  Thereon — -Con- 
stitutional Law  —  General 
Principles. 

418.  Federal  Franchises — Agencies 

of  the  Federal  Government 
— State  Taxation  of. 

419.  Power  of  States  to  Tax  Corpo- 

rations— Agencies  of  Fed- 
eral Government  —  Inter- 
state Commerce. 

420.  Same    Subject  —  Application 

of  Principles — Illustrative 
Decisions. 

421.  Diversity,     Uniformity     and 

Equality  of  Taxation. 

422.  Uniformity   and   Equality  of 

Taxation  —  Constitutional 
Law — Board  of  Equaliza- 
tion— Illegal  Discrimina- 
tion— Jurisdiction  in  Eq- 
uity. 

423.  To  What  Extent  Franchises 

Taxable — Generally. 

424.  Same  Subject. 

425.  Franchise  Tax— Capital  Stock 

— Meaning  of  Terms — Na- 
ture of  Tax — Construction 
of  Statute. 

426.  State     Taxation  —  Franchise 

Assessments  —  Capital 
Stock — Constitutional  Law 
— Remedy. 

427.  Franchise  Tax— Capital  Stock 

—  Gross  Receipts  —  Addi- 
tional Franchise  —  Inter- 
state Commerce. 

428.  Franchise  Tax— Capital  Stock 

— Who  Liable  —  Generally. 


§  429.  Franchise  Tax— Capital  Stock 
— Who  not  Liable — Gen- 
erally. 

430.  Taxation  of  Intangible  Prop- 

erty of  Interstate  Bridge — 
Constitutional  Law. 

431.  Taxation  of  Ferry  Franchise 

— Legal  Situs  of  Property 
— Constitutional  Law. 

432.  Franchise     Tax  —  Telegraph 

Companies — Constitutional 
Law. 

433.  Franchise  Tax — Tax  on  Gross 

Receipt  s — Street  Rail- 
roads. 

434.  Franchise  Tax — Water  Com- 

panies. 

435.  Franchise     Tax — Gross     Re- 

ceipts —  Dividends  — ■  Gas 
and  Electric  Light  and 
Power  Companies. 

436.  Franchise      Tax  —  Insurance 

Companies. 

437.  Franchise  Tax — Guaranty  or 

Security  Company — Trust 
Company. 

438.  Franchise        Tax  —  Savings 

Banks. 

439.  Franchise       Tax  —  National 

Banks. 

440.  Capital     Stock  — Tangible 

and  Intangible  Property — 
Franchises  —  Situs  of,  for 
Taxation. 

441.  Franchise  Tax — What  Is  In- 

cluded as  Capital  Stock — 
— Exempt    Property. 

442.  Franchise  Tax — What  Is  not 

Included  as  Capital  Stock. 

725 


§  417 


TAXATION    OF    FRANCHISES 


443.  Exemptions — Tax  Upon  State 

Banks  in  Which  United 
States  Securities  are  In- 
cluded. 

444.  Special      Franchises  —  Taxa- 

tion. 

445.  Franchises — Exemption  from 

Tax  on  Capital  Stock. 

446.  Franchise       Tax  —  Capital 

Stock,  etc.  —  Valuation  — 
Basis  of  Computation. 

447.  Franchise       Tax  —  Capital 

Stock,  etc.  —  Valuation  — 
Basis  of  Computation  Con- 
tinued. 

448.  Franchise       Tax  —  Capital 

Stock,  etc.  —  Valuation  — 
Basis  of  Computation  Con- 
tinued. 

449.  Franchise       Tax  —  Capital 

Stock,  etc. — Valuation  — 
Basis  of  Computation — 
Deductions. 

450.  Value  of  Special  Franchise. 

451.  Deduction  from  Special  Fran- 

chise Tax. 

452.  Exemption       or      Immunity 

from  Taxation  —  Whether 
a  Franchise  or  Privilege. 

453.  Power  to  Exempt  from  Tax- 


ation— State,  Municipality, 
and  Board  of  Assessment — 
Local  Taxation. 
§  454.  Duration  and  Extent  of  Ex- 
emption from  Taxation. 

455.  Surrender  of  Power  of  Tax- 

ation —  Presumptions  — 
Exemption  from  Taxation 
— Statutory    Construction. 

456.  Constitutional  Law — Validity 

of  Exemption  from  Taxa- 
tion. 

457.  Obligation  of  Contracts — Ex- 

emption from  Taxation — 
Preliminary  Statement. 

458.  Obligation  of  Contract — Res- 

ervation of  Power  to  Alter, 
Amend  or  Repeal — Ex- 
emption from  Taxation. 

459.  Obligation     of     Contracts  — 

What  Is  a  Contract — Ex- 
emption from  Taxation. 

460.  Obligation     of     Contracts  — ■ 

What  Is  not  a  Contract — 
Exemption  from  Taxation. 

461.  Obligation  of  Contracts — Res- 

ervation of  Power  to  Alter, 
etc. — Exemption  from  Tax- 
ation— Res  adjudicata. 


§  417.  Taxation— Power  of  State— Limitations  Thereon — 
Constitutional  Law— General  Principles. — The  power  to  levy 
and  collect  taxes  is  a  legislative  function  in  this  country  a  and 
cannot  be  exercised  otherwise  than  under  the  authority  of 
the  legislature.2     But  state  governments  have  no  right  to 


1  Meriwether  v.  Garrett,  102  U.  S. 
472,  26  L.  ed.  197;  Heine  v.  Levee 
Commissioners,  19  Wall.  (86  U.  S.) 
655,  22  L.  ed.  223. 

2  Meriwether  v.  Garrett,  102  U.  S. 
472,  26  L.  ed.  197. 

Delegation  of  power  to  tax — Extent 
of.  See  Michigan  Railroad  Tax  Cases 
(C.  C),  138  Fed.  223  (held  not  un- 

726 


lawfully  delegated — average  rate  to 
be  ascertained  by  state  board  of  as- 
sessors), case  affirmed,  Michigan  Cen- 
tral Rd.  Co.  v.  Powers,  201  U.  S. 
245,  50  L.  ed.  744,  26  Sup.  Ct.  459; 
Southern  Ry.  Co.  v.  North  Carolina 
Corp.  Commission  (C.  C),  97  Fed.  513 
(North  Carolina  Corporation  Com- 
mission  no  power  to   appraise  and 


TAXATION    OF   FRANCHISES  §   417 

tax  any  of  the  constitutional  means  employed  by  the  govern- 
ment of  the  Union  to  execute  its  constitutional  powers;  nor 
have  the  States  any  power,  by  taxation  or  otherwise,  to  re- 
tard, impede,  burden,  or  in  any  manner  control  the  opera- 
tions of  the  constitutional  laws  enacted  by  Congress  to  carry 
into  effect  the  powers  vested  in  the  national  government.3 
The  exercise,  however,  of  the  authority  which  every  State  pos- 
sesses to  tax  its  corporations  and  all  their  property,  real  and 
personal,  and  their  franchises,  and  to  graduate  their  tax  upon 
a  corporation  according  to  its  business  or  income,  or  the  value 
of  its  property,  when  this  is  not  done  by  discriminating  against 
rights  held  in  other  States,  and  the  tax  is  not  on  imports  or 
tonnage,  or  transportation  to  other  States,  cannot  be  regarded 
as   conflicting  with  any   constitutional   power  of  Congress.4 

assess  railroad  property);  School  City  propriate  to  that  purpose.     Heine  v. 

of  Marion  v.   Forrest,   168  Ind.   94,  Levee  Commissioners,   19  Wall.    (86 

78  N.  E.  187  (extent  of  delegation  U.  S.)  655,  22  L.  ed.  223. 
of  power  to  municipal  body  or  de-        Nature  of  tax — Not  a  debt  or  con- 

partment    thereof);    People    ex    rel.  tractual  obligation.     State  v.  Chicago 

Metropolitan    St.    Ry.    Co.    v.    Tax  &  N.  W.  Ry.  Co.,  128  Wis.  449,  108 

Commissioners,   174    N.   Y.   417,   67  N.  W.  594. 

N.  E.  67  (special  franchise;  tax  stat-        3  McCulloch  v.  Maryland,  4  Wheat. 

ute    not    unconstitutional     as    con-  (17  U.  S.)  316,  4  L.  ed.  579.     In  this 

ferring  upon  state  officers  the  right  case  it  was  held  that  this  principle 

to  assess  franchises  and  tangible  prop-  did  not  extend  to  a  tax  paid  by  the 

erty    connected    therewith    and    in-  real    property   of   the    Bank   of   the 

eluded  therein  though  formerly  as-  United  States,  in  common  with  the 

sessed  by  a  local  board  of  assessors);  other  real   property  in  a  particular 

Missouri,  K.  &  T.  Ry.  Co.  v.  Shannon  State,  nor  to  a  tax  imposed  on  the 

(Tex.  Civ.  App.,  1906),  97  S.  W.  527,  proprietary  interest  which  the  citi- 

aff'd  100  Tex.  379,  100  S.  W.   138  zens  of  that  State  might  hold  in  that 

(state    tax    board;    statute    making  institution,    in   common   with   other 

Secretary  of  State  and  State  Comp-  property    of    the    same    description 

troller  members  not  invalid  as  vest-  throughout  the   State.      See   in   this 

ing  judicial  power  in  such  officers).  connection   Home   Savings   Bank   v. 

Delegation  to  board  of  equalization.  City  of  Des  Moines,  205  U.  S.  503, 

See  §  182,  herein.  509,  51  L.  ed.  — ,  27  Sup.  Ct.  — . 

The  power  to  levy  and  collect  taxes       As  to  implied  constitutional  limi- 

does  not  belong  to  a  court  of  equity,  tations,   see   Southern    Gum   Co.    v. 

and  can  only  be  enforced  by  a  court  Laylin,  66  Ohio  St.  578,  64  N.  E. 

of  law,  through  the  officers  author-  564. 

ized  by  the  legislature  to  levy  the        *  Delaware  Railroad  Tax,  18  Wall, 

tax,  if  a  writ  of  mandamus  is  ap-  (85  U.  S.)  206,  21  L.  ed.  888. 

727 


§   418  TAXATION    OF    FRANCHISES 

If  a  State  has  not  the  power  to  levy  a  tax  it  will  not  be  sus- 
tained merely  because  another  tax  which  it  might  lawfully 
impose  would  have  the  same  ultimate  incidence.5  The  omis- 
sion of  the  legislature  for  one  year,  or  for  a  series  of  years, 
to  tax  certain  classes  of  property,  otherwise  taxable,  does  not 
destroy  the  power  of  the  State  to  subject  them  to  taxation 
when  it  sees  fit  to  do  so.6  The  fact  that  taxation  increases  the 
expenses  attendant  upon  the  use  or  possession  of  the  thing 
taxed,  of  itself  constitutes  no  objection  to  its  constitution- 
ality.7 

§  418.  Federal  Franchises— Agencies  of  the  Federal  Gov- 
ernment—State Taxation  of. — The  States  may  tax  every 
subject  of  value,  within  the  sovereignty  of  the  State,  belong- 
ing to  the  citizens  as  mere  private  property,  but  the  power 
of  taxation  does  not  extend  to  the  instruments  of  the  Federal 
government,  nor  to  the  constitutional  means  employed  by 
Congress  to  carry  into  execution  the  powers  conferred  in  the 
Federal  Constitution.8  And  although  the  property  of  a  cor- 
poration of  the  United  States  may  be  taxed  by  a  State,  still 
this  cannot  be  done  through  the  company's  franchises,9  for 
franchises  conferred  by  Congress  cannot,  without  its  per- 
mission, be  taxed  by  the  States.  Thus  the  State  Board  of 
Equalization  of  California,  having  included  in  their  assess- 
ment all  the  franchises  of  a  railroad  company,  amongst  which 
were  franchises  conferred  by  the  United  States,  of  constructing 
a  railroad  from  the  Pacific  Ocean  across  the  State  as  well  as 
across  the  Territories  of  the  United  States,  and  of  taking  toll 
thereon,  it  was  held  that  the  assessment  of  these  franchises 
was  repugnant  to  the  Constitution  and  laws  of  the  United 
States  and  the  power  given  to  Congress  to  regulate  commerce 

5  Home  Savings   Bank  v.   City  of        7  Delaware  Railroad  Tax,  18  Wall. 
Des  Moines,  205  U.  S.  503,  504,  51    (85  U.  S.)  206,  21  L.  ed.  888. 

L.  ed.  — ,  27  Sup.  Ct.  — .  8  McCulloch  v.  Maryland,  4  Wheat. 

6  Metropolitan     St.     Ry.     Co.     v.    (17  U.  S.)  316,  4  L.  ed.  579. 

New  York  State  Board  of  Tax  9  Central  Pacific  R.  Co.  v.  Cali- 
Commrs.,  199  U.  S.  1,  50  L.  ed.  65,  fornia,  162  U.  S.  91,  16  Sup.  Ct.  766, 
25  Sup.  Ct.  705.  40  L.  ed.  903.    See  §  129,  herein. 

728 


TAXATION    OF    FRANCHISES  §   418 

among  the  several  States.10  But  the  decision  of  the  Supreme 
Court  of  a  State  that  the  findings  of  the  trial  court  on  the 
question  of  whether  the  franchises  taxed  covered  franchises 
derived  from  the  United  States  was  conclusive,  is  binding 
upon  the  Federal  Supreme  Court.11  In  the  case  of  an  inter- 
state bridge  the  tax  on  the  capital  stock  has  been  held  not  a 
tax  on  franchises  conferred  by  the  Federal  government,  but 
on  those  conferred  by  the  State,  and  as  such  not  open  to  objec- 
tion in  the  Federal  Supreme  Court.  Such  tax  was  also  held 
in  the  same  case  not  to  be  a  tax  on  interstate  commerce.12 
The  exemption  of  agencies  of  the  Federal  government  from 
taxation  by  the  States  is  dependent,  not  upon  the  nature  of 
the  agents,  nor  upon  the  mode  of  their  constitution,  nor  upon 
the  fact  that  they  are  agents,  but  upon  the  effect  of  the  tax; 
that  is,  upon  the  question  whether  the  tax  does  in  truth  de- 
prive them  of  power  to  serve  the  government  as  they  were 
intended  to  serve  it,  or  hinder  the  efficient  exercise  of  their 
power.  A  tax  upon  their  property  merely,  having  no  such 
necessary  effect,  and  leaving  them  free  to  discharge  the  duties 
they  have  undertaken  to  perform,  may  be  rightfully  laid  by 
the  States.  A  tax  upon  their  operations  being  a  direct  ob- 
struction to  the  exercise  of  Federal  powers  may  not  be.  This 
doctrine  was  applied  to  the  case  of  a  tax  by  a  State  upon  the 
real  and  personal  property,  as  distinguished  from  its  fran- 
chises, of  the  Union  Pacific  Railroad  Company,  a  corporation 
chartered  by  Congress  for  private  gain,  and  all  of  whose  stock 
was  owned  by  individuals,  but  which  Congress  assisted  by 
donations  and  loans,  of  whose  board  of  directors  the  govern- 
ment appointed  two,  which  makes  annual  reports  to  the  gov- 
ernment, whose  operations  in  laying,  constructing  and  work- 
ing its  railroad  and  telegraph  lines,  as  well  as  its  rates  of  toll, 

10  California  v.  Central   Pacific  R.        "  Central  Pac.  R.  Co.  v.  California, 

Co.,  127  U.  S.  1,  32  L.  ed.  150,  8  Sup.  102  U.  S.  91,  10  Sup.  Ct.  700,  40  L. 

Ct.  1052,  2  Inters.  Comm.  Rep.  153.  ed.  903. 

Examine  Atlantic  &  Pacific  R.  Co.  v.        12  Keokuk  &  Hamilton  Bridge  Co. 

Lesner  (Ariz.),  19  Pac.  157,  2  Inters,  v.  Illinois,  175  U.  S.  020,  44  L.  ed 

Comm.  Rep.  189,  1  L.  It.  A.  244,  38  299,  20  Sup.  Ct.  205. 
Alb.  L.  J.  328.     See  §  129,  herein. 

729 


§   419  TAXATION    OF    FRANCHISES 

are  subject  to  regulations  imposed  by  its  charter,  and  to  sueh 
further  regulations  as  Congress  might  thereafter  make;  on 
whose  failure  to  comply  with  the  terms  and  conditions  of  its 
charter,  or  to  keep  the  road  in  repair  and  use,  Congress  might 
assume  the  control  and  management  thereof,  and  devote  the 
income  to  the  use  of  the  United  States;  the  loan  of  the  United 
States  to  which,  amounting  to  many  millions,  constituted  a 
lien  on  all  the  property,  and  on  failure  to  redeem  which  loan, 
the  Secretary  of  the  Treasury  was  authorized  to  take  posses- 
sion of  the  road  with  all  its  rights,  functions,  immunities  and 
appurtenances,  for  the  use  and  benefit  of  the  United  States, 
and,  finally,  where  all  the  grants  made  to  the  company  were 
declared  to  be  upon  the  condition  that,  besides  paying  the 
government  bond  advances,  the  company  should  keep  the 
railroad  and  telegraph  lines  in  repair  and  use,  and  should  at 
all  times  transmit  dispatches  and  transport  mails,  troops  and 
munitions  of  war,  supplies  and  public  stores  for  the  govern- 
ment, whenever  required  to  do  so  by  any  department  thereof; 
and  that  the  government  should  have  the  preference  of  rates 
not  to  exceed  those  charged  to  private  parties,  and  payable 
by  being  applied  to  the  payment  of  the  bonds  aforesaid;  and 
in  addition  to  which  control,  and  the  obligations  and  lia- 
bilities of  the  company,  Congress,  not  forbidding  a  state  tax, 
reserved  the  right  to  add  to,  alter,  amend  or  repeal  the 
charter.13 

§  419.  Power  of  States  to  Tax  Corporations— Agencies  of 
Federal  Government— Interstate  Commerce. — Although  we 
have  considered  elsewhere  in  this  treatise  the  relative  powers 
of  the  States  and  the  Federal  government  and  also  the  ques- 
tion of  interstate  commerce  in  that  connection,  we  will  also 
consider  here,  more  specifically,  the  application  of  governing 
principles  to  the  questions  of  the  power  of  the  States  as  to 
taxation  and  interstate  commerce  in  connection  therewith.  The 
following  propositions  as  to  the  taxation  by  States  and  their 
municipalities  of  corporations  engaged  in  carrying  on  inter- 

13  Railroad  Co.  v.  Peniston,  18  Wall.  (85  U.  S.)  5,  21  L.  ed.  787. 

730 


TAXATION  OF  FRANCHISES  §  419 

state  commerce  have  been  settled;  the  Constitution  of  the 
United  States  having  given  to  Congress  the  power  to  regulate 
commerce,  not  only  with  foreign  nations,  but  among  the  sev- 
eral States,  that  power  is  necessarily  exclusive  whenever  the 
subjects  are  national  in  their  character,  or  admit  only  of  one 
uniform  system  or  plan  of  regulation.  No  State  can  compel 
a  party,  individual  or  corporation,  to  pay  for  the  privilege  of 
engaging  in  interstate  commerce.  This  immunity  does  not 
prevent  a  State  from  imposing  ordinary  property  taxes  upon 
property  having  a  situs  within  its  territory  and  employed  in 
interstate  commerce.  The  franchise  of  a  corporation,  although 
that  franchise  is  the  business  of  interstate  commerce,  is,  as  a 
part  of  its  property,  subject  to  state  taxation,  providing  at 
least  the  franchise  is  not  derived  from  the  United  States. 
No  corporation,  even  though  engaged  in  interstate  commerce, 
can  appropriate  to  its  own  use  property,  public  or  private, 
without  liability  to  a  charge  therefor.14  In  Fargo  v.  Hart 15 
it  is  held  that  while  a  State  can  tax  property  permanently 
within  its  jurisdiction  although  belonging  to  persons  domiciled 
elsewhere  and  used  in  commerce  between  the  States,  it  cannot 
tax  the  privilege  of  carrying  on  such  commerce,  nor  can  it 
tax  property  outside  of  its  jurisdiction  belonging  to  persons 
domiciled  elsewhere.  In  Adams  Express  Co.  v.  Ohio  16  it  is 
decided  that  it  is  well  settled  that  no  State  can  interfere  with 
interstate  commerce  through  the  imposition  of  a  tax,  by 
whatever  name  called,  which  is,  in  effect,  a  tax  for  the  privi- 
lege of  transacting  such  commerce;  and  also  that  such  restric- 
tion upon  the  power  of  a  State  does  not  in  the  least  degree 
abridge  its  right  to  tax  at  their  full  value  all  the  instrumentali- 
ties used  for  such  commerce.  In  the  same  case,  determined  at 
an  earlier  date,17  the  rule  is  stated  as  follows:  Although  the 

14  Atlantic  and   Pacific  Telegraph  1S  193  U.  S.  490,  48  L.  ed.  761,  24 

Co.  v.  Philadelphia,  190  U.  S.  160,  Sup.  Ct.  498. 

47  L.  ed.  995,  23  Sup.  Ct.  817;  Rob-  '« 166  U.  S.  185,  218,  41  L.  ed.  965, 

bins  v.   Shelby  Taxing  District,  120  17  Sup.  Ct.  604. 

TJ.  S.  489,  492,  7  Sup.  Ct.  592.  30  »  Adams  Express  Co.  v.  Ohio,  165 

L-  ed.  694.  TJ.  S.  194,  255,  41  L.  ed.  683,  707,  17 

Sup.  Ct.  305. 

731 


§   419  TAXATION    OF    FRANCHISES 

transportation  of  the  subjects  of  interstate  commerce,  or  the 
receipts  received  therefrom,  or  the  occupation  or  business  of 
carrying  it  on,  cannot  be  directly  subjected  to  state  taxation, 
yet  property  belonging  to  corporations  or  companies  engaged 
in  such  commerce  may  be;  and  whatever  the  particular  form 
of  the  exaction,  if  it  is  essentially  only  property  taxation,  it 
will  not  be  considered  as  falling  within  the  inhibition  of  the 
Constitution.  In  Postal  Telegraph  Co.  v.  Adams  18  the  court 
holds  that  while  a  State  cannot  exclude  from  its  limits  a 
corporation  engaged  in  interstate  or  foreign  commerce,  or  a 
corporation  in  the  employment  of  the  general  government,  by 
the  imposition  of  unreasonable  conditions,  it  may  subject  it 
to  a  property  taxation  incidentally  affecting  its  occupation 
in  the  same  way  that  business  of  individuals  or  other  corpora- 
tions is  affected  by  common  governmental  burdens.  In  Ficklen 
v.  Shelby  County  19  it  is  held  that  although  a  tax  may  affect 
interstate  commerce  it  may  do  it  so  incidentally  and  so  re- 
motely as  not  to  amount  to  a  regulation  of  such  commerce. 
In  Robbins  v.  Shelby  County  Taxing  District 20  it  is  decided 
that  interstate  commerce  cannot  be  taxed  at  all  by  a  State 
even  though  the  same  amount  of  tax  should  be  laid  on  do- 
mestic commerce,  or  that  which  is  carried  on  solely  within 
the  State.  That  the  power  granted  to  Congress,  to  regulate 
commerce  among  the  States,  being  exclusive  when  the  sub- 
jects are  national  in  their  character,  or  admit  only  of  one 
uniform  system  of  regulation,  the  failure  of  Congress  to  exer- 
cise that  power  in  any  case,  is  an  expression  of  its  will  that 
the  subject  shall  be  left  free  from  restrictions  or  impositions 
upon  it  by  the  several  States.  The  court  also  holds  that  a 
State  may  enact  laws  which  in  practice  operate  to  affect  com- 
merce among  the  States,  as  by  providing  in  the  legitimate 
exercise  of  its  police  power  and  general  jurisdiction,  for  the 
security  and  comfort  of  persons  and  the  protection .  of  prop- 

18 155  U.  S.  688,  39  L.  ed.  311,  15        20 120  U.  S.  489,  7  Sup.  Ct.  592, 
Sup.  Ct.  360.  30  L.  ed.  694. 

19  145  U.  S.  1,  36  L.  ed.  601, 12  Sup. 
Ct.  810. 

732 


TAXATION   OF   FRANCHISES  §   420 

erty;  by  establishing  and  regulating  channels  for  commercial 
facilities;  by  the  passage  of  inspection  laws  and  laws  to  re- 
strict the  sale  of  articles  injurious  to  health  and  morals;  by 
the  imposition  of  taxes  upon  avocations  within  its  borders 
nor  interfering  with  foreign  or  interstate  commerce;  and  in 
other  ways  indicated  by  the  court  in  its  opinion,  subject 
in  all  cases  to  certain  limitations.  In  Pickard  v.  Pullman 
Southern  Car  Co.21  it  is  decided  that  no  State  has  the  right 
to  lay  a  tax  on  interstate  commerce  in  any  form,  whether 
by  way  of  duties  laid  on  the  transportation  of  the  subjects 
of  that  commerce,  or  on  the  receipts  derived  from  that  trans- 
portation, or  on  the  occupation  or  business  of  carrying  it  on, 
and  the  reason  is  that  such  taxation  is  a  burden  on  that  com- 
merce, and  amounts  to  a  regulation  of  it,  which  belongs  solely 
to  Congress.  In  the  Delaware  Railroad  Tax  case  22  it  is  held 
that  the  State  may  impose  taxes  upon  the  corporation  as 
an  entity  existing  under  its  laws,  as  well  as  upon  the  capital 
stock  of  the  corporation  or  its  separate  corporate  property. 
And  the  manner  in  which  its  value  shall  be  assessed  and  the 
rate  of  taxation,  however  arbitrary  or  capricious,  are  mere 
matters  of  legislative  discretion.  And  in  Western  Union  Teleg. 
Co.  v.  Norman23  the  court,  per  Barr,  Dist.  J.,  declares  that: 
"A  State  cannot  tax  foreign  or  interstate  commerce  as  such, 
nor  can  it  tax  its  agencies  or  instrumentalities  in  such  a  man- 
ner as  to  interfere  with  the  regulation  of  this  commerce,  which 
belongs  exclusively  to  Congress.  The  State  may  tax  property 
within  the  State,  though  it  be  employed  in  whole  or  in  part 
in  foreign  or  domestic  commerce,  as  that  use  does  not,  of  itself, 
exempt  it  from  liability  to  taxation  as  is  all  other  property 
within  the  jurisdiction  of  the  State." 

§  420.  Same  Subject— Application  of  Principles— Illustra- 
tive Decisions. — Interstate  commerce  is  not  interfered  with 
by  the  imposition  upon  a  domestic  railroad  of  a  franchise  tax, 

21  117  U.  S.  34,  29  L.  ed.  785,  6  "  18  Wall.  (85  U.  S.)  206,  21  L.  ed. 
Sup.  Ct.  635.  888. 

"77  Fed.  13,21. 

733 


§    420  TAXATION    OF    FRANCHISES 

even  though  no  deduction  is  allowed  from  the  capital  by  rea- 
son of  the  fact  that  a  part  of  the  rolling  stock  of  the  company 
is  constantly  outside  of  the  State.24  A  statute  of  Pennsylvania 
imposing  a  tax  upon  the  tolls  received  by  the  New  York, 
Lake  Erie  and  Western  Railroad  Company  from  other  railroad 
companies,  for  the  use  by  them  respectively  of  so  much  of 
its  railroad  and  tracks  as  lies  in  the  State  of  Pennsylvania  for 
the  passage  over  them  of  trains  owned  and  hauled  by  such 
companies,  respectively,  is  a  valid  tax,  and  is  not  in  conflict 
with  the  interstate  commerce  clause  of  the  Constitution  when 
applied  to  goods  so  transported  from  without  the  State  of 
Pennsylvania.25  In  the  Delaware  Railroad  Tax  case 26  the 
consolidated  company  therein  mentioned  was,  in  1838,  united 
with  two  other  railroad  companies,  one  called  the  Baltimore 
and  Port  Deposit  Railroad  Company,  chartered  by  the  legis- 
lature of  Maryland  in  1831,  with  authority  to  construct  and 
maintain  a  railroad  from  Baltimore  to  Fort  Deposit,  on  the 
Susquehanna  River;  and  the  other  called  the  Philadelphia, 
Wilmington  and  Baltimore  Railroad  Company,  chartered  by 
the  legislature  of  Pennsylvania  in  the  same  year,  with  au- 
thority to  construct  and  maintain  a  railroad  from  Philadelphia 
to  the  Delaware  state  line.  These  three  companies  were,  under 
acts  of  the  legislatures  of  these  States,  Delaware,  Maryland 
and  Pennsylvania,  consolidated  into  one  company  with,  a 
common  stock,  retaining  as  its  corporate  name  the  name  of 
the  company  chartered  by  Pennsylvania.  The  act  of  the 
legislature  of  Delaware,  under  which  the  consolidation  was 
effected,  declared  that  the  respective  companies  should  "Con- 
stitute one  company,  and  be  entitled  to  all  the  rights,  privi- 
leges, and  immunities  which  each  and  all  of  them  possess, 
have,  and  enjoy,  under  and  by  virtue  of  their  respective 
charters."    It  was  held  that  this  latter  provision  in  no  respect 

24  New  York  v.  Miller,  202  U.  S.  25  New  York,  L.  E.  &  W.  R.  R.  Co. 

584,  26  Sup.  Ct.  714,  50  L.  ed.  1155,  v.  Pennsylvania,  158    U.  S.  431,  39 

aff'g  177  N.  Y.  584,  69  N.  E.  1129,  L.  ed.  1043, 15  Sup.  Ct.  896. 

76  N.  E.  1104;  N.  Y.  Tax  Law;  Laws  2f> 18  Wall.  (85  U.  S.)  206. 
1890,  chap.  908,  §  182. 

734 


TAXATION   OF   FRANCHISES  §   420 

changed  the  position  with  reference  to  taxation  of  the  new- 
company,  in  one  of  the  States,  from  that  of  the  old  company 
in  such  State.  It  was  also  decided  that  the  tax  did  not  con- 
flict with  the  power  of  Congress  to  regulate  commerce  among 
the  several  States,  nor  interfere  with  the  right  of  transit  of 
persons  and  property  from  one  State  into  or  through  another. 
In  the  case  of  Henderson  Bridge  Co.  v.  Kentucky  27  the  court 
holds  that  the  acts  of  Congress  conferred  no  right  or  franchise 
on  the  company  to  erect  the  bridge  or  collect  tolls  for  its  use; 
that  they  merely  regulated  the  height  of  bridges  over  the 
river  and  the  width  of  their  spans,  in  order  that  they  might 
not  interfere  with  its  navigation;  and  that  the  declaration 
that  such  bridges  should  be  regarded  as  post  roads  did  not 
interfere  with  the  right  of  the  State  to  impose  taxes;  and 
that  the  tax  was  not  a  tax  on  the  interstate  business  carried 
on  over  or  by  means  of  the  bridge,  because  the  bridge  com- 
pany did  not  transact  such  business;  that  business  being  car- 
ried on  by  the  persons  and  corporations  which  paid  the  bridge 
company  tolls  for  the  privilege  of  using  the  bridge.  In  an- 
other case  the  facts  were  as  follows:  Section  4077  of  the  com- 
pilation of  the  Kentucky  statutes  of  1894  provides  that  each 
of  the  enumerated  companies  or  corporations;  "every  other 
like  company,  corporation  or  association;"  and  also  " every 
other  corporation,  company  or  association  having  or  exercising 
any  special  or  exclusive  privilege  or  franchise  not  allowed  by 
law  to  natural  persons,  or  performing  any  public  service,  shall, 
in  addition  to  the  other  taxes  imposed  on  it  by  law,  annually 
pay  a  tax  on  its  franchise  to  the  State,  and  a  local  tax  thereon 
to  the  county,  incorporated  city,  town  and  taxing  district, 
where  its  franchise  may  be  exercised;"  and  in  the  succeeding 
section  the  words  "franchise,"  "franchises"  and  "corporate 
franchise"  are  used.  It  was  held,  that,  taking  the  whole  act 
together,  and  in  view  of  the  provisions  of  §§  4078,  4079,  4080 
and  4081,  it  was  evident  that  the  word  "franchise"  was  not 
employed  in  a  technical  sense,  and  that  the  legislative  inten- 

"  166  U.  8.  150,  41  L.  ed.  953,  17  Sup.  Ct.  532. 

735 


§   420  TAXATION    OF   FRANCHISES 

tion  was  plain  that  the  entire  property,  tangible  and  intangible, 
of  all  foreign  and  domestic  corporations,  and  all  foreign  and 
domestic  companies  possessing  no  franchise,  should  be  valued 
as  an  entirety,  the  value  of  the  tangible  property  be  deducted, 
and  the  value  of  the  intangible  property  thus  ascertained  be 
taxed  under  these  provisions;  and  as  to  railroad,  telegraph, 
telephone,  express,  sleeping  car,  etc.,  companies,  whose  lines 
extend  beyond  the  limits  of  the  State,  that  their  intangible 
property  should  be  assessed  on  the  basis  of  the  mileage  of 
their  lines  within  and  without  the  State;  but  that  from  the 
valuation  on  the  mileage  basis  the  value  of  all  tangible  prop- 
erty should  be  deducted  before  the  taxation  was  applied.28 
In  still  another  case  it  appeared  that  the  statute  of  Ohio  of 
1893  29  created  a  board  of  appraisers  and  assessors,  and  re- 
quired each  telegraph,  telephone  and  express  company  doing 
business  within  the  State  to  make  returns  of  the  number  of 
shares  of  its  capital,  the  par  value  and  market  value  thereof, 
its  entire  real  and  personal  property,  and  where  located  and 
the  value  thereof  as  assessed  for  taxation,  its  gross  receipts 
for  the  year  of  business  wherever  done  and  of  the  business 
done  in  the  State  of  Ohio,  giving  the  receipts  of  each  office 
in  the  State,  and  the  whole  length  of  the  line  of  rail  and  water 
routes  over  which  it  did  business  within  and  without  the 
State.  It  required  the  board  of  assessors  to  "proceed  to  ascer- 
tain and  assess  the  value  of  the  property  of  said  express, 
telegraph  and  telephone  companies  in  Ohio,  and  in  determin- 
ing the  value  of  the  property  of  said  companies  in  this  State 
to  be  taxed  within  the  State  and  assessed  as  herein  provided 
said  board  shall  be  guided  by  the  value  of  the  entire  capital 
stock  of  said  companies,  and  such  other  evidence  and  rules 
as  will  enable  said  board  to  arrive  at  the  true  value  in  money 
of  the  entire  property  of  said  companies  within  the  State  of 
Ohio,  in  the  proportion  which  the  same  bears  to  the  entire 
property  of  said  companies,  as  determined  by  the  value  of 

28  Adams  Express  Co.  v.  Kentucky,  M  Act  April  27,  1893,  Laws  Ohio, 
166  U.  S.  171,  41  L.  ed.  960,  17  Sup.  330,  and  May  10,  1894,  Laws  Ohio, 
Ct.  527.  220. 

736 


TAXATION    OF    FRANCHISES  §   420 

the  capital  stock  thereof,  and  the  other  evidence  and  rule 
as  aforesaid."  It  was  held,  (1)  that,  assuming  that  the  pro- 
portion of  capital  employed  in  each  of  the  several  States 
through  which  such  a  company  conducts  its  operation  has 
been  fairly  ascertained,  while  taxation  thereon,  or  determined 
with  reference  thereto,  may  be  said  in  some  sense  to  fall  on 
the  business  of  the  company,  it  does  so  only  indirectly;  and 
that  the  taxation  is  essentially  a  property  tax,  and  as  such, 
not  an  interference  with  interstate  commerce;  (2)  that  the 
property  so  taxed  has  its  actual  situs  in  the  State  and  is, 
therefore,  subject  to  its  jurisdiction;  and  that  the  distribution 
among  several  counties  is  a  matter  of  regulation  by  the  state 
legislature;  (3)  that  this  was  not  taking  of  property  without 
due  process  of  law,  either  by  reason  of  its  assessment  as  within 
the  jurisdiction  of  the  taxing  authorities,  or  of  its  classifica- 
tion as  subject  to  the  unit  rule ;  (4)  that  the  valuation  by  the 
assessors  cannot  1  e  overthrown  simply  by  showing  that  it 
was  otherwise  than  as  determined  by  them.30  Again,  the  tax 
imposed  by  the  laws  of  Mississippi/'51  when  enforced  against 
a  telegraph  company  organized  under  the  laws  of  another 
State,  and  engaged  in  interstate  commerce  in  Mississippi,  being 
graduated  according  to  the  amount  and  value  of  the  com- 
pany's property  measured  by  miles,  and  being  in  lieu  of  taxes 
directly  levied  upon  the  property,  is  a  tax  which  it  is  within 
the  power  of  the  State  to  impose:  and  the  exercise  of  that 
power,  as  expounded  by  the  highest  judicial  tribunal  of  the 
State,  does  not  amount  to  a  regulation  of  interstate  com- 
merce,  or  put  an  unconstitutional  restraint  thereon.32  The 
business  of  receiving  and  landing  of  passengers  and  freight  is 
incident  to  their  transportation,  and  a  tax  upon  such  receiving 
and  landing  is  a  tax  upon  transportation  and  upon  commerce, 
interstate  or  foreign,   involved   in  such   transportation.33     A 

so  Adam    I              Co.  v.  Ohio,  165  155  U.  S.  688,  39  L.  ed.  311,  15  Sup. 

U.  S.  194,  II   I  .  -I.  683,  17  Sup.  Ct.  Ct.  360. 

305.  I  Houcester    Ferry  Co.   v.    Penn- 

Code  of  L880,  c.  in,  §  585;  Sess.  sylvania,  111  1'.  S,  196,29  I.,  ed.  158, 

Laws,  1888,  c.  3.  5  Sup,  Ct,  826. 
Postal  'I- 1    Cable  Co.  v.  A.I 

47  7."  7 


§    421  TAXATION    OF    FRANCHISES 

state  tax  upon  the  gross  receipts  of  a  steamship  company 
incorporated  under  its  laws,  which  are  derived  from  the  trans- 
portation of  persons  and  property  by  sea,  between  different 
States,  and  to  and  from  foreign  countries,  is  a  regulation  of 
interstate  commerce,  in  conflict  with  the  exclusive  powers 
of  Congress  under  the  Constitution.34  Under  a  state  statute 
providing  that  certain  corporations  and  companies  "shall,  in 
addition  to  the  other  taxes  imposed  by  law,  annually  pay  a 
tax  on  its  franchise  to  the  State  and  a  local  tax  thereon  to  the 
county,  incorporated  city,  town,  and  taxing  district  where  its 
franchise  may  be  exercised,"  and  other  subsequent  sections 
provide  the  method  of  ascertaining  the  value  of  the  "fran- 
chise" or  "corporate  franchise,"  the  statute  is  not  limited 
to  the  technical  meaning  of  the  term  franchise;  and  the  prop- 
erty to  be  taxed  is  all  the  intangible  property  of  the  corpora- 
tion. If  the  corporation  is  a  foreign  one,  engaged  in  interstate 
commerce,  then  the  taxation  is  upon  such  proportion  of  such 
property  as  the  length  of  lines  situate  in  the  State  sustains  to 
their  entire  length  of  lines.  Such  statute  is  not  unconstitu- 
tional as  violating  the  interstate  commerce  clause  or  Four- 
teenth Amendment.35 

§  421.  Diversity,  Uniformity  and  Equality  of  Taxation. — 

Diversity  of  taxation,  both  with  respect  to  the  amount  im- 
posed, and  the  various  species  of  property  selected,  either  for 
bearing  its  burdens  or  for  being  exempt  from  them,  is  not 
inconsistent  with  a  perfect  uniformity  and  equality  in  taxa- 
tion, and  of  a  just  adaptation  of  property  to  its  burdens.  A 
system  of  taxation  which  imposes  the  same  tax  upon  every 
species  of  property,  irrespective  of  its  nature,  or  condition,  or 
class,  will  be  destructive  of  the  principle  of  uniformity  and 
equality  in  taxation,  and  of  a  just  adaptation  of  property  to 
its  burdens.36  While  a  state  constitution  requires  taxation, 
in  general,  to  be  uniform  and  equal,  but  declares  in  express 

34  Philadelphia    &    South.    Steam-        35  Western    Union    Teleg.    Co.    v. 
ship  Co.  v.  Pennsylvania,  122  U.  S.    Norman  (U.  S.  C.  C),  77  Fed.  13. 
326,  7  Sup.  Ct.  1118,  30  L.  ed.  1200.        36  Pacific   Express  Co.  v.   Seibert, 

738 


TAXATION    OF    FRANCHISES  §    421 

terms  that  a  large  class  of  persons  engaged  in  special  pursuits, 
among  whom  are  persons  or  corporations  owning  franchises 

142  U.  S.  339,  35  L.  ed.  1035,  12  Sup.  v.   Pima  County,  5  Ariz.    142,   145, 

Ct.  250.  146,  48  Pac.  291   (shares  of  national 

As  to  uniformity  and  equality  of  banks;  equality  of  assessment  with 

taxation,  see  the  following  cases:  other  moneyed  capital). 

United  States:  Merchants  &  Mfrs.  Connecticut:  State  v.  Travelers' 
Bank  v.  Pennsylvania,  167  U.  S.  461,  Ins.  Co.,  73  Conn.  255,  47  Atl.  299 
17  Sup.  Ct.  829,  42  L.  ed.  236  (uni-  (neither  the  constitution  of  this  State 
formity  of  taxation — state  statute  nor  that  of  the  United  States  con- 
not  obnoxious  to  Fourteenth  Amend-  tains  any  provision,  express  or  im- 
ment;  national  banks);  Western  Un-  plied,  requiring  equality  or  uni- 
ion  Teleg.  Co.  v.  Indiana,  165  U.  S.  formity  of  taxation;  taxation  of 
304,  41  L.  ed.  725,  17  Sup.  Ct.  345  local  corporations), 
(uniformity  of  taxation;  telegraph  Florida:  Hayes  v.  Walker,  54  Fla. 
companies);  Charlotte,  Columbia  &  163,  44  So.  747  (constitutional  pro- 
Augusta  Rd.  Co.  v.  Gibbes,  142  U.  S.  vision  for  uniformity  does  not  pre- 
386,  35  L.  ed.  1051,  12  Sup.  Ct.  255,  vent  legislature  making  proper  clas- 
48  Am.  &  Eng.  R.  Cas.  595  (consti-  sifications  of  property), 
tutional  law;  equal  and  uniform  tax-  Georgia:  Central  of  Georgia  Ry. 
ation;  railroads);  Kentucky  Railroad  Co.  v.  Wright,  125  Ga.  617,  54  S.  E. 
Tax  Cases,  115  U.  S.  321,  29  L.  ed.  64;  case  controlled  by  Georgia  R.  & 
414,  6  Sup.  Ct.  57  (classification  of  Banking  Co.  v.  Wright,  125  Ga.  589, 
assessed  property;  equal  protection  54  S.  E.  52  (shares  of  stock;  constitu- 
of  law);  Commonwealth  v.  National  tional  requirement  that  all  taxation 
Bank,  101  U.  S.  153,  25  L.  ed.  903  shall  be  uniform,  etc.);  Sparks  v. 
(uniformity  of  taxation;  state  con-  Macon,  98  Ga.  301,  25  S.  E.  459; 
stitution;  equalization  board;  bank  case  is  controlled  by  principles  of 
shares);  Railroad  Companies  v.  Columbus  Railway  Co.  v.  Wright,  89 
Gaines,  97  U.  S.  697,  24  L.  ed.  1091  Ga.  574,  15  S.  E.  293  (taxation  of 
(uniformity  of  taxation;  railroads;  railroad  company  for  county  pur- 
constitutional  law;  obligation  of  con-  poses;  tax  held  equal,  uniform  and 
tract);  Gilman  v.  Sheboygan,  2  Black  just). 

(67  U.  S.),  510,  17  L.  ed.  305  (uni-  Illinois:  Crozer  v.  People,  206  111. 

formity  of  taxation;  Wisconsin  con-  464,    473,    69     N.    E.    489     ("only 

stitution);  W.  C.  Peabody  &  Co.  v.  method  by  which  taxation  could  be 

Pratt,  121  Fed.  772,  58  C.  C.  A.  48  made    exactly    and    absolutely    uni- 

(effect  of  art.  8,  §  1  of  Federal  Con-  form,  and  in  proportion  to  the  value 

stitution);  Western  Union  Teleg.  Co.  of  the  property,  would  be  by  ascer- 

v.  Norman  (C.  C),  77  Fed.  13;  San  taining  its  value  throughout  the  en- 

Mateo    County   v.    Railroad   Co.,   7  tire  year  and  fixing  its  assessed  value 

Sawy.  517.  accordingly");     Raymond,     County 

Alabama:    Phoenix  Carpet  Co.  v.  Treasurer,  v.  Hartford  Fire  Ins.  Co., 

State,  118  Ala.  143,  151,  152,  22  So.  L96  111.  329. 

627  (tax  on  privileges  or  franchises;  Iowa:    Judy   v.    Beckwith    (Iowa, 

equality  and  uniformity  explained).  1908),  111  X.  W.  505  (shares  of  for- 

Arizona:  Consolidated  Nat.  Bank  eign  corporation;  statute  not  violative 

739 


§  421 


TAXATION    OF    FRANCHISES 


and  privileges,  may  be  taxed  as  the  legislature  shall  determine, 
by  a  general  law,  uniform  as  to  the  class  upon  which  it  operates; 


of  constitutional  requirement  of  uni- 
formity). 

Kansas:  Missouri,  K.  &  T.  Ry.  Co. 
v.  Miami  County  Commrs.,  67  Kan. 
434,  73  Pac.  103  (classification  and 
common-law  distinctions);  Atchison, 
Topeka  &  S.  F.  Ry.  Co.  v.  Clark,  60 
Kan.  831,  832,  58  Pac.  561,  modi- 
fying 54  Pac.  930  ("nor  do  we  find  a 
lack  of  equality  and  uniformity  in 
this  tax  of  which  the  railroad  com- 
pany has  cause  to  complain"). 

Kentucky:  Commonwealth  v. 
Walsh's  Trustee,  32  Ky.  L.  Rep. 
460,  106  S.  W.  240  (stockholders;  cor- 
porate franchise;  statute  partly  void); 
Vanceburg  &  S.  L.  Turnpike  Road 
Co.  v.  Maysville  &  B.  S.  R.  Co.,  25 
Ky.  L.  Rep.  1404, 1409,  77  S.  W.  1118 
(statute  provided  that  same  rate  of 
taxation  which  was  levied  on  other 
real  estate  in  any  year,  should  also 
be  levied  on  railroad  property);  De- 
vou  v.  Boske,  23  Ky.  L.  Rep.  364,  63 
S.  W.  44  (taxation  of  turnpike  com- 
pany; statute  held  not  to  violate 
constitution  requiring  all  taxation  to 
be  equal  and  uniform). 

Louisiana:  St.  Anna's  Asylum  v. 
Parker,  109  La.  592,  33  So.  613 
(property  not  exempt;  if  taxed 
should  be  taxed  equally  or  in  a  uni- 
form ratio  according  to  assessment 
legally  made  on  all  property  of  same 
description  upon  which  a  tax  is  lev- 
ied). 

Michigan:  Pingree  v.  Dix,  120 
Mich.  95,  44  L.  R.  A.  679,  6  Det.  L. 
N.  45,  78  N.  W.  1025  (telegraph  and 
t?lephone  lines;  statute  held  to  vio- 
late constitutional  requirement  as  to 
uniformity). 

Minnesota:  State  ex  rel.  Marr  v. 
Stearns,  72  Minn.  200,  222,  223,  75 
N.    W.    210    (system    of    commuted 

740 


taxation  on  property  of  railroad  com- 
panies; equality  and  uniformity). 

Mississippi:  Gulf  &  S.  I.  R.  Co.  v. 
Adams,  90  Miss.  559,  45  So.  91  (priv- 
ilege tax  law;  additional  tax  on  rail- 
roads; discriminatory  and  void  as  ad 
valorem  tax);  Adams  v.  Bank  of  Ox- 
ford, 78  Miss.  532,  29  So.  402  (ad 
valorem  taxes  on  banks;  not  viola- 
tive of  constitutional  requirement  of 
uniformity). 

Missouri:  State,  Johnson,  v.  Chi- 
cago, B.  &  Q.  R.  Co.,  195  Mo.  228, 
238,  93  S.  W.  784  (general  rule  of  law 
is  that  taxes  must  be  uniform  and 
equal,  coextensive  with  the  territory 
to  which  the  tax  applies;  case  of 
special  road  tax);  Ward  v.  Gentry 
County  Board  of  Equalization,  135 
Mo.  309,  322,  323,  36  S.  W.  648 
(assessment  of  banking  property; 
equality  of  taxation). 

New  Jersey:  Central  R.  Co.  of 
New  Jersey  v.  State  Board  of  Assess- 
ors, 74  N.  J.  L.  1,  67  Atl.  672  (stat- 
ute for  taxation  of  railroad  and  canal 
company  does  not  violate  constitu- 
tional provision  as  to  uniformity). 
See  United  New  Jersey  R.  &  Canal 
Co.  v.  Parker  (Err.  &  App.,  1908),  69 
Atl.  239;  Bergen  &  Dundee  R.  Co.  v. 
State  Board  of  Assessors,  74  N.  J.  L. 
742,  67  Atl.  668. 

North  Dakota:  Minneapolis  & 
Northern  Elevator  Co.  v.  Traill 
County,  9  N.  D.  213,  50  L.  R.  A. 
266,  82  N.  W.  727  (assessments  and 
taxation  of  grain  in  elevators,  ware- 
houses and  grain  houses;  statute  not 
violative  of  constitutional  require- 
ment of  uniformity). 

Tennessee:  State  v.  Taylor,  119 
Tenn.  229,  104  S.  W.  242  (street  rail- 
roads; not  improper  classification  of 
property). 


TAXATION    OF    FRANCHISES 


422 


a  statute  under  such  provision  is  not  unconstitutional  which 
prescribes  a  different  rule  of  taxation  for  railroad  companies 
from  that  of  individuals.  Nor  does  it  violate  any  provision  of 
the  Constitution  of  the  United  States.37  Again,  in  a  case  con- 
cerning want  of  uniformity  in  taxation,  it  is  decided  that 
while  it  was  quite  competent  for  the  State  of  Virginia  to  im- 
pose upon  the  movable  personal  property  of  the  Baltimore 
and  Ohio  Railroad  Company  (a  corporation  organized  under 
the  laws  of  Maryland),  which  was  brought  within  its  territory 
and  there  habitually  used  and  employed,  the  same  rate  of 
taxation  which  was  imposed  upon  similar  property  used  in 
like  way  by  its  own  citizens,  it  had  not  done  so  in  the  taxing 
laws  of  the  State  which  were  in  force  when  the  tax  in  con- 
troversy was  imposed.38 


§  422.  Uniformity  and  Equality  of  Taxation — Constitu- 
tional Law— Board  of  Equalization— Illegal  Discrimination — 
Jurisdiction  in  Equity. — There  is  no  general  supervision  by 
the  nation  over  state  taxation,  in  regard  to  which  the  State 
has,  generally  speaking,  the  freedom  of  a  sovereign  both  as  to 


Virginia:  Day  v.  Roberts,  101  Va. 
248,  251,  43  S.  E.  362  (settled  con- 
struction is  that  uniform  taxation  re- 
quires uniformity  not  only  in  the  rate 
of  taxation,  and  in  the  mode  of  as- 
sessment upon  the  taxable  valuation, 
but  that  uniformity  must  be  co- 
extensive with  the  territory  to  which 
it  applies). 

Washington:  Pacific  Nat.  Bank  v. 
Pierce  County,  20  Wash.  (37.",.  56 
Pac.  936,  16  Bkg.  L.  .1.  346  (shares  of 
capita]  stock  of  banking  institutions, 
also  of  real  and  personal  properly; 
constitution  does  not  prescribe  uni- 
form methods  of  assessmenl   for  all 

classes  of  property  bu1  is  a  require- 
ment thai  the  rate  of  assessmenl  and 
the  method  of  valuation  shall  be  uni- 
form as  to  property  sought  to  be 
taxed). 


Wisconsin :  Chicago  &  Northwest- 
ern Ry.  Co.  v.  State,  128  Wis.  553, 
108  N.  W.  557  (uniformity  required 
only  as  to  property  taxed  directly; 
uniformity  of  burden,  not  of  methods; 
public  service  corporations;  fran- 
chises; valuation  of  property  as  a 
unit  and  as  personality;  ad  valorem 
taxation  of  railroad  property);  State 
v.  Railway  Companies,  128  Wis.  449, 
108  N.  W.  594  (license  fees  in  lieu  of 
constitutional  rule  of  uniform- 
ity not  applicable;  return  of  gross 
earnings;  privilege  taxes  not  taxes 
in  constitutional  sense). 

"State    Railroad    Tax    Case,    92 
C.  S.  575,23  Led,  663. 

Maryev.  Baltimore  &  Ohio  R.  P. 
Co.,  127  U.  S.  117,  32  L.  ed.  94,  8 
Sup.  Ct.  1037. 

741 


§    422  TAXATION    OF    FRANCHISES 

objects  and  methods.  Nothing  in  the  Federal  Constitution 
prevents  a  State  from  separating  a  particular  class  of  property 
and  subjecting  it  to  assessment  and  taxation  in  a  mode  and 
by  a  rate  different  from  that  imposed  on  other  property  and 
applying  the  proceeds  to  state  rather  than  local  purposes. 
Nor  is  the  legislature  bound  to  impose  the  same  rate  of  tax 
upon  one  class  of  property  that  it  does  upon  another;  it  is 
sufficient  if  all  of  the  same  class  are  subjected  to  the  same 
rate  and  the  tax  is  administered  impartially  among  them.39 
Again,  it  is  not  beyond  the  power  of  a  State,  so  far  as  the 
Federal  Constitution  is  concerned,  to  tax  the  franchise  of  a 
corporation  at  a  different  rate  from  the  tangible  property  in 
the  State.40  This  doctrine  has  been  restated  in  a  comparatively 
recent  case  although  not  the  contention  in  the  case,  as  it  was 
asserted  that  the  board  of  equalization  assessed  the  franchises 
and  other  property  of  certain  companies  at  a  different  rate 
and  by  a  different  method  from  that  which  had  been  em- 
ployed by  the  board  for  other  corporations  of  the  same  class 
for  that  year.  The  result  was  an  enormous  disparity  and  dis- 
crimination between  the  various  assessments  upon  the  cor- 
porations; and  action  of  such  board,  resulting  in  illegal  dis- 
crimination, was  held  in  this  case  not  to  be  action  forbidden 
by  the  state  legislature  and  therefore  beyond  review  by  the 
Federal  courts  under  the  Fourteenth  Amendment.  It  was 
also  decided  in  the  same  case  that  where  a  corporation  has 
paid  the  full  amount  of  its  tax  as  based  upon  the  same  rate 
as  that  levied  upon  other  property  of  the  same  class,  equity 
will  restrain  the  collection  of  the  excess  illegally  assessed, 
there  being  no  adequate  remedy  at  law,  when  it  appears  that 
it  would  require  a  multiplicity  of  suits  against  the  various  tax- 
ing authorities  to  recover  the  tax  and  that  a  portion  of  it 

39  Michigan  Central  R.  Co.  v.  Water  Co.  v.  Fond  du  Lac,  82  Wis. 
Powers,  201  U.  S.  245,  50  L.  ed.  744,  322,  16  L.  R.  A.  581,  52  N.  W.  439; 
26  Sup.  Ct.  259,  aff'g  Michigan  Rail-  Galveston,  H.  &  S.  A.  Ry.  Co.  v. 
road  Tax  Cases,  138  Fed.  223.  State  (Tex.  Civ.  App.),  93  S.  W.  464, 

40  Coulter  v.  Louisville  &  N.  R.  reversed  in  State  v.  Galveston,  H.  & 
Co.,  196  U.  S.  599,  49  L.  ed.  615,  25  S.  A.  Ry.  Co.  (Tex.,  1906),  97  S.  W. 
Sup.  Ct.  342.    Examine  Fond  du  Lac  71. 

742 


TAXATION    OF    FRANCHISES 


§  422 


would  go  to  the  State  against  which  no  action  would  lie,  and 
where  the  amount  is  so  great  that  its  payment  would  cause 
insolvency,  and  a  levy  upon  the  property — in  this  case  a 
street  car  system — would  embarrass  and  injure  the  public.41 


41  Raymond  v.  Chicago  Traction 
Co.,  207  U.  S.  20,  37  L.  ed.  7,  28  Sup. 
Ct.  7,  aff'g  114  Fed.  557,  two  justices 
dissenting.  The  court  in  its  opinion, 
per  Peckham,  J.,  said:  "The  case 
before  us  is  one  which  the  facts  make 
exceptional.  It  is  made  entirely  clear 
that  the  board  of  equalization  did  not 
equalize  the  assessments  in  the  cases 
of  these  corporations,  the  effect  of 
which  was  that  they  were  levied  upon 
a  different  principle  or  followed  a 
different  method  from  that  adopted 
in  the  case  of  other  like  corporations 
whose  property  the  board  had  as- 
sessed for  the  same  year.  It  was  not 
the  mere  action  of  individuals,  but, 
under  the  facts  herein  detailed,  it  was 
the  action  of  the  State  through  the 
board.  *  *  *  The  most  impor- 
tant function  of  the  board,  that  of 
equalizing  assessments,  in  order  to 
carry  out  the  provisions  of  the  con- 
stitution of  the  State  in  levying  a  tax 
by  valuation,  'so  that  every  person 
shall  pay  a  tax  in  proportion  to  the 
value  of  his,  her  or  its  property,' 
was,  in  this  instance,  omitted  and  ig- 
nored, while  the  board  was  making 
an  assessment  which  it  had  jurisdic- 
tion to  make  under  the  laws  of  the 
State.  This  action  resulted  in  illegal 
discrimination,  which  under  these 
facts  was  the  action  of  the  State 
through  the  board.  Barney  v.  City 
of  New  York,  193  U.  S.  430,  48  L. 
ed.  737,  24  Sup.  Ct.  502,  holds  that 
where  the  acl  complained  of  was  for- 
bidden by  the  state  Legislature,  it 
could  not  be  said  to  be  tin-  ac1  of  the 
State.  Such  is  not  the  ease  here. 
We  are  also  of  opinion  that  th< 


is  one  over  which  equity  has  juris- 
diction. In  Cummings  v.  National 
Bank,  101  U.  S.  153,  25  L.  ed.  903, 
this  court  held  that  the  case  was  one 
properly  brought  in  equity.  It  was 
to  restrain  the  collection  of  a  tax. 
While  the  court  held  that  the  posi- 
tion of  the  bank  as  trustee  entitled 
it  to  maintain  an  action  in  equity 
and  also  under  the  statute  of  Ohio, 
it  was  further  held  (page  157):  'In- 
dependently of  this  statute,  however, 
we  are  of  opinion  that  when  a  rule 
or  system  of  valuation  is  adopted  by 
those  whose  duty  it  is  to  make  the 
assessment,  which  is  designed  to  op- 
erate unequally  and  to  violate  a  fun- 
damental principle  of  the  constitu- 
tion, and  when  this  rule  is  applied  not 
solely  to  one  individual,  but  to  a  large 
class  of  individuals  or  corporations, 
that  equity  may  properly  interfere  to 
restrain  the  operation  of  this  uncon- 
stitutional exercise  of  power.'  We 
have  in  the  case  at  bar  similar  facts. 
A  system  of  valuation  was  adopted 
and  applied  to  a  large  class  of  corpo- 
rations, differing  wholly  from  that 
applied  to  other  corporations  of  the 
same  class,  and  resulting  in  a  dis- 
crimination against  the  appellee  of 
the  most  serious  and  material  na- 
ture. It  is  not  a  question  of  mere 
difference  of  opinion  as  to  the  val- 
uation of  property,  but  it  is  a  ques- 
tion of  difference  of  method  in  the 
manner  of  assessing  property  of  the 
same  kind.  Although  the  law  itself 
may  be  valid  and  provide  for  a  proper 
valuation,  yet  if,  through  mistake  on 
the  part  of  the  State,  through  its 
board  of  equalization  and  while  act- 

743 


§  423 


TAXATION'    ()!•'    FRANCHISES 


§  423.  To  What  Extent  Franchises  Taxable— Generally.— 

We  have  seen  that  franchises  are  property  almost  universally 


ing  as  a  gwasi-judicial  body,  the  board 
erred  in  the  method  to  be  pursued  in 
relation  to  the  corporations  now  be- 
fore us,  the  mistake  is  one  which  may 
be  corrected  in  equity.  In  all  these 
cases,  however,  where  there  is  juris- 
diction to  tax  at  all,  equity  will  not 
grant  an  injunction  to  restrain  the 
collection,  even  of  an  illegal  tax, 
without  the  payment  on  the  part  of 
the  taxpayer  of  the  amount  of  a  tax 
fairly  and  equitably  due.  Bank  v. 
Marye,  191  U.  S.  272,  24  Sup.  Ct.  68, 
48  L.  ed.  180,  and  cases  cited.  Act- 
ing upon  this  principle,  the  Circuit 
Court  refused  to  issue  the  injunction 
until  the  appellee  paid  the  amount 
which  the  court  found  to  be  a  fair 
and  just  amount  due  from  the  ap- 
pellee for  the  tax  of  the  year  1900, 
based  upon  a  tax  at  the  same  rate 
as  that  levied  upon  other  property 
and  on  corporations  of  the  same  class 
within  the  State.  The  sum  to  be  paid 
by  the  appellee  herein,  as  decided  by 
the  circuit  judge,  was  $134,350.03. 
That  sum  was  paid  instead  of 
$1,019,211.78,  called  for  by  the  war- 
rant in  the  hands  of  the  collector, 
finally  it  is  objected  that  the  ap- 
pellee had  a  complete  and  adequate 
remedy  at  law  by  paying  the  amount 
of  the  warrant,  and  then  suing  the 
collector  to  recover  the  same  back  as 
money  paid  under  duress,  although 
upon  a  void  warrant.  Undoubtedly 
if  there  be  a  complete  and  adequate 
remedy  at  law  in  such  a  case  as  this, 
the  remedy  in  equity  will  not  be 
recognized.  Assuming  the  tax  to  be 
void,  equity  will  not  restrain  by  in- 
junction its  collection,  unless  there 
be  some  other  ground  for  equitable 
interposition.  Shelton  v.  Piatt,  139 
U.  S.  591,  35  L.  ed.  273,  11  Sup.  Ct. 

744 


646;  Allen  v.  Palace  Car  Co.,  139 
U.S.  OSS,  11  Sup.  Ct.  682,  35  L.  ed. 
303;  Express  Co.  v.  Seibert,  142  U.  S. 
339,  35  L.  ed.  1035,  12  Sup.  Ct.  250. 
In  the  cases  in  139  U.  S.,  supra,  it 
was  recognized  that  no  ground  ap- 
peared for  the  interposition  of  a 
court  of  equity,  because  of  the  ex- 
istence of  a  statute  in  the  State  of 
Tennessee  providing  for  paying  the 
amount  of  the  alleged  illegal  tax  to 
the  officer  holding  the  warrant,  and 
granting  to  the  taxpayer  a  right  to 
commence  an  action  to  recover  back 
the  tax  thus  paid,  the  statute  pro- 
Aiding  that  the  officer  should  pay 
the  amount  received  into  the  state 
treasury,  where  it  was  to  remain  un- 
til the  question  was  decided,  and,  if 
it  was  decided  in  favor  of  the  tax- 
payer, provision  was  made  for  the 
repayment  of  the  amount  by  the 
State.  The  other  averments,  beside 
that  of  the  illegality  of  the  tax, 
made  in  these  two  cases,  were  held 
not  to  constitute  a  ground  for  the 
interposition  of  a  court  of  equity  by 
restraining  the  collection  of  the  tax. 
In  the  case  in  142  U.  S.,  supra,  the 
court  held  that  there  was  no  ground 
to  warrant  the  interposition  of  a 
court  of  equity.  The  case  was  de- 
cided upon  the  ground  that  the  aver- 
ment of  illegality  of  the  tax  was  not 
sustained.  There  is  no  statute  of  a 
similar  kind  in  Illinois  which  has  been 
called  to  our  attention,  but  some  of 
the  cases  in  that  State  hold  that  such 
a  suit  may  be  maintained  against 
the  collector  when  the  money  was 
paid  under  protest.  In  the  case  at 
bar  it  is  averred  that  it  is  the  duty 
of  the  collector,  having  received  the 
money  on  his  warrant,  to  pay  the 
sum  so  received  in   the  proportions 


TAXATION    OF    FRANCHISES 


§  423 


classed  as  real  property  or  incorporeal  hereditaments,42  and 

this  constitutes  an  important  factor  in  determining  to  what 

designated  in  his  tax  books  to  the  And,  in  addition,  there  is  the  allega- 
city  treasurer  of  the  city  of  Chicago,  tion  that  a  levy  upon  the  property 
the  county  treasurer  of  the  county  of  the  appellee  would  interfere  with 
of  Cook,  the  treasurer  of  the  sanitary  the  operation  of  the  street  car  system 
district,  and  other  officers  and  au-  in  the  city  of  Chicago,  operated  by 
thorities  entitled  to  receive  the  same,  the  appellee,  and  would  greatly  em- 
and  if  the  plaintiff  instituted  suit  to  barrass  and  injure  the  public  who 
recover  back  the  taxes  so  paid  to  the  have  to  use  the  cars.  Upon  the 
town  or  county  collector  he  would  whole,  we  think  it  is  apparent  that 
be  obliged  to  bring  separate  suits  no  adequate  remedy  at  law  exists  in 
against  each  one  of  the  several  tax-  this  case,  and  that  the  judgment  en- 
ing  bodies  receiving  its  proportionate  joining  the  collection  of  the  balance 
share  of  the  tax,  thereby  necessitat-  of  the  tax  levied  against  the  appellee, 
ing  a  multiplicity  of  suits,  and  the  above  that  which  has  been  paid  un- 
proportion  of  the  tax  which  would  der  the  direction  of  the  Circuit  Court, 
go  to  the  State  of  Illinois,  could  not  must  be  Affirmed." 
be  collected  back  by  any  legal  pro-  In  the  above  case  of  Raymond  v. 
ceeding  whatsoever;  and  if  repay-  Chicago  Traction  Co.,  the  material 
ment  could  be  compelled  from  the  part  of  art.  9,  §  1,  of  the  con- 
city  of  Chicago  and  other  taxing  stitution  of  Illinois,  1870,  is  as  fol- 
bodies,  such  repayment  would  not  lows:  "The  general  assembly  shall 
cover  the  cost,  including  commissions  provide  such  revenue  as  may  be 
deducted  for  the  collection  of  the  needful  by  levying  a  tax  by  valu,:- 
tax,  and  in  that  way  it  was  averred  tion,  so  that  every  person  and  cor- 
that  the  appellee  would  be  sub-  poration  shall  pay  a  tax  in  propor- 
jected  to  a  great  and  irreparable  in-  tion  to  the  value  of  his,  her  or  its 
jury,  for  which  there  was  not  a  property — such  value  to  be  ascer- 
complete  and  adequate  remedy  at  tained  by  some  person  or  persons  to 
law.  There  was  also  the  allega-  be  elected  or  appointed  in  such  man- 
tion  *  *  *  that  if  compelled  to  hit  as  the  general  assembly  shall 
pay  this  enormous  tax  it  would  be  direct  and  not  otherwise;  but  the 
rendered  insolvent.  We  think  all  general  assembly  shall  have  power 
these  allegations  combined  take  the  to  tax  *  *  *  insurance,  tele- 
case  out  of  the  class  where  relief  is  graph  and  express  interests  or  busi- 
prayed  for,  founded  simply  upon  the  ness,  vendors  of  patents  and  persons 
unconstitutionality  of  the  law  under  or  corporations  owning  or  using  fran- 
whicb  the  tax  is  levied,  or  upon  the  chises  and  privileges  in  such  manner 
illegality  for  any  Other  reason,  of  the  as  it  shall  from  time  to  time  direct  by 
tax  itself,  and  bring  the  case  within  general  law,  uniform  as  to  the  class 
the  jurisdiction  of  a  court  of  equity,  upon   which   it  operates."     The   fol- 

42See    |§25   '-'7.   herein.      Examine  Tax    on    capital   stock,    franchises, 

Southwestern  Teleg.  A-  Teleph.  Co.  v.  etc.,  is  tax  on  property  and  its  assets. 

City  of  San  Antonio  (Tex.  Civ.  App.,  Commonwealth   v.   New  York,   P.   & 

1903),  7:>>  S.  W.  859.  <  >.  \i.  Co.,  iss  Pa.  169,  41  Atl.  594; 

745 


§  423 


TAXATION    OF    FRANCHISES 


extent  franchises  are  taxable  or  to  what  extent  the  power  to 
tax  such  property  may  be  exercised.    In  the  complex  civiliza- 

lowing  are  the  statutes  in  question  in  ble  property  of  such  company  or  as- 
the  above  case:  "Real  property  shall  sociation;  such  board  shall  adopt  such 
be  valued  as  follows:  First,  each  tract    rules  and  principles  for  ascertaining 


or  lot  of  real  property  shall  be  valued 
at  its  fair  cash  value  estimated  at  the 
price  it  would  bring  at  a  fair  volun- 
tary sale."  Hurd's  Rev.  Stat.,  1899, 
c.  120,  par.  4.  "Personal  property 
shall  be  valued  as  follows:  First,  all 
personal  property,  except  as  herein 


the  fair  cash  value  of  such  capital 
stock  as  to  it  may  seem  equitable  and 
just,  and  such  rules  and  principles 
when  so  adopted,  if  not  inconsistent 
with  this  act,  shall  be  as  binding  and 
of  the  same  effect  as  if  contained  in 
this  act,  subject,  however,  to  such 


otherwise  directed,  shall  be  valued  at  change,  alteration  or  amendment  as 

its  fair  cash  value.     *    *    *    Fourth,  may  be  found  from  time  to  time  to  be 

the  capital  stock  of  all  companies  and  necessary  by  said  board."     Hurd's 

associations  now  or  hereafter  created  Rev.  Stat.,  1899,  c.  120,  §  3. 
under  the  laws  of  this  State,  except        Raymond  v.  Chicago  Edison  Co., 

those  required  to  be  assessed  by  the  207  U.  S.  42,  was  decided  upon  the 

local   assessors  and  hereinafter  pro-  authority  of  the  above  principal  case, 
vided,  shall  be  so  valued  by  the  state        See  §  182,  herein, 
board   of   equalization   as   to    ascer-        Remedies   for  assessment   by  board 

tain  and  determine  respectively  the  of  equalization  in  excess  of  authority. 

fair  cash  value  of  such  capital  stock,  Compare  Central  Pac.  R.  Co.  v.  Cali- 

including    the    franchise,    over    and  fornia,  162  U.  S.  91,  16  Sup.  Ct.  766, 

above  the  assessed  value  of  the  tangi-  40  L.  ed.  909. 


Commonwealth  v.  Beach  Creek  Rd. 
Co.,  188  Pa.  203,  41  Atl.  605;  Com- 
monwealth v.  Fall  Brook  Rd.  Co., 
188  Pa.  199,  41  Atl.  606;  Pa.  Act 
June  8,  1891,  P.  L.  229. 

Tax  on  franchises,  rails,  rolling 
stock,  etc.,  under  const.  §  179,  is  tax 
on  personal  property.  Minneapolis, 
St.  Paul  &  S.  M.  Ry.  Co.  v.  Dickey 
County,  11  N.  Dak.  107,  90  N.  W. 
260. 

"  In  some  States  the  franchises  and 
privileges  of  a  corporation  are  de- 
clared to  be  personal  property.  Such 
was  the  case  in  New  York  with  ref- 
erence to  the  privileges  and  franchises 
of  savings  banks.  They  were  so  de- 
clared by  a  law  passed  in  1866,  and 
made  liable  to  taxation  to  an  amount 
not  exceeding  the  gross  sum  of  the 
surplus  earned  and  in  the  possession 

746 


of  the  banks.  The  law  was  sustained 
by  the  Court  of  Appeals  of  the  State 
in  Monroe  Savings  Bank  v.  City  of 
Rochester,  37  N.  Y.  365,  369,  370, 
although  the  bank  had  a  portion  of 
its  property  invested  in  United  States 
bonds.  In  its  opinion  the  court  ob- 
served that  in  declaring  the  privileges 
and  franchises  of  a  bank  to  be  per^ 
sonal  property  the  legislature  adopted 
no  novel  principle  of  taxation;  that 
the  powers  and  privileges  which 
constitute  the  franchises  of  a  corpo- 
ration were  in  a  just  sense  property, 
quite  distinct  and  separate  from  the 
property  which,  by  the  use  of  such 
franchises,  the  corporation  might  ac- 
quire; that  they  might  be  subjected 
to  taxation  if  the  legislature  saw  fit 
so  to  enact;  that  such  taxation  being 
within  the  power  of  the  legislature, 


TAXATION    OF   FRANCHISES  §    423 

tion  of  to-day  a  large  portion  of  the  wealth  of  a  community 
consists  of  intangible  property,  and  there  is  nothing  in  the 
nature  of  things  or  in  the  limitations  of  the  Federal  Constitu- 
tion which  restrains  a  State  from  taxing  such  intangible  prop- 
erty at  its  real  value.43  In  California  franchises  are,  under  its 
constitution,  classed  as  property  and  are  subject  to  taxation.44 
In  Illinois  they  are  also  declared  to  be  taxable  property.45 
In  Kentucky  the  constitution  does  not  prevent  intangible 
property  from  being  taxed,  and  a  statute  of  that  State  pro- 
viding for  the  taxation  of  franchises  of  every  "corporation, 
company,  or  association  having  or  exercising  any  special  or 
exclusive  privilege  or  franchise,  not  allowed  to  natural  per- 
sons, or  performing  any  public  service,"  covers  tangible  and 

it  might  prescribe  a  rule  or  test  of  State.  If  the  grantee  accepts  the 
their  value;  that  all  franchises  were  boon  it  must  bear  the  burden.' 
not  of  equal  value,  their  value  de-  This  doctrine  of  the  taxability  of  the 
pending,  in  some  instances,  upon  the  franchises  of  a  corporation  without 
nature  of  the  business  authorized,  reference  to  the  character  of  the  prop- 
and  the  extent  to  which  permission  erty  in  which  its  capital  stock  or  its 
was  given  to  multiply  capital  for  its  deposits  are  invested  is  sustained  by 
prosecution;  and  that  the  tax  being  the  judgments  in  Society  for  Sav- 
upon  the  franchises  and  privileges  it  ings  v.  Coite,  6  Wall.  (73  U.  S.)  594, 
was  unimportant  in  what  manner  the  18  L.  ed.  897,  and  Provident  Institu- 
property  of  the  corporation  was  in-  tion  v.  Massachusetts,  6  Wall.  (73 
vested.  And  the  court  added:  'It  U.  S.)  611,  18  L.  ed.  907."  Home  In- 
is  true  that  where  a  state  tax  is  laid  surance  Co.  v.  New  York,  134  U.  S. 
upon  the  property  of  an  individual  .594,  601,  33  L.  ed.  102.5,  10  Sup.  Ct. 
or  a   corporation,  so  much   of  their    593,  per  Field,  J. 

property  as  is  invested  in  United  "  Adams  Express  Co.  v.  Ohio,  166 
States  bonds  is  to  be  treated,  for  the  U.  S.  1S5,  41  L.  ed.  965,  17  Sup.  Ct. 
purposes  of  assessment,  as  if  it  604,  denying  rehearing  in  165  U.  S. 
did  not  exist,  Imt  this  rule  can  have  194,  255,  41  L.  ed.  683,  17  Sup.  Ct. 
no  application  to  an  assessment  upon  30.5.  See  this  case  under  §  39, 
a    franchise,    where    a    reference   to   herein. 

property  is  made  only  to  ascertain  "  Bank  of  California  v.  City  & 
the  value  of  the  thing  assessed.'  County  of  San  Francisco,  142  Cal. 
And  again: 'It  must  be  regarded  as  a  276,  75  Pac.  832,  64  I..  K.  A.  918; 
sound  doctrine  to  hold  that  the  State,  San  Joaquin  &.  Kings  River  Canal  & 
in  granting  a  franchise  to  a  corpo-  Irrig.  Co.  v.  Merced  County,  2  Cal. 
ration,  may  limit  the  powers  to  be  App.  .593,  84  Pac.  285. 
exercised  under  it  and  annex  con-  *•  Porter  v.  Rockford,  Rock  Island 
ditions  to  its  enjoyment,  and  make  &  St.  Louis  Rd.  Co.,  76  111.  561,  573, 
it  contribute  to  the  revenues  of  the    per  Scholfield,  J. 

747 


§   423  TAXATION    OF    FRANCHISES 

intangible  property;  and  the  statute  does  not  provide  for  an 
additional  tax  upon  the  same  property,  but  upon  intangible 
property  which  has  not  been  taxed  as  tangible  property.46 
In  Louisiana  charters  and  franchises  are  specifically  men- 
tioned in  the  taxing  statute,  and  franchises  are  taxable  prop- 
erty and  no  kind  of  property  is  exempt  from  taxation  in  that 
State.47    It  is  held  in  Maine  that  no  legislation  of  that  State 

46  Adams  Express  Co.  v.  Kentucky  is  exempt  from  taxation  in  Louisiana, 
(Weir  v.  Norman),  166  U.  S.  171,  41  save  that  precisely  enumerated  in 
L.  ed.960, 17  Sup.  Ct.  527;  const.  Ky.,  the  fundamental  law  itself.  The  ac- 
§§  172, 174;  Ky.  Stat.,  1894,  §§  4077-  cepted  rule  everywhere  is  that  gran- 
4081.  See  Louisville  Tank  Line  v.  tees  of  franchises  receive  the  same 
Commonwealth,  29  Ky.  L.  Rep.  257,  from  the  sovereign  subject  to  the 
93  S.  W.  635  (Ky.  St.,  1903,  §  4077,  State's  power  of  taxation,  unless 
covers  what  corporations);  Common-  otherwise  specially  provided.  As 
wealth  v.  Cheasapeake  &  O.  Ry.  Co.,  well  said  by  counsel  representing  the 
28  Ky.  L.  Rep.  1110,  91  S.  W.  672  city  of  New  Orleans:  'Whenever  a 
(see  this  case  under  §9,  herein);  man  accumulates  property  in  open 
Hager  v.  Louisville  Title  Co.,  27  Ky.  competition  with  his  fellow  man,  the 
L.  Rep.  345,  85  S.  W.  182  (title  and  sovereign  subjects  the  result  of  his 
guaranty  company  not  taxable  un-  toil,  his  property,  to  taxation.  Why 
der  Ky.  Stat.,  1903,  §4077);  Stand-  should  it  exempt  property  acquired 
ard  Oil  Co.  v.  Commonwealth,  26  by  another  individual  as  the  result 
Ky.  L.  Rep.  985,  82  S.  W.  1020  (mere  of  his  ownership  (or  administration) 
trading  corporations  not  included  of  an  attribute  of  sovereignty— an 
under  §  4077);  Henderson  Bridge  Co.  attribute  which  he,  and  he  alone,  has 
v.  Negley,  23  Ky.  L.  Rep.  746,  63  the  right  to  exercise?'  The  con- 
S.  W.  989  (taxation  of  franchises  trary  theory,  that  the  purchase  of  a 
authorized  by  Ky.  const.,  §174);  franchise  from  the  sovereign  exempts 
Louisville  Tobacco  Warehouse  Co.  v.  the  franchise  from  taxation,  has  been 
Commonwealth,  20  Ky.  L.  Rep.  1747,  exploded.  The  subject  came  up  in 
49  S.  W.  1069,  reversing  20  Ky.  L.  this  State  in  the  railroad  cases  re- 
Rep.  1047,  48  S.  W.  420  (public  ser-  ported  in  40  La.  Ann.  587,  4  So.  512, 
vice  required  by  §4077,  not  per-  in  42  La.  Ann.  4,  7  So.  59,  21  Am.  St. 
formed  by  tobacco  warehouseman,  Rep.  365,  and  in  44  La.  Ann.  1055, 
or  ordinary  business  corporation  11  So.  820,  where  the  right  to  tax 
created  under  the  general  law).  was  maintained,  one  of  the  cases,  to 

47  Maestri  v.  Board  of  Assessors  wit:  that  in  40  La.  Ann.  and  4  So., 
(1903),  110  La.  517,  the  court,  per  going  by  writ  of  error  to  the  Supreme 
Blanchard,  J.  (at  p.  528),  says:  Court  of  the  United  States,  where  the 
"  Franchises  are  taxable  property,  judgment  of  this  court  was  affirmed. 
New  Orleans  City  Gas  Light  Co.  v.  New  Orleans  City  &  L.  R.  Co.  v. 
Board  of  Assessors,  31  La.  Ann.  476;  New  Orleans,  143  U.  S.  192,  12  Sup. 
Williams  v.  Bronsard,  51  La.  Ann.  Ct.  406,  36  L.  ed.  121.  The  Rev- 
335,  24  So.  808.    No  kind  of  property    enue  law  of  1898  (acts  1898,  p.  347, 

748 


TAXATION    OF    FRANCHISES  §    423 

has  authorized  municipal  assessors  to  assess  any  tax  upon  a 
corporation  on  account  of  its  franchise,  the  powers  and  privi- 
leges granted  to  it  by  the  sovereign  power  of  the  State.  "The 
State  may  impose  such  a  tax  as  has  been  frequently  done  and 
upheld;  or  assessors  in  placing  the  valuation  upon  the  shares 
of  a  corporation,  should  take  into  account  the  value  of  the 
franchise,  because  the  value  of  the  franchise  necessarily  af- 
fects the  value  of  the  shares,  which  by  statute,  are  taxable 
to  the  owners  thereof."  In  this  case  a  water  company  had 
made  a  contract  with  a  municipality  whereby  it  had  agreed 
to  furnish  water  to  the  city  for  various  purposes  "for  such 
sums  annually  as  said  city  should  assess  upon  the  franchise 
and  works,"  and  the  fact  that  the  word  "franchise"  was  used 
in  the  contract  was  held  not  to  affect  the  value  of  the  shares 
of  stock  except  in  so  far  as  its  value  might  be  enhanced  or 
depreciated  by  reason  of  the  contract,  according  to  whether 
it  was  beneficial  to  the  company  or  otherwise.48  But  in  the 
Opinions  of  the  Justices  49  a  tax  can  be  lawfully  assessed  upon 
the  franchise  of  a  railroad  and  also  a  separate  tax  upon  the 
roadbed,  rolling  stock  and  fixtures  at  their  cash  value.50  In 
a  Maryland  case  the  court  declares  that  the  distinction  is 
clear  between  a  franchise,  as  such,  and  the  property  acquired 
for  the  use  of  the  franchise;  and  that  the  naked,  unused  fran- 
chise is  property  concerning  the  assessment  of  which  in  that 
condition  for  purposes  of  taxation,  the  statutes  of  that  State 
do  not  make  provision,  otherwise  than  by  including  it  as  an 
element  which  enhances  the  value  of  the  shares  of  the  capital 
stock.  But  that  when  the  franchise  is  brought  into  activity 
and  is  availed  of  to  accomplish  the  ends  it  was  designed  to 
effect,  the  property  acquired  under  it  becomes  amenable  to 

No.  170)  is  the  taxing  statute  now  in  w  Wheeler  v.  County  Commission- 
force  in  the  State  of  Louisiana,  ers,  88  Me.  174,  33  Atl.  983. 
Under  the  term  'property'  as  therein  40  102  Me.  52. 
used,  Bubjecl  to  taxation,  it  gives  a  B0  See  State  v.  Canadian  Pacific  Ry. 
long  list,  and  as  coming  within  the  Co.,  100  Me.  202,  00  Atl.  901,  where 
definition  of 'property,' as  objects  of  in  the  fourth  point  in  the  case  the 
taxation,  it  specifically  mentions  computation  of  a  franchise  was  in 
'charters  and   franchises.'"  question. 

749 


§   424  TAXATION   OF   FRANCHISES 

the  tax  laws  apart  from  the  tax  on  the  stock,  and  its  value, 
as  an  easement,  if  an  easement  it  be,  may  be  largely  aug- 
mented by  the  use  to  which  the  franchise  enables  that  prop- 
erty or  easement  to  be  put.  It  is  also  asserted  in  the  same 
case  that  it  is  a  self-evident  proposition  that  the  use  to  which 
a  franchise  permits  an  easement  to  be  put,  is  an  essential  ele- 
ment to  be  considered  in  placing  a  valuation  on  that  easement 
for  purposes  of  taxation.51  In  Michigan  a  statute  is  held  not 
to  disclose  an  intent  to  impose  a  franchise  tax  but  only  a  tax 
upon  property  where  it  provides  that  the  remainder,  after 
deduction  from  the  net  assets  above  liabilities  of  the  value  of 
an  insurance  company's  real  estate,  shall  represent  the  amount 
of  personalty  liable  for  the  tax.52 

§  424.  Same  Subject. — In  Nebraska,  under  a  statute  pro- 
viding for  assessment  on  tangible  property  and  in  addition 
thereto  on  gross  receipts,  and  that  "such  gross  receipts  shall 
represent  the  franchise  valuation  which  shall  not  be  other- 

51  Consolidated  Gas  Co.  v.  Balti-  a  new  entity,  which  as  a  going  con- 
more  City,  101  Md.  541,  545-548,  cern  can  neither  be  assessed  nor  sold 
per  McSherry,  C.  J.,  who  also  says:  to  advantage,  except  as  one  thing, 
"  'They,'  said  the  Court  of  Appeals  of  single  and  entire.'  *  *  *  What 
New  York  in  People  v.  Tax  Commis-  then  is  the  thing  assessed  and  taxed 
sioners,  174  N.  Y.  441  '  (tangible  in  this  case?  Is  it  the  mere  right  to 
chattels  in  the  public  highway) ,  have  occupy  the  streets  below  the  surface 
no  assessable  value  worthy  of  notice  with  mains  and  pipes — which  is  the 
except  through  the  actual  and  con-  franchise — or,  is  it  the  easement  ac- 
stant  use  made  of  them  as  incidental  quired,  through  the  franchise,  by 
to  the  special  franchises.  The  value  the  actual  occupancy  of  the  high- 
of  either  resides  in  the  union  of  both  ways  in  that  manner?  Ostensibly  it 
and  can  be  practically  ascertained  is  the  latter;  and  the  right  to  include 
only  by  treating  them  as  a  unit,  the  value  of  that  easement  as  an 
Unless  assessed  together  both  cannot  element  in  fixing  an  assessment  on 
be  adequately  assessed.  A  man  of  the  tangible  property  employed  in 
judgment  in  valuing  a  wagon,  and  availing  of  that  easement  is,  we  think, 
especially  in  estimating  its  earning  no  longer  an  open  question  in  this 
capacity,  does  not  pass  upon  the  State  since  the  decision  in  The  Ap- 
body,  wheels,  top  and  tongue  sep-  peal  Tax  Court  v.  Union  R.  Co.,  50 
arately.      We    regard    the    tangible  Md.  274." 

property  as  an  inseparable  part  of        52  Detroit  Fire  &  Marine  Ins.  Co.  v. 

the  special   franchises  mentioned  in  Hartz   (Mich.),  10  Det.  Leg.  N.  23, 

the  statute,  constituting  with  them  94  N.  W.  7. 

750 


TAXATION   OF   FRANCHISES  §   424 

wise  assessed,"  the  term  "  franchise  "  was  held  to  be  a  generic 
term  and  to  include  all  rights  and  privileges  granted  to  or 
exercised  by  an  individual  or  public  service  corporation.53 
In  a  New  Jersey  case  it  is  asserted  that  the  franchise  that  is 
taxed  as  property  is  the  privilege  enjoyed  by  a  corporation 
of  exercising  certain  powers  derived  from  the  State,  and  a 
distinction  is  made  between  such  a  franchise  and  that  which 
consists  in  the  right  to  exist  in  corporate  form  without  refer- 
ence to  the  powers  that  under  such  form  the  company  may 
exercise.54  In  New  York  it  is  declared  in  a  comparatively 
early  case  that  under  the  laws  of  that  State  a  mere  franchise 
or  incorporeal  hereditament  of  any  kind  is  not  taxable  except 
by  special  statute;  that  a  person  may  not  be  taxed  on  his 
franchise  but  he  can  be  taxed  upon  a  structure  or  real  estate, 
as  in  case  of  a  railroad  or  bridge  the  property  itself  can  be 
taxed  but  not  the  company's  franchise.  "The  bridge  and 
railroad  may  not  be  of  any  use  to  their  owners  without  the 
franchise  pertaining  or  incident  to  them,  and  yet  they  may 
be  taxed,  and  for  the  purpose  of  fixing  their  value,  the  uses  to 
which  they  must  be  subjected  must  be  considered."  55  In  a 
later  case  it  is  asserted  that  the  franchise  made  taxable  by  the 
tax  law  56  does  not  mean  the  right  to  exercise  corporate  func- 

53  Western  Union  Teleg.  Co.  v.  Jersey  St.  Ry.  Co.  v.  Jersey  City,  73 
City  of  Omaha  (Neb.,  1905),  103  N.  J.  L.  481,  483,  63  Atl.  833;  Tax 
N.  W.  84-86,  under  §  78,  New  Rev-  Act  1903,  Pamph.  L.  p.  394;  Act 
enue  Law,  §§  10,  477,  Cobbey's  Ann.  1900,  Pamph.  L.  p.  502. 

Stat.,  1903.    See  this  case  also  under  "This   act   imposes   no   tax   upon 

§  39,  herein.  franchises  but  merely  requires  that 

54  Lumberville  Bridge  Co.  v.  As-  they  shall  be  considered  in  ascer- 
sessors,  55  N.  J.  L.  529,  537,  25  L.  R.  taming  the  value  of  the  property  as- 
A.  134,  20  Atl.  711,  per  Garrison,  J.,  sessed.  The  franchises  intended  are 
who  says:  "This  distinction,  al-  but  the  legnl  privileges  which  the 
though  formulated  by  Mr.  Justice  company  enjoys  in  the  use  of  its 
Field  in  Home  Ins.  Co.  v.  New  York,  property,  and  of  course,  therefore, 
134  II.  S.  594,33  L.  ed.  1025,  10  Sup.  should  not  be  disregarded."  State 
Ct.  593,  was  not  strictly  adhered  to  Hoard  of  Assessors  v.  Central  Rd. 
in  his  subsequent  expressions  be-  Co.,  IS  N.  J.  L.  1-1(5,  314,  per  Dixon,  J. 
cause  there  was  nothing  in  that  case  "  Smith  v.  Mayor,  etc.,  of  New 
to  call  for  a  nice  use  of  terms."  York,  68  N.  Y.  55:2,  555,  per  Earl,  J., 

Distinction  exists  between  prop-  citing  People  v.  Barker,  48  N.  Y.  70. 
erty  tax  and  franchise  tax.     North        59  §  2,  subd.  3,  Laws  1896,  p.  796, 

751 


§    424  TAXATION    OF    FRANCHISES 

tions,  but  the  right  to  use  the  public  streets,  highways  or 
public  places  for  the  purpose  of  laying  pipes  or  mains,  either 
as  an  individual  or  a  corporation;  that  the  right  to  use  the 
public  streets  or  highways  is  a  property  right,  and  it  is  because 
such  property  has  a  value  that  the  right  exists  to  assess  it. 
The  franchise  thus  made  taxable  must  mean  some  special 
privilege  derived  from  some  governmental  body  or  some 
political  body  having  authority  to  grant  the  property  right 
sought  to  be  taxed;  and  that  it  is  this  species  of  property, 
intangible  in  its  nature,  which  the  law  is  enacted  to  reach.57 
In  another  case  in  the  same  State  a  distinction  is  made  be- 
tween the  taxation  of  corporate  franchises  and  a  tax  upon 
property  of  the  corporation  for  the  privilege  of  carrying  on 
business.58  In  a  Pennsylvania  case  it  is  said  that:  "The  power 
to  tax  corporate  franchises  is  undoubtedly  recognized  and 
acted  upon  in  this  State.  The  test,  whether  the  tax  in  any 
given  case  is  a  franchise  as  distinguished  from  a  property  tax, 
would  seem,  from  the  authorities,  to  be  that  a  tax  according 
to  a  valuation  is  a  tax  upon  property,  whereas  a  tax  imposed 
according  to  nominal  value,  or  measured  by  some  fixed  stand- 
ard of  mere  calculation — as  contrasted  with  valuation — fixed 
by  the  law  itself,  may  be  a  franchise  tax;"  thus,  to  illustrate, 
a  tax  on  capital  stock  cannot  be  a  franchise  tax  as  tested  by 
the  above  criterion.59  In  Washington  corporate  franchises  are 
held  to  be  taxable.60 

c.  908,  as  amended  by  Laws   1899,  That    franchise    tax    is   a   tax   on 

p.  1589,  c.  712.  corporate  functions,  rather  than  on 

57  People  ex  rel.  Retsof  Min.  Co.  v.  property,  see  Security  Trust  Co.  v. 
Priest,  77  N.  Y.  Supp.  382,  75  App.  Liberty  Bldg.  Co.,  89  N.  Y.  Supp. 
Div.  131,  aff'd  (mem.)  175  N.  Y.  511,  340,  96  App.  Div.  436;  Laws  1901, 
per  the  court.     Quoted  in  Western  p.  316,  c.  132. 

Union  Teleg.  Co.  v.  City  of  Omaha  That  franchise  is  taxable  property, 

(Neb.,  1905),  103  N.W.  84,  85,  86.  see  Hatfield   v.  Strauss,  189    N.  Y. 

58  People  v.  Knight,  174  N.  Y.  475,  208,  219,  82  N.  E.  172,  per  O'Brien,  J. 
67  N.  E.  65,  case  reverses  73  N.  Y.  59  Commonwealth  v.  Standard  Oil 
Supp.  745,  67  App.  Div.  333.  Co.,   101   Pa.   119,   127,  citing  as  to 

60  Edison  Electric  Illuminating  Co.    Light   &   Power   Co.    v.   Judson,   21 
v.   Spokane  City,  22  Wash.   168,  60   Wash.  49. 
Pac.   132.     See  Commercial  Electric 

752 


TAXATION    OF    FRANCHISES  §    425 

§  425.  Franchise  Tax— Capital  Stock— Meaning  of  Terms 
—Nature  of  Tax— Construction  of  Statute.61 — The  words 
"capital  stock,"  as  used  in  the  Tax  Law  of  New  York  imposing 
a  franchise  tax  on  corporations  for  the  privilege  of  doing  busi- 
ness or  exercising  its  corporate  franchises  in  the  State,  refer 
to  the  capital  or  property  of  the  corporation;  and  the  words 
"employed  within  this  State,"  as  used  in  the  statute,  do  not 
mean  simply  the  legal  situs  of  the  property  of  the  corpora- 
tion.62 It  is  also  held  in  the  same  State  that  the  term  "capital 
stock,"  as  used  in  its  franchise  tax  law,  means  not  the  share 
stock  held  by  individuals,  but  the  actual  capital  which  it 
represents,  employed  in  that  State;  when  considered  as  a 
basis  for  a  franchise  tax,  it  is  the  equivalent  of  the  term  "capi- 
tal" and  it  is  the  amount  of  capital  so  employed  upon  which 
the  tax  is  to  be  computed.63     This  tax  is  imposed  for  the 

above  criterion  Kittanning  Coal  Co.  U.  S.)  200,  17  L.  ed.  793;  Society  for 
v.  Commonwealth,  29  P.  F.  S.  104;  Savings  v.  Coite,  6  Wall.  (73  U.  S.) 
Bank  of  Commerce  v.  New  York  594,  18  L.  ed.  S97;  Providence  In- 
City,  2  Black  (67  U.  S.),  620, 17  L.  ed-.  stitution  v.  Massachusetts,  6  Wall. 
451;    Bank   Tax   Case,   2    Wall.    (09  (73  U.  S.)  611,  18  L.  ed.  907. 

81  See  §§439,  440,  herein.  26     Sup.    Ct.    — ;     Western    Union 

82  People  ex  rel.  Lackawanna  Tcleg.  Co.  v.  Norman,  77  Fed.  13, 
Transp.  Co.  v.  Knight,  77  N.  Y.  Supp.    22. 

398,  75  App.   Div.   164;  N.  Y.  Tax  Illinois:  State  Board  of  Equaliza- 

Law,   Laws   1896,  chap.  90S,   §  L82,  tion  v.  People,  191  111.528,547-549, 

am'd  by  Laws   L901,  chap.  558;  by  68  L.  It.  A.  513,  61  N.  E.  339. 

Laws   190(i,  p.   1195,   chap.  474;   by  Kentucky:  Henderson  Bridge  Co. 

Laws  1907,  p.  1726,  chap.  734,  v. Commonwealth,  99  Ky.  623,17  Ky. 

83  People  ex  rel.  Commercial  Cable  L.  Rep.  389,  29  L.  H.  A.  73,  31  S.  W. 
Co.  v.  Morgan,  178  X.  V.  133,  rev'g  486,  aff'd  166  U.  S.  150,  17  Sup.  Ct, 
86  App.  Div.  577,  83  X.  Y.  Supp.  998.  532,  11  L.  ed.  953;  Henderson  Bridge 
The  court,  per  Werner,  J.,  said:  Co.  v.  Negley,  Sheriff,  23  Ky.  L.  Rep. 
"'Capital   stock'   and   'capital'   are  746. 

practically   the   equivalent    of   each       Minnesota:  State  v.  Duluth  Gas  & 

other  when  considered  as  the  basis  Water  Co.,  76  Minn.  96,  102-104,78 

of  a  franchise  tax."  Id.,  140.  X.  W.  1032,  57  L.  R.  A.  63. 

Whether    "franrki.se"    or    "/ran-       New  York:  People  ex  rel.  Roches- 

chises"   included  in   "capital  stock,"  ter  Ry.  Co.  v.  Pond,  57  N.  Y.  Supp. 

e<   the  following  cases:  190,  193,37  \|.p.  Div.  330;  Williams 

"Inited  States:  New  York  Central  v.  W<    tern  Union Teleg.  Co.,48N.  Y. 

&  Hudson  River  Rd.  Co    v.   Miller,  Super.  Ct.  (16  Jones  &  S.)  349,  368, 

202    U.    S    584,   596,   50    L.  ed        .  case  rev'd  93  N.  Y.  162. 

48  753 


§  425 


TAXATION    OF    FRANCHISES 


privilege  of  doing  business  or  exercising  corporate  franchises 
within  the  State.64    But  under  a  Federal  Supreme  Court  de- 


Ohio:  Hubbard  v.  Brush,  61  Ohio 
St.  252,  261,  262,  55  N.  E.  829. 

Tennessee :  Tradesman  Publishing 
Co.  v.  Knoxville  Car  Wheel  Co.,  11 
Pick.  (95  Term.)  634,  654-656,  49 
Am.  St.  Rep.  943,  32  S.  W.  1097,  31 
L.  R.  A.  593. 

Compare  People  ex  rel.  Manhattan 
Ry.  Co.  v.  Barker,  146  N.  Y.  304,  40 
N.  E.  996,  s.  c,  165  N.  Y.  305,  310, 
317,  324,  340,  59  N.  E.  151,  cited  in 
People  ex  rel.  Metropolitan  St.  Ry. 
Co.  v.  Tax  Commissioners,  174  N.  Y, 
417,  436,  67  N.  E.  169;  People  ex  rel. 
Manhattan  Ry.  Co.  v.  Barker,  152 
N.  Y.  417,  439,  452,  46  N.  E.  875. 

Whether  tax  imposed  on  gross  re- 
ceipts is  franchise  tax,  see  Stephens 
v.  Texas  &  Pac.  Ry.  Co.  (Tex.  Sup.), 
97  S.  W.  309;  Galveston,  H.  &  S.  Ry. 
Co.  v.  State  (Tex.  Sup.),  97  S.  W. 
71,  rev'g93  S.  W.  464. 

Tax  on  value  of  capital  stock  is  tax 
on  property  in  which  capital  invested. 
Delaware,  Lackawanna  &  Western 
Rd.  Co.  v.  Pennsylvania,  198  U.  S. 
341,  49  L.  ed.  1077,  25  Sup.  Ct.  669. 

Tax  on  cash  value  of  shares  of 
cap-Hal  stock  not  tax  upon  shares  of 
individual  stockholders  or  upon  prop- 
erty of  corporation,  but  tax  upon  cor- 
poration itself  measured  by  percen- 
tage upon  cash  value  of  certain 
proportional  part  of  shares  of  capital 
stock.  Delaware  Railroad  Tax,  18 
Wall.  (85  U.  S.)  206,  21  L.  ed.  888. 

Capital  stock  and  shares  in  joint- 
stock  company  represents  tangible  and 
intangible  property,  including  all 
corporate  franchises.  Adams  Ex- 
press Co.  v.  Ohio,  166  U.  S.  185,  41 
L.  ed.  965,  17  Sup.  Ct.  604. 


Capital  stock  and  corporate  prop- 
erty distinguished.  The  shares  of  the 
capital  stock  of  a  corporation  are 
essentially  different  and  distinct  from 
the  corporate  property,  and  the 
owner  of  all  the  corporation's  stock 
does  not  own  or  become  entitled  to 
control  the  property;  such  owner  and 
the  corporation  do  not  thereby  be- 
come one  person.  Monongahela 
Bridge  Co.  v.  Pittsburg  &  Birming- 
ham Traction  Co.,  196  Pa.  25,  46 
Atl.  99.     See  §  11,  herein. 

That  capital  stock  is  distinguished 
from  corporate  property  examine 
also  the  following  cases: 

United  States:  Van  Allen  v.  As- 
sessors, 3  Wall.  (70  U.  S.)  573, 
18  L.  ed.  229;  Sturges  v.  Stetson, 
1  Biss.  (C.  C.)  246,  Fed.  Cas. 
No.  13,568. 

Connecticut:  Security  Co.  v.  Hart- 
ford, 61  Conn.  89. 

Illinois:  Ohio  R.  v.  Weber,  96  111. 
443. 

Kentucky:  Henderson  Bridge  Co. 
v.  Commonwealth,  99  Ky.  623. 

Missouri:  Brent  v.  Hart,  10  Mo. 
App.  143. 

New  Jersey:  State  v.  Morristown 
F.  Assoc,  23  N.  J.  L.  195. 

New  York:  People  ex  rel.  Singer 
Mfg.  Co.  v.  Wemple,  150  N.  Y.  46, 
50,  44  N.  E.  787,  case  affirms  78  Hun, 
63,  60  N.  Y.  St.  Rep.  662,  29  N.  Y. 
Supp.  92;  People  ex  rel.  Union  Trust 
Co.  v.  Coleman,  126  N.  Y.  433,  38 
N.  Y.  St.  Rep.  237,  27  N.  E.  818,  case 
reverses  36  N.  Y.  St.  Rep.  221,  13 
N.  Y.  Supp.  67;  Pratt  v.  Munson,  17 
Hun  (N.  Y.),  475. 

Pennsylvania:  Wilkes-Barre  Bank 


64  People    ex    rel.    United    States 
Aluminum  P.  P.  Co    v.  Knight,  174 

754 


N.   Y.  475,  67   N.  E.   65,  rev'g  67 
App.  Div.  333,  73  N.  Y.  Supp.  745. 


TAXATION    OF    FRANCHISES  §    425 

cision  where  the  state  statute  imposed  a  tax  upon  "the  cor- 
porate franchise  or  business"  it  is  held  that  the  tax  was  upon 
the  right  or  privilege  to  be  a  corporation  and  to  do  business 
within  the  State  in  a  corporate  capacity,  and  that  it  was  not 
a  tax  upon  the  privilege  or  franchise  which,  when  incorporated, 
the  company  might  exercise.65  And  the  same  rule  applies  to 
the  statute  in  the  same  State  imposing  a  franchise  tax  on 
trust  companies;66  the  tax  imposed  by  the  statute  is  a  tax 
upon  a  privilege  and  not  upon  property.  It  is  not  imposed 
upon  the  privilege  of  becoming  a  corporation,  for  that  would 
be  an  organization  tax  payable  but  once  for  the  entire  period 
of  corporate  existence.  It  is  imposed  "for  the  privilege  of 
exercising"  the  corporate  franchise,  and  is  measured  by  the 
value  of  the  investments  made  and  used  in  carrying  on  the 
corporate  business.  It  is  an  annual  tax  imposed  for  the  pur- 
pose of  exercising,  not  of  possessing,  a  corporate  franchise. 
It  is  the  implied  intent  of  the  statute  that  the  tax  should 
be  apportioned  according  to  the  period  during  which  the 
company  exercised  such  franchise.67  The  question  whether  a 
corporation  does  business  so  as  to  bring  it  within  the  opera- 
tion of  the  statute  is  to  be  determined  by  the  character  of  the 
business,  and  it  is  not  a  question  of  the  right  to  carry  it  on.68 
Unless  the  goods  are  brought  into  the  State  before  sale,69 

v.  Wilkes-Barre,  148  Pa.  601;  Com-  102  Pa.  109;  Lycoming  Co.  v.  Gam- 

monwealth  v.  Lehigh  Ave.  lid.  Co.,  ble,  47  Pa.  106,  110. 

129   Pa.   405,   18  Atl.  414,  498,   24  Tennessee:  Brightwell  v.  Mallory, 

Wkly  N.  of  Cas.  530,  5  L.  R.  A.  367;  10  Yerg.  (Tenn.)  196;  Union  Bank  v. 

Philadelphia  &  Ridge  Ave.  Rd.  Co.,  State,  9  Yerg.  (Tenn.)  489. 

Amended   statute  expressly  so   pro-    v.  Miller,  177  N.  Y.  51,  69  N.  E.  124, 
vides.  rev'g  85  App.   Div.   211,   83   N.   Y. 

65  Home  Ins.  Co.  v.  New  York,  134    Supp.  185. 

U.  S.  594,  33  L.  ed.  1025,  10  Sup.  Ct.        M  People  v.  American  Bell  Teleph. 

593,  aff'g  92  N.  Y.  328,  which  is  also  Co.,  117  N.  Y.  241,  22  N.  E.  1057. 
affirmed  by  divided  court,  119  U.  S.        00  People  ex  rel.   Southern  Cotton 

129,  30  L.  ed.  350,  8  Sup.  Ct.  1385,  Oil  Co.  v.  Wemple,  131  N.  V.  <i4,  42 

restored  to  calendar,  122  U.  S.  636  N.  Y.  St.  Rep.  632,  29  N.  E.  1002, 

(mem.).  aff'g  61   Hun,  83,  39  N.  Y.  St.  Rep. 

66  N.    Y.   Tax    Laws;    Laws    1896,  738,  15  N.  Y.  Supp.  446;  People  ex 
chap.  90S,  §  L87a.    Sec  §434,  herein,  rel.  Parke,  Davis  &  Co.  v.  Roberts, 

87  People  ex  rel.  Mutual  Trust  Co.    91  Hun,  158,  71  N.  Y.  St.  Rep.  138, 

755 


§     125  TAXATION    OF    FRANCHISES 

sales  by  sample  do  not  constitute  doing  business;70  and  the 
fact  that  a  portion  of  a  corporation's  business  is  the  importa- 
tion and  sale  of  articles  in  original  packages  does  not  invalidate 
the  tax.71  In  Vermont  the  franchise  tax  is  imposed  upon 
banks  for  the  privilege  of  carrying  on  their  business  as  a 
corporation.72  A  tax  on  the  nominal  capital  of  a  bank,  without 
regard  to  the  nature  or  value  of  the  property  composing  it,  is 
annexed  to  the  franchise  as  a  royalty  for  the  grant,  and  not  a 
burden  imposed  on  the  property  itself.73  In  an  Alabama  case 
the  court  says:  "The  tax  imposed  by  the  subdivision  has  the 
properties  and  qualities  of  a  franchise  tax — it  is  measured  by 
the  amount  of  paid-up  capital  stock  of  the  corporation — and 
this  distinguishes  it  from  a  tax  on  property.  Speaking  in 
reference  to  this  inquiry  it  was  said  by  Clopton,  J.,  in  State  v. 
Stonewall  Ins.  Co.,74  'The  usual  and  most  certain  test  is, 
whether  the  tax  is  upon  the  capital  stock,  eo  nomine,  without 
regard  to  its  value,  or  at  its  assessed  valuation  in  whatever  it 
may  be  invested;  if  the  former,  it  is  a  franchise  tax,  if  the  latter, 
a  tax  upon  property.'  "  75  A  statute  of  Massachusetts  which 
requires  corporations  having  a  capital  stock  divided  into 
shares,  to  pay  a  tax  of  a  certain  percentage  (one-sixth  of  one 
per  cent)  upon  "the  excess  of  the  market  value"  of  all  such 
stock  over  the  value  of  its  real  estate  and  machinery,  is,  under 
the  settled  course  of  decision  in  the  State  of  Massachusetts, 

36  N.  Y.  Supp.  368,  aff'd  149  N.  Y.        71  New  York  v.  Roberts,  171  U.  S. 

608,  44  N.  E.  1127,  which  is  aff'd,  658,  43  L.  ed.  345,  19  Sup.  Ct.  235, 

New  York  v.  Roberts,  171  U.  S.  658,  31   Chic.   Leg.   News,  111,   119,  129, 

43  L.  ed.  345,  19  Sup.  Ct.  235;  People  17  Nat.  Corp.  Rep.  677,  5  Det.  L.  N., 

v.  Horn  Silver  Mining  Co.,  105  N.  Y.  No.  41. 

76,  6  N.  Y.  St.  Rep.  495,  26  Wkly.        "  State  v.   Franklin  County  Sav. 

Dig.  158,  11  N.  E.  155,  aff'g  38  Hun,  Bank  &  Trust  Co.,   74  Vt.   246,  52 

276.  Atl.  1069;  Vt.  St.  583,  584,  as  am'd 

70  People  ex  rel.  Seth  Thomas  Clock  by  Laws  1896,  No.  18,  §  2. 
Co.  v.  Wemple,  133  N.  Y.  323,  45        73  Bank  of  Commerce  v.  New  York, 

N.  Y.  St.  Rep.  234,  31  N.  E.  238,  2  Black  (67    U.  S.),  620,  17  L.   ed. 

rev'g  42  N.  Y.  St.  Rep.  60,  16  N.  Y.  451. 
Supp.  602.     See  also  People  ex  rel.        74  89  Ala.  338. 

Washington  Mills  Co.  v.  Roberts,  40        75  Phoenix  Carpet  Co.  v.  State,  118 

N.  Y.  Supp.  417,  8  App.  Div.  201,  Ala.  143,  151,  32  So.  627,  per  Brick- 

aff'd  151  N.  Y.  619,  45  N.  E.  1134.  ell,  C.  J. 

756 


TAXATION    OF   FRANCHISES  §    425 

on  its  constitution  and  laws,  a  statute  which  imposes  a  fran- 
chise tax;  and  the  tax  is  lawful.76  So  the  tax  imposed  by  the 
statutes  of  Massachusetts,77  requiring  every  telegraph  com- 
pany owning  a  line  of  telegraph  within  the  State  to  pay  to  the 
state  treasurer  "a  tax  upon  its  corporate  franchise  at  a  valua- 
tion thereof  equal  to  the  aggregate  value  of  the  shares  in  its 
capital  stock,"  deducting  such  portion  of  that  valuation  as  is 
proportional  to  the  length  of  its  lines  without  the  State,  and 
deducting  also  an  amount  equal  to  the  value  of  its  real  estate 
and  machinery  subject  to  local  taxation  within  the  State,  is 
in  effect  a  tax  upon  the  corporation  on  account  of  property 
owned  and  used  by  it  within  the  State;  and  is  constitutional 
and  valid,  as  applied  to  a  telegraph  company  incorporated  by 
another  State,  and  which  has  accepted  the  rights  conferred  by 
Congress  by  §  5263  of  the  Revised  Statutes.78  Again,  an  act 
of  the  legislature  of  Delaware,  taxing  railroad  and  canal  com- 
panies, was  passed  on  the  8th  of  April,  1809.  The  fourth 
section  of  the  act  provided  that  every  company  of  the  class 
designated  should,  in  addition  to  other  taxes,  also  pay  to  the 
treasurer  of  the  State  for  its  use,  on  the  first  day  of  July  of 
each  year  thereafter,  or  within  thirty  days  from  such  period,  a 
tax  of  one-fourth  of  one  per  cent  upon  the  actual  cash  value 
of  every  share  of  its  capital  stock;  with  a  proviso  that  when 
the  line  of  the  railroad  or  canal  belonging  to  a  company  liable 
to  the  tax  lay  partly  in  the  State  and  partly  in  an  adjoining 
State  or  States,  the  company  should  only  be  required  to  pay 
the  tax  on  such  number  of  the  shares  of  its  capital  stock  as 
would  be  in  that  proportion  to  the  whole  number  of  shares, 
which  the  length  of  the  road  or  canal  within  the  limits  of  the 
State  should  bear  to  the  whole  length  of  such  road  or  canal. 
It  was  held,  that  the  tax  was  not  imposed  upon  the  shares 
of  the  individual  stockholders,  or  upon  the  property  of  the 

'"Hamilton  Co.  v.  Massachusetts,  628,  11  Sup.  Ct.  889;  Western  Union 

'    6  Wall.  (73  U.  S.)  632,  18  L.  ed.  904.  Telegraph     Company     v.     Attorney 

77  Pub.  Stnt.,  c.  13,  &§  10,42.  General  of  Massachusetts,  125  U.  S. 

78  m                 m  -  ■.    Western  Union  530,  8  Sup.  Ct.  901,  31  L.  ed.  790, 
Telegraph  Co.,  141  U.S.  10,35L.  ed.  followed. 

757 


§    426  TAXATION    OF    FRANCHISES 

corporation,  but  was  a  tax  upon  the  corporation  itself,  meas- 
ured by  a  percentage  upon  the  cash  value  of  a  certain  propor- 
tional part  of  the  shares  of  its  capital  stock, — a  rule  which, 
though  an  arbitrary  one,  was  declared  approximately  just  in 
the  case.79  Where  a  gross  earnings  tax  is  imposed  upon  a 
railroad  company  in  lieu  of  all  other  taxes  except  certain 
real  estate,  such  tax  includes  a  stock  of  groceries  kept  by  the 
company  to  furnish  supplies  for  a  steamboat  line  operated 
by  it.80 

§  426.  State  Taxation— Franchise  Assessments— Capital 
Stock — Constitutional  Law — Remedy. — In  order  to  bring 
taxation  imposed  by  a  State  within  the  scope  of  the  Four- 
teenth Amendment  of  the  National  Constitution,  the  case 
should  be  so  clearly  and  palpably  an  illegal  encroachment  upon 
private  rights  as  to  leave  no  doubt  that  such  taxation,  by  its 
necessary  operation,  is  really  spoliation  under  the  guise  of 
exerting  the  power  to  tax.81  And  the  validity  of  a  state  tax 
upon  corporations  created  under  its  laws  or  doing  business 
within  its  territory,  can  in  no  way  be  dependent  upon  the 
mode  which  the  State  may  deem  fit  to  adopt  in  fixing  the 
amount  for  any  year  which  it  will  exact  for  the  franchise.82 
The  statute  of  New  York  of  1881,83  imposing  a  tax  upon  the 
corporate  franchise  or  business  of  every  corporation,  joint- 
stock  company  or  association  incorporated  or  organized  under 
any  law  of  the  State  or  of  any  other  State  or  country,  to  be 
computed  by  a  percentage  upon  its  whole  capital  stock,  and 
to  be  ascertained  in  the  manner  provided  by  the  act,  when 
applied  to  a  manufacturing  corporation  organized  under  the 

79  Delaware  Railroad  Tax,  18  Wall.  82  Home  Ins.  Co.  v.  New  York,  134 
(85  U.  S.)  206,  21  L.  ed.  888.  U.  S.  594,  33  L.  ed.  1025,  10  Sup.  Ct. 

80  Pere  Marquette  R.  Co.  v.  City  593,  aff'g  92  N.  Y.  328,  which  is  also 
of  Ludington  (Mich.),  10  Det.  Leg.  aff'd  by  divided  court  in  119  U.  S. 
N.  231,  95  N.  W.  417;  Comp.  Laws  129,  30  L.  ed.  350,  8  Sup.  Ct.  1385, 
1897,  §  6277.  restored  to  calendar  122  U.  S.  636 

81  Henderson   Bridge   Co.   v.   Hen-  (mem.). 

derson  City,  173  U.  S.  592,  43  L.  ed.        83  Act  of  May  26,  1881,  c.  361. 
823,  19  Sup.  Ct.  553. 

758 


TAXATION    OF   FRANCHISES  §    426 

laws  of  Utah,  and  doing  the  greater  part  of  its  business  out 
of  the  State  of  New  York,  and  paying  taxes  in  Illinois  and 
Utah,  but  doing  a  small  part  of  its  business  in  the  State  of 
New  York,  does  not  tax  persons  or  property  not  within  the 
State;  nor  regulate  interstate  commerce;  nor  take  private 
property  without  just  compensation;  nor  deny  to  the  corpora- 
tion the  equal  protection  of  the  laws ;  nor  impose  a  tax  beyond 
the  constitutional  power  of  the  State;  and  the  remedy  of  the 
corporation  against  hardship  and  injustice,  if  any  has  been 
suffered,  must  be  sought  in  the  legislature  of  the  State.84  So 
the  tax  law  of  that  State  of  1899,85  imposing  taxes  on  certain 
public  franchises,  is  not  repugnant  to  the  equal  protection, 
due  process  or  impairment  of  obligation  clauses  of  the  Federal 
Constitution  and  of  the  Fourteenth  Amendment  thereto.86 
Again,  the  statutes  of  the  same  State  providing  that  "Every 
corporation,  joint-stock  company  or  association  whatever, 
now  or  hereafter  incorporated,  organized  or  formed  under,  by 
or  pursuant  to  law  in  this  State  or  in  any  other  State  or  country 
and  doing  business  in  that  State,  except  only  savings  banks 
and  institutions  for  savings,  life  insurance  companies,  banks, 
foreign  insurance  companies,  manufacturing  or  mining  cor- 
porations or  companies,  wholly  engaged  in  carrying  on  manu- 
facture or  mining  ores  within  this  State,  and  agricultural  and 
horticultural  societies  or  associations,  which  exception,  how- 
ever, shall  not  include  gas  companies,  trust  companies,  electric 
or  steam  heating,  lighting  and  power  companies,  shall  be  liable 
to  and  shall  pay  a  tax  as  a  tax  upon  its  franchise  or  business, 
into  the  state  treasury  annually,  to  be  computed  as  follows:" 
and  that  "The  amount  of  capital  stock  which  shall  be  the 
basis  for  tax    *    *    *     in  the   case   of  every   corporation, 

84  Horn  Silver  Mining  Co.  v.  Now  25  Sup.  Ct.  705.  Proposition  may, 
York,  143  U.  S.  305,  36  L.  ed.  164,  however,  be  deemed  limited  in  this 
12  Sup.  Ct.    103.  decision  to  the  franchises  involved  in 

85  As  amended  May  26,  1899,  c.  712,  this  case.  As  to  Tax  haw,  see  Cum- 
p.  1589.  ming  &  Gilbert's  Gen'l  Laws  &  Stat- 

86  Metropolitan  St.  Ry.  Co.  v.  utes  of  N.  Y.,  Title  "Taxation,"  for 
New  York  State  Board  of  Tax  Com-  various  amendments. 

missioners,  1(H)  U.  S.  '.  50  L.  ed.  <'>■", 

750 


§   426  TAXATION    OF    FRANCHISES 

joint-stock  company  and  association  liable  to  taxation  there- 
under shall  be  the  amount  of  capital  stock  employed  within 
this  State,"  as  construed  by  the  highest  court  of  that  State, 
are  not  repugnant  to  the  Constitution  of  the  United  States.87 
And  as  the  tax  law  of  1899  of  that  State 88  contains  proper 
provisions  for  certiorari  and  review  of  the  assessments,  it  does 
not  deny  to  the  holders  of  the  franchises  due  process  of  law 
in  the  valuation  and  assessment  of  the  franchises,  because  the 
tangible  and  intangible  property  of  the  corporation  is  valued 
as  a  totality  or  because  it  does  not  give  sufficient  notice.89 
The  taxation  of  cars  under  the  New  York  franchise  tax  law, 
belonging  to  a  New  York  corporation,  is  not  unconstitutional 
as  depriving  the  owner  of  its  property  without  due  process  of 
law  because  the  cars  are  at  times  temporarily  absent  from  the 
State — it  appearing  that  no  cars  permanently  without  the 
State  are  taxed.90  If  a  state  statute  requires  every  corpora- 
tion, person  or  association  operating  a  railroad  within  the 
State  to  pay  an  annual  tax  for  the  privilege  of  exercising  its 
franchises  therein,  to  be  determined  by  the  amount  of  its 
gross  transportation  receipts,  and  further  provides  that,  when 
applied  to  a  railroad  lying  partly  within  and  partly  without 
the  State,  or  to  one  operated  as  a  part  of  a  line  or  system 
extending  beyond  the  State,  the  tax  shall  be  equal  to  the 
proportion  of  the  gross  receipts  in  the  State,  to  be  ascertained 
in  the  manner  provided  by  the  statute,  it  does  not  conflict 
with  the  Constitution  of  the  United  States ;  and  the  tax  thereby 
imposed  upon  a  foreign  corporation,  operating  a  line  of  rail- 
way, partly  within  and  partly  without  the  State,  is  one  within 
the  power  of  the  State  to  levy.91    As,  however,  a  State  cannot 

87  New  York  v.  Roberts,  171  U.  S.    199  U.  S.  48,  50  L.  ed.  79,  25  Sup.  Ct. 
658,  19  Sup.  Ct.  235,  43  L.  ed.  345,    713. 

5  Det.  L.  N.,  No.  41,  31  Chic.  Leg.  90  New  York  Central  &  H.  R.  Rd. 

News,  111,  119,  129,  17  Nat.  Corp.  Co.  v.  Miller,  202  U.  S.  584,  50  L. 

Rep.  677.  ed.  — ,  26  Sup.  Ct.  — . 

88  As  amended  May  26,  1S99,  c.  712,  "Maine     v.    Grand     Trunk     Ry. 
p.  1589.  Co.,  142  U.  S.  217,  35  L.  ed.  994,  12 

89  Brooklyn  City  Rd.  Co.  v.  New  Sup.  Ct.   121,  163,  48  Am.  &  Eng. 
York  State  Board  of  Tax  Commrs.,  R.  Cas.  602,  11  Ry.  &  Corp.  L.  J.  52. 

760 


TAXATION    OF   FRANCHISES  §    427 

directly  tax  tangible  property  permanently  outside  the  State 
and  having  no  situs  within  the  State,  it  cannot  attain  the 
same  end  by  taxing  the  enhanced  value  of  the  capital  stock 
of  a  corporation  which  arises  from  the  value  of  the  property 
beyond  its  jurisdiction.  And  the  collection  of  a  tax  on  a  cor- 
poration on  its  capital  stock  based  on  a  valuation  which  in- 
cludes property  situated  out  of  the  State  would  amount  to  the 
taking  of  property  without  due  process  of  law  and  can  be  re- 
strained by  the  Federal  courts.92 

§  427.  Franchise  Tax— Capital  Stock— Gross  Receipts — 
Additional  Franchise — Interstate  Commerce. — The  statute  of 
New  York 93  imposes  a  tax  upon  corporations  for  the  privilege 
of  exercising  their  corporate  franchises  or  carrying  on  their 
corporate  business  within  the  State,  and  it  is  based  upon  the 
amount  of  capital  stock  which  is  employed  within  the  State,  and 
it  is  held  to  apply  notwithstanding  the  capital  stock  is  used  in 
a  business  which  is  in  the  nature  of  commerce  between  States. 
Thus  it  is  held  that  a  foreign  corporation  doing  business  in  New 
York,  from  which  it  negotiates  sales  of  the  products  of  mines 
situated  in  other  States  and  collects  the  proceeds  of  the  sales, 
is  doing  business  in  that  State  so  as  to  subject  it  to  a  franchise 
tax  within  the  intent  of  the  statute;  nor  can  it,  in  order  to 
avoid  taxation,  successfully  contend  that  it  is  wholly  engaged 
in  interstate  commerce  because  the  products  sold  by  it  must 
all  be  transported  from  a  foreign  State  into  the  taxing  State 
and  other  States  where  purchasers  are  found.94    Another  sec- 

Cited  in  McHenry  v.  Alford,  168  U.  S.  38  L.  cd.  773,  14  Sup.  Ct.  865;  Fick- 

651,  670,  42  L.  ed.  614,  18  Sup.  Ct.  Ion  v.  Shelby  County,  145  U.  S.  1, 

242;  Adams  Express  Co.  v.  Ohio,  165  23,  36  L.  ed.  601,  12  Sup.  Ct.  810. 

C.  S.   101,  220,  17  Sup.  Ct.  305,  41  °2  Delaware   &   L.   W.   Rd.   Co.   v. 

L.  ed.  683;  Western  Union  Teleg.  Co.  Pennsylvania,  198  U.  S.  341,  49  L. 

v.  Taggart,  163  U.  S.  1,  21,  16  Sup.  ed.  1077,  25  Sup.  Ct.  669. 

Ct.  1054,  41  L.  ed.  49;  New  York,  L.  93  Laws   1896,   chap.   908,    §§181, 

E.  &  W.  R.  Co.  v.  Pennsylvania,  158  182,    as    amended    by    Laws    1901, 

U.   S.  431,  440,  39  L.  ed.   1043,   15  chap.  558;  since  amended  by  Laws 

Sup.  Ct.  896;   Pittsburg,  C.  C.  &  St.  1906,  p.  1195,  chap.  474,  and  Laws 

L.  R.  Co.  v.   Backus,  154  U.  S.  421,  1907,  p.  1726,  chap.  734. 

431,  14  Sup.  Ct.  1114,  38  L.  ed.  1031;  91  People  ex  rel.  Union  Sulphur  Co. 

Ashley  v.  Ryan,  153  U.  S.  436,  446,  v.  Glynn,  125  App.  Div.  328.     See 

761 


§   427  TAXATION    OF   FRANCHISES 

tion  of  the  tax  law  in  the  same  State  provides  for  an  additional 
franchise  tax  on  transportation  and  transmission  corporations 
and  associations,  requiring  every  corporation  and  joint-stock 
association  formed  for  steam  surface  railroad,  canal  steam- 
boat, ferry,  express,  navigation,  pipe-line,  transfer,  baggage 
express,  telegraph,  telephone,  palace  car  or  sleeping  car  pur- 
poses, to  pay,  for  the  privilege  of  exercising  its  corporate 
franchises  or  carrying  on  its  business  in  such  corporate  or 
organized  capacity  in  the  State,  an  annual  excise  tax  or  license 
fee  equal  to  a  certain  proportionate  part  of  a  specified  per 
centum  upon  its  gross  earnings  within  the  State,  which  shall 
include  its  gross  earnings  from  its-  transportation  or  transmis- 
sion business  originating  and  terminating  within  the  State, 
but  not  including  earnings  derived  from  business  of  an  inter- 
state character.95  Under  this  section  a  terminal  railroad  com- 
pany operating  a  grain  elevator  and  a  freight  warehouse,  and 
a  number  of  railroad  tracks,  which  tracks  were  used  to  afford 
access  to  such  elevator  and  warehouse  by  cars  owned  by  other 
corporations,  and  whose  business  was  entirely  transacted 
within  the  State,  is  not  subject  to  the  additional  franchise  tax 
so  imposed.  As«the  business  of  the  corporation  is  connected 
with  interstate  commerce,  its  earnings  are  "earnings  derived 
from  business  which  is  of  an  interstate  character,"  within  the 
meaning  of  the  statutes  which  forbid  the  imposition  of  any  tax 
upon  the  business  of  interstate  commerce.96  So  earnings  de- 
Pennsylvania  Rd.  Co.  v.  Knight,  192  chise  tax  on  waterworks  companies, 
U.  S.  21,  48  L.  ed.  325,  24  Sup.  Ct.  gas  companies,  electric  or  steam 
202;  People  ex  rel.  Burke  v.  Wells,  heating,  lighting  and  power  com- 
95  N.  Y.  Supp.  100,  107  App.  Div.  panies  (since  amended  by  Laws  1907, 
15,  aff'd  184  N.  Y.  275,  77  N.  E.  19.    p.  1726,  chap.  734). 

85  N.  Y.  Tax  Law;  Laws  1896,  96  People  ex  rel.  Connecting  Ter- 
chap.  908,  §  184  (since  amended  by  minal  R.  Co.  v.  Miller,  178  N.  Y.  194, 
Laws  1907,  p.  1726,  chap.  734).  70  N.  E.  472,  rev'g  82  N.  Y.  Supp. 
This  statute  includes  also  all  other  582,  84  App.  Div.  174.  As  to  fran- 
corporations  not  liable  to  taxes  un-  chise  tax  case  is  under  Laws  1880, 
der  §  185;  which  provides  for  a  fran-  chap.  542,  §  6;  Laws  1881,  chap.  361, 
chise  tax  on  elevated  or  surface  rail-  Laws  1896,  chap.  908,  §  184;  as  to 
roads  not  operated  by  steam  (as  interstate  commerce,  see  Laws  1894, 
amended  by  Laws  1906,  chap.  474);  chap.  562,  §  11,  Laws  1896,  chap, 
and  §  186,  which  provides  for  a  fran-   908,  §  184. 

762 


TAXATION   OF   FRANCHISES  §   427 

rived  by  a  railroad  company  for  the  transportation  of  express 
freights,  either  shipped  from  counties  in  the  State  for  delivery 
out  of  the  State,  or  from  counties  out  of  the  State  for  delivery 
within  the  State,  are  "earnings  derived  from  business  of  an 
interstate  character,"  and  are  therefore  not  taxable  under  this 
section.97  Under  the  same  section  of  the  New  York  statute  a 
foreign  corporation  engaged  in  the  business  of  a  common 
carrier  outside  of  the  State  of  New  York,  in  carrying  passen- 
gers to  and  from  New  York  City,  whose  terminus  in  New  Jersey 
is  Jersey  City,  from  which  it  conveys  its  New  York  passengers 
by  ferry  boats  to  various  stations  in  New  York  City,  and 
which  maintains  a  cab  service  at  one  of  its  ferry  stations,  is 
taxable  upon  the  capital  employed  in  the  maintenance  of  such 
cab  service,  since  such  service  is  not  a  part  of  or  an  incident  to 
the  interstate  commerce  of  the  railroad.98  Again,  where  a  state 
franchise  tax  is  imposed  on  the  gross  receipts  of  fidelity  and 
guaranty  companies  incorporated  in  the  State  and  doing  busi- 
ness therein,  and  also  upon  all  corporations  of  like  kind  do- 
ing business  in  the  State,  it  is  held  that  interstate  business 
is  not  included  and  the  tax  is  limited  to  gross  receipts  on 
intrastate  business.99  A  state  tax  may  be  imposed  upon  re- 
ceipts for  the  mileage  within  the  State,  of  a  railroad  cor- 
poration, incorporated  under  the  state  laws,  on  account  of 
transportation  done  by  it  from  one  point  within  the  State  to 
another  point  within  it,  but  passing  during  the  transportation 
without  the  State  and  through  part  of  another  State  and 
such  tax  is  not  a  tax  upon  interstate  commerce,  and  does  not 
infringe  the  provisions  of  the  Federal  Constitution.1 

g7  People  ex  rel.  New  York  Central  "  State  v.  United  States  Fidelity 

&  H.  R.  Rd.  Co.  v.  Miller,  88  N.  Y.  &  Guaranty  Co.   of   Bait.   City,  93 

Supp.  373,  94  App.  Div.  587.  Md.  314,  48  Atl.  918;  Code,  art.  81, 

*8  People  ex  rel.  Pennsylvania  Ry.  §  146,  as  am'd  by  Act  1896,  c.  120. 

Co.  v.  Knight,  73  N.  Y.  Supp.  790,  '  Lehigh  Valley  R.  Co.   v.   Penn- 

67  App.  Div.   398,  aff'd  171   N.  Y.  sylvania,  145  U.  S.  192,  12  Sup.  Ct. 

354,  64  N.  E.  152,  and  in  Pennsyl-  Rep.  806,  809,  36  L.  cd.  672,  676,  45 

vania  Rd.  Co.  v.  Knight,  192  U.  S.  Alb.  I,.  J.  511,  11  Ry.  &  Corp.  L.  J. 

21,  48  L.  ed.  325,  24  Sup.  Ct.  202;  302.     See  Galveston,  H.  &  S.  A.  Ry. 

under  N.  Y.  Tax  Law;  Laws  1896,  Co.  v.  State  (Tex.  Civ.  App.),  93  S. 

chap.  908,  §  184.  W.   464,   reversed  in   State  v.   Gal- 

763 


§    428  TAXATION    OF    FRANCHISES 

§  428.  Franchise  Tax— Capital  Stock— Who  Liable— Gen- 
erally.— The  New  York  statute  imposing  a  franchise  tax 
for  the  privilege  of  doing  business  or  exercising  a  corporate 
franchise  in  the  State  2  must  be  confined  in  its  operation  to 
domestic  corporations.  As  to  foreign  corporations  the  tax  is 
imposed  solely  on  business,  and  two  conditions  are  necessary: 
First,  that  the  corporation  shall  be  doing  business  within  the 
State;  and,  second,  employing  capital  within  the  State.3  It 
is  also  held  in  Kansas  that  the  power  to  levy  a  tax  on  the 
capital  stock  of  a  corporation  is  limited  to  the  State  of  its  dom- 
icile even  though  it  conducts  its  principal  business  in  another 
State.4  Where  the  purpose  of  incorporation  of  a  company  in- 
cludes a  general  business  in  the  purchase,  sale  and  exchange 
of  real  estate,  with  power  to  erect  and  manage  buildings,  and 
to  purchase  and  sell  mortgages  and  the  stocks  and  bonds  of 
other  corporations,  such  company  is  subject  to  a  franchise  tax 
in  New  York.5  So  a  domestic  corporation  which  owns  and 
operates  an  apartment  house,  situated  in  that  State,  is  em- 
ploying its  capital  stock  within  the  State  so  as  to  be  taxable 
on  its  franchise.6    A  foreign  corporation  doing  business  in  the 

veston,  H.   &  S.  A.  Ry.  Co.  (Tex.,  St.   Rep.   859;   People  v.   Equitable 

1906),  97  S.  W.  71,  under  Laws  1905,  Trust  Co.  of  New  London,  96  N.  Y. 

p.  336,  c.  141.  387. 

2  Tax  Law;  Laws  1896,  chap.  908,  4  Foster-Cherry  Commission  Co.  v. 
§  182,  as  am'd  by  Laws  1901,  chap.  Caskey,  66  Kan.  600,  72  Pac.  268. 
558,  and  Laws  1906,  p.  1195,  chap.  5  People    ex    rel.    Fourteenth    St. 
474,  and  since  by  Laws  1907,  p.  1726,  Realty  Co.  v.  Kelsey,  97  N.  Y.  Supp. 
chap.  734.  197,  110  App.  Div.  797,  aff'd  (mem.) 

3  People  ex  rel.  Chicago  Junction  184  N.  Y.  572,  77  N.  E.  1194,  under 
Rys.  &  Union  Stockyards  Co.  v.  N.  Y.  Tax  Law;  Laws  1896,  p.  908, 
Roberts,  154  N.  Y.  1,  47  N.  E.  974,  §  182.  Examine  People  ex  rel.  Wall 
rev'g  90  Hun,  474,  70  N.  Y.  St.  Rep.  &  Hanover  St.  Realty  Co.  v.  Miller, 
640,  35  N.  Y.  Supp.  968;  People  ex  181  N.  Y.  328,  73  N.  E.  1102,  aff'g 
rel.  Harlin  &  Hollingsworth  Co.  v.  98  App.  Div.  584,  90  N.  Y.  Supp. 
Campbell,  139  N.  Y.  -68,  54  N.  Y.  755.  Compare  People  ex  rel.  Ft. 
St.  Rep.  451,  34  N.  E.  753,  rev'g  George  Realty  Co.  v.  Miller,  179  N.  Y. 
49  N.  Y.  St.  Rep.  917,  22  N.  Y.  Supp.  49,  71  N.  E.  463,  rev'g  90  App.  Div. 
1111;  People  ex  rel.  American  Con-  588,  86  N.  Y.  Supp.  420. 
tracting  &  D.  Co.  v.  Wemple,  129  6  People  ex  rel.  Hubert  Apartment 
N.  Y.  558,  42  N.  Y.  St.  Rep.  400,  29  Assoc,  v.  Kelsey,  96  N.  Y.  Supp.  745, 
N.  E.  812,  aff'g  60  Hun,  225,  38  N.  Y.  110  App.  Div.  617,  aff'd  (mem.)  184 

764 


TAXATION  OF  FRANCHISES  §  429 

State  of  New  York  and  acting  as  a  holding  corporation  of  the 
capital  stock  of  constituent  companies  is  subject  to  a  franchise 
tax  on  money  so  invested,  that  being  the  purpose  of  the  cor- 
poration. And  although  such  corporation  acts  as  the  buying 
agent  of  constituent  companies  without  charge,  it  cannot 
avoid  taxation  upon  the  theory  that  it  is  not  doing  business 
for  a  profit  and  that  its  capital  is  not  employed  in  New  York, 
for  its  profit  consists  in  dividends  on  the  stock  held  by  it.7 
A  foreign  corporation  by  becoming  a  special  partner  in  New 
York  also  employs  capital  there.8  Again,  a  race-track  asso- 
ciation may  be  liable  to  a  franchise  tax  where  it  exercises  a 
special  or  exclusive  privilege  or  franchise  not  allowed  by  law 
to  natural  persons.9  If  a  non-resident  enters  into  the  business 
of  loaning  money  within  a  State  and  employs  a  local  agent 
to  conduct  the  business,  the  State  may  tax  the  capital  em- 
ployed precisely  as  it  taxes  the  capital  of  its  own  citizens, 
in  like  situation,  and  may  assess  the  credits  arising  out  of  the 
business,  and  the  foreigner  cannot  escape  taxation  upon  his 
capital  by  temporarily  removing  from  the  State  the  evidences 
of  credits  which,  under  such  circumstances,  have  a  taxable 
situs  in  the  State  of  their  origin.  Loans  made  by  a  New  York 
life  insurance  company  on  its  own  policies  in  Louisiana  are 
taxable  in  that  State  although  the  notes  may  be  temporarily 
sent  to  the  home  office.10 

§  429.  Franchise   Tax— Capital   Stock— Who   not   Liable 
— Generally. — Under  the  New  York  statute  n  a  corporation 

N.  Y.  573,  77  N.  E.  1194;  under  §  182  8  People  ex  rel.  Badische  Aniiin  & 

of  N.  Y.  Tax  Law,  cited  in  last  note.  Soda  Fabrik  v.  Roberts,  152  N.  Y.  59, 

7  People  ex  rel.  Manhattan  Silk  Co.  46  N.  E.  161 ,  aff'g  11  App.  Div.  310,  76 

v.  Miller,  125  App.  Div.  296,  citing  N  Y.  St.  Rep.  502,  42  N.Y.  Supp.  502. 

People  ex  rel.  North  American  Co.  v.  9  Latonia  Agricultural  &  S.  Assoc. 

Miller,  90  App.  Div.  560,  aff'd  182  v.  Donnelly,  20  Ky.  L.  Rep.  1891,50 

N.  Y.  521;  under  §  181  of  N.  Y.  Tax  S.  W.  251. 

Law;     Laws    1896,    chap.     908,    as  I0  Metropolitan    Life    Ins.    Co.    of 

amended  by  Laws  1901,  chap.  558.  New  York  v.  City  of  New  Orleans, 

Also  under  §  182,  of  N.  Y.  Tax  Law,  205  U.  S.  395,  51  L.  ed.  853,  27  Sup. 

as  amended  by  Laws  1901,  chap.  558.  Ct.  499,  aff'g  115  La.  698. 

See  Laws  1907,  p.  1726,  chap.  734;  "  Tax  Law;  Laws  1896,  chap.  908, 

Laws  1906,  p.  1195,  chap.  474.  §  182. 

765 


§   430  TAXATION    OF    FRANCHISES 

composed  only  of  tenants  in  common  of  unimproved  city  real 
estate  and  organized  solely  for  the  purpose  of  taking  title  to 
the  property  so  as  to  raise  funds  by  mortgage  thereon  to  pay 
past  due  mortgages,  taxes  and  assessments  on  the  property 
and  hold  the  same  until  it  can  be  sold  for  such  a  price  that 
the  owners  thereof  may  obtain  something  for  their  interest 
therein,  is  not  liable  to  the  franchise  tax  imposed  by  the 
statute,  since  the  stock  of  such  corporation  is  not  capital 
"employed  within  this  State"  within  the  meaning  of  the 
statute.12  When  corporate  real  estate  has  been  condemned 
and  the  receipts  of  the  award  distributed,  after  payment  of  the 
debts  of  the  corporation,  in  a  sum  which  exceeds  the  'par  value 
of  the  capital  stock,  and  the  surplus  arises  from  the  increment 
in  the  value  of  such  real  estate  increased  by  interest  upon  the 
award,  a  franchise  tax  cannot  be  assessed  upon  such  excess  as 
a  dividend.13 

§  430.  Taxation  of  Intangible  Property  of  Interstate 
Bridge — Constitutional  Law.— A  railroad  bridge  across  a 
navigable  river  forming  the  boundary  line  between  two  States 
is  not,  by  reason  of  being  an  instrument  of  interstate  com- 
merce, exempt  from  taxation  by  either  State  upon  the  part 
within  it.14  And  the  power  of  a  State  to  tax  an  interstate 
bridge  is  not  affected  by  the  fact  that  it  was  erected  under 
the  authority  or  with  the  consent  of  Congress.  So  a  municipal- 
ity, which  has  authority  from  the  legislature  so  to  do,  may 
tax  so  much  of  the  property  of  a  bridge  company  owning  such 
a  bridge  as  is  permanently  between  low-water  mark  on  the 
shore  of  a  State  on  the  other  side  of  a  river  and  low-water 
mark  on  the  shore  of  its  own  State,  where  it  is  settled  that 
the  boundary  of  its  own  State  extends  to  low-water  mark  on 

12  People  ex  rel.  Ft.  George  Realty  13  People  ex  rel.  Jerome  Park  Villa 

Co.  v.  Miller,  179  N.  Y.  49,  71  N.  E.  Site  &  S.  I.  Co.  v.  Roberts,  58  N.  Y. 

463,  rev'g  90  App.  Div.  588,  86  N.  Y.  Supp.  254,  41  App.  Div.  21. 

Supp.  420,  Distgd.  in  People  ex  rel.  "Pittsburg,   C.   C.  &   St.   L.   Ry. 

Wall  &  Hanover  St.  Realty  Co.  v.  Co.  v.  Board  of  Public  Works,  West 

Miller,    181    N.    Y.    328,  73    N.   E.  Virginia,  172  U.  S.  32,  43  L.  ed.  354, 

1102.  19  Sup.  Ct.  90. 

766 


TAXATION    OF    FRANCHISES  §§    431,  432 

the  other  shore  of  the  river  on  the  line  of  the  other  State. 
And  the  taxation  by  the  city  as  property  of  the  bridge  com- 
pany, of  the  bridge  and  its  appurtenances  within  the  fixed 
boundary  of  the  city,  between  low-water  mark  on  the  two 
sides  of  a  river,  is  not  a  taking  of  private  property  for  public 
use  without  just  compensation,  in  violation  of  the  Federal 
Constitution.15 

§  431.  Taxation  of  Ferry  Franchise— Legal  Situs  of 
Property— Constitutional  Law. — A  franchise  granted  by  the 
proper  authorities  of  Indiana,  for  maintaining  a  ferry  across 
the  Ohio  River  from  the  Indiana  shore  to  the  Kentucky  shore, 
is  an  incorporeal  hereditament  derived  from,  and  having  its 
legal  situs  for  purposes  of  taxation  in  Indiana.  The  fact  that 
such  franchise  was  granted  to  a  Kentucky  corporation,  which 
held  a  Kentucky  franchise  to  carry  on  the  ferry  business  from 
the  Kentucky  shore  to  the  Indiana  shore  (the  jurisdiction  of 
Kentucky  extending  only  to  low-water  mark  on  the  northern 
and  western  side  of  the  Ohio  River),  does  not  bring  the  Indiana 
franchise  within  the  jurisdiction  of  Kentucky  for  purposes  of 
taxation.  The  taxation  of  the  Indiana  franchise  by  Kentucky 
would  amount  to  a  deprivation  of  property  without  due 
process  of  law,  in  violation  of  the  provisions  of  the  Fourteenth 
Amendment.  Quaere ,  whether  such  taxation  would  be  such 
a  burden  on  interstate  commerce  as  to  make  it  inconsistent 
with  the  power  of  Congress  to  regulate  commerce  among  the 
several  States,  was  not  decided.16 

§  432.  Franchise   Tax — Telegraph  Companies— Constitu- 
tional Law.17 — A  tax  may  be  levied  in  the  form  of  a  franchise 

15  Henderson   Bridge  Co.   v.   Hen-  Q.  It.  Co.  v.  Cass   County,   51    Neb. 

derson  City,  173  U.  8.  592,  43  L.  ed.  369,    70    N.    W.    955.       See    §  429, 

823,  19  Sup.  Ct.  553;  173  U.  S.  624,  herein. 

43  I.,  ed.  835,  19  Sup.  Ct.  545,  877;  "Louisville  &  Jeffersonville  Ferry 

Henderson  Bridge  Co.  v.  Kentucky,  Co.  v.  Kentucky,  188  U.  S.  385,  23 

166  U.  S.  150,  41  L.  ed.  953,  17  Sup.  Sup.   Ct.   463,  47    L.   ed.   513.     See 

Ct.  532.     Examine  Chicago,  B.  &  Q.  §428,   herein.     See  also  as  to  situs 

R.  Co.   v.   Nebraska  City,   53   Neb.  §  438,  herein. 

453,  73  N.  W.   952;   Chicago,  B.  &  17  See  §  425,  herein,  as  to  additional 

767 


§    433  TAXATION    OF   FRANCHISES 

tax,  though  a  privilege  tax  imposed  in  lieu  of  all  other  taxes.18 
But  a  state  tax  upon  the  franchise  of  a  telegraph  company 
covers  all  its  intangible  property,  rather  than  its  corporate 
franchises  as  technically  defined.19  A  state  statute,  requiring 
a  telegraph  company  to  pay  a  tax  upon  its  property  within 
the  State,  valued  at  such  a  proportion  of  the  whole  value  of 
its  capital  stock  as  the  length  of  its  lines  within  the  State 
bears  to  the  length  of  all  its  lines  everywhere,  deducting  a 
sum  equal  to  the  value  of  its  real  estate  and  machinery  sub- 
ject to  local  taxation  within  the  State,  is  constitutional  and 
valid,  notwithstanding  that  nothing  is  in  its  terms  directed 
to  be  deducted  from  the  valuation,  either  for  the  value  of  its 
franchises  from  the  United  States,  or  for  the  value  of  its  real 
estate  and  machinery  situated  and  taxed  in  other  States; 
unless  there  is  something  more  showing  that  the  system  of 
taxation  adopted  is  oppressive  and  unconstitutional.20 

§  433.  Franchise  Tax — Tax  on  Gross  Receipts— Street 
Railroads. — Under  the  Kentucky  constitution  an  ad  valorem 
tax  may  be  imposed  upon  a  street  railway  company's  fran- 
chise.21    So,  a  tax,  for  maintenance  of  parks,  imposed  upon 

franchise  tax  on  transportation  and  Co.  v.  Missouri  ex  rel.  Gottlieb,  190 

transmission  companies.  U.  S.  412,  23  Sup.  Ct.  730,  47  L.  ed. 

18  Postal  Teleg.  Cable  Co.  v.  Adams,  1116;  Western  Union  Teleg.  Co.  v. 
155  U.  S.  688,  39  L.  ed.  311,  15  Sup.  Massachusetts,  125  U.  S.  530,  31  L. 
Ct.  268,  360,  5   Am.  Elec.   Cas.  636,  ed.  790,  8  Sup.  Ct.  961. 

645.  Tax  on  gross  amount  of  the  receipts 

19  Western  Union  Teleg.  Co.  v.  of  telegraph  company  derived  from 
Norman  (C.  C),  77  Fed.  13.  business  done  by  it  within  the  State, 

As    to   taxation   of    telegraph,    etc.,  when  a  regulation  of  commerce  and 

companies   and   their   franchises,   see  unconstitutional,  see  Western  Union 

Joyce    on    Electric    Law    (2d    ed.),  Teleg.   Co.    v.   Alabama,   132   U.    S. 

§§  85  et  seq.,  911  et  seq.  472,  10  Sup.  Ct.  161,  33  L.  ed.  409. 

20  Western  Union  Teleg.  Co.  v.  See  State  v.  Fleming  (Neb.,  1903), 
Taggart,  163  U.  S.  1,16  Sup.  Ct.  1054,  97  N.  W.  1063;  Neb.  Sess.  Laws, 
41  L.  ed.  49.    Cited  in  Adams  Express  c.  73,  §  78. 

Co.  v.  Ohio,  166  U.  S.  185,  223,  17  2I  South   Covington   &   C.    St.    R. 

Sup.  Ct.   604,   41    L.   ed.   965;   s.  c,  Co.  v.  Bellevue,  20  Ky.  L.  Rep.  1184, 

165  U.  S.  194,  220,  248   (in  dissent-  49  S.  W.  23;  Ky.  Const.,  §  174. 

ing  opinion),  41  L.  ed.  683,  17  Sup.  As   to   franchises   appurtenant   to 

Ct.  305.     See  Western  Union  Teleg.  use  of  street  railway  property  being 

768 


TAXATION    OF   FRANCHISES  §    434 

the  gross  receipts  of  a  street  railway  company,  is  a  franchise 
tax  in  consideration  of  the  privilege  granted  to  run  cars  upon 
the  city  streets  subject  to  the  control  of  the  city.  In  case, 
however,  of  a  railway  not  occupying  any  street  within  the 
city's  control,  but  operating  within  extended  limits  of  the 
city,  and  acquiring  its  right  by  purchase  to  use  a  turnpike 
upon  which  it  operated  a  suburban  railway,  it  is  not  liable  to 
such  tax.22  Street  railways  are  not  included  in  the  term 
"railroads"  under  a  constitutional  requirement  for  the  taxa- 
tion of  the  franchises,  etc.,  of  railroads,  since  there  exists  a 
difference  in  the  nature  of  their  franchises,  especially  where 
the  value  of  the  different  portions  of  a  street  railway  line 
varies  in  consequence  of  the  varying  density  of  population  of 
the  localities  through  which  the  line  runs,  and  the  constitu- 
tional requirement  also  makes  the  assessment  at  the  actual 
value  in  proportion  to  the  number  of  miles  of  railroad  laid  in 
the  different  counties,  etc.23  The  difference  between  surface 
street  railroads  and  subsurface  street  railroads  is  sufficient  to 
justify  classification  in  the  mode  and  extent  of  taxation,  and 
a  tax  otherwise  legal  on  surface  street  railroad  franchises  does 
not  deprive  the  owners  thereof  of  the  equal  protection  of  the 
laws  because  subsurface  street  railroad  franchises  are  not  sub- 
jected to  a  similar  tax.24 

§  434.  Franchise  Tax  -Water  Companies. — Where  a  stat- 
ute requires   all   property   in   the  State  to  be  taxed  unless 

subject  to  separate  tax,   see   Dallas  Pac.  575.     See  Cedar  Rapids  &  M. 

Consol.  Electric  Ry.  Co.   v.  City  of  C.  R.  Co.  v.  Cedar  Rapids,  106  Iowa, 

Dallas   (Tex.   Civ.   App.),   65   S.   W.  476,  76  N.  W.  728.     Compare  Blox- 

201,  reversed  in  Dallas,  City  of,  v.  ham   v.  Consumers'  E.  L.  &  St.  R. 

Dallas  Consol.  Electric  Ry.  Co.  (Tex.  Co.,  36  Fla.  519,  18  So.  444,  51  Am. 

Sup.),  66  S.  W.  835.  St.  Rep.  44,  29  L.  R.  A.  507;  Phila- 

22  Park  Tax  Case  (Mayor  &  City  dclphia,  City  of,  v.  Philadelphia 
Council  of  Baltimore  v.  Baltimore,  Traction  Co.,  206  Pa.  35,  55  All. 
Catonsville  A-  Ellicotts  Mills  Passgr.  762. 

Rd.  Co.),  84  Md.   1,  35  Atl.   17,  33  "Metropolitan     St.    Ry.    Co.     v. 

L.  R.  A.  503.  New  5fork  State  Board  of  Commrs., 

23  San  Francisco  &  S.  M.  Electric  199  U.S.I,  50  L.  ed.  65,  25  Sup.  Ct. 
Ry.  Co.  v.   Scott,   142  Cal.  222,  75  705. 

49  769 


§    435  TAXATION    OF    FRANCHISES 

exempt  from  taxation  the  franchises  of  a  water  company  may 
be  included.25  So  tangible  and  intangible  property  combined 
create  a  value  constituting  a  basis  for  the  taxation  of  a  water- 
works company,  and  the  franchise  of  such  company  is  personal 
property  and  embraces  all  things  of  a  proprietary  nature  con- 
nected therewith.26  Where  a  city  is  so  authorized  by  its 
charter  it  may  levy  a  franchise  tax  on  a  waterworks  company, 
the  legislature  having  also  required  that  such  corporations 
should  pay  a  local  franchise  tax  to  the  municipality  wherein  a 
corporation  exercised  its  franchise.27  Under  the  Kentucky 
statutes  28  a  part  of  the  charter  of  cities  of  the  third  class, 
providing  that  "all  real  and  personal  estate  within  the  city  on 
the  tenth  day  of  January  in  the  year  in  which  the  assessment 
shall  be  made,  and  of  all  corporations  having  their  chief  office 
or  place  of  business  in  the  city  on  said  date,  and  the  franchises 
of  the  same  shall  be  subject  to  assessment  and  taxation  for 
all  local  and  municipal  purposes,"  the  franchises  of  a  water 
company,  which  has  its  chief  office  and  place  of  business  in 
the  city  of  Frankfort,  and  which,  while  furnishing  water  to 
some  persons  outside  the  city,  has  no  exclusive  privilege  except 
as  to  persons  within  the  city,  is  taxable  by  the  city,  although 
the  pumping  station,  reservoirs,  and  a  part  of  the  mains  are 
outside  the  city;  and  the  State  Board  of  Valuation  has  no 
power  29  to  apportion  the  valuation  of  the  franchise  between 
the  city  and  the  taxing  districts  outside  the  city,  as  the  power 
of  apportionment  conferred  by  the  statute  30  applies  only  to 
the  carriers  named  under  another  section  thereof,31  which 
fixes  the  basis  of  apportionment.32 

§  435.  Franchise  Tax — Gross  Receipts — Dividends — Gas 
and  Electric  Light  and  Power  Companies. — In  New  Jersey 

25  Fond    du     Lac    Water    Co.     v.  2530,  74  S.  W.  685,  rehearing  denied 

Fond  du  Lac,  82  Wis.  322,  52  N.  W.  in   25   Ky.   L.   Rep.   434,   75   S.   W. 

439,  16  L.  R.  A.  581.  268. 

28  Washburn,   Town   of,   v.   Wash-  28  §  3374. 

burn  Waterworks  Co.  (Wis.),  98  N.  29  Under  Ky.  Stat.,  §  4077. 

W.  539;  Rev.  Stat.,  1898,  §  1037a.  30  Ky.  Stat.,  §  4077. 

27Owensboro    Waterworks   Co.    v.  31  Ky.  Stat.,  §4081. 

City  of  Owensboro,  24  Ky.  L.  Rep.  32  Board  of  Councilmen  of  City  of 

770 


TAXATION    OF    FRANCHISES  §    436 

the  franchise  tax  required  to  be  paid  by  a  gas  and  electric 
company,  which  exercises  a  municipal  franchise,  is  based  not 
merely  upon  the  receipts  from  exercising  such  municipal  fran- 
chise, but  upon  the  actual  gross  receipts  of  its  entire  business.33 
But  "dividends  earned  and  declared"  do  not  include  profits 
or  earnings  used  for  betterment  of  a  gas  company's  plant, 
although  the  percentage  required  to  be  paid  for  a  franchise 
tax  is  based  upon  gross  receipts  and  upon  such  dividends.34 
In  Pennsylvania  gross  receipts  for  the  purpose  of  taxation  in- 
cludes receipts  derived  by  an  electric  light  company  from 
furnishing  power  to  other  companies  and  from  sales  of  electric 
supplies.35  A  franchise  tax  may  be  levied  upon  an  electric 
light  and  power  company,  which  exercises  its  privilege  to  use 
city  streets,  even  though  the  state  constitution  only  authorizes 
the  taxation  of  real  and  personal  property  and  no  statutory 
provision  exists  for  ascertaining  the  value  of  franchises.36 
It  is  also  held,  however,  that  where  a  statute  only  provides  for 
a  tax  on  the  value  of  a  gas  company's  property  its  franchise 
is  not  taxable.37  A  gas  and  electric  company  formed  by  con- 
solidation and  merger  is  liable  to  a  state  franchise  tax  in  New 
Jersey  even  though  some  of  the  original  companies  had  never 
exercised  their  corporate  franchises.38 

§  436.  Franchise  Tax — Insurance  Companies. — Where  the 
obvious  intent  of  a  statute  is  to  impose  a  tax  upon  corpora- 
tions, a  large  class  of  which  it  enumerates,  exercising  some 
special  or  exclusive  privilege  or  franchise  not  allowed  by  law 

Frankfort  v.  Stone,  108  Ky.  400,  22  trie  Light  Co.,  204  Pa.  249,  53  All. 

Ky.  L.  Rep.  25,  56  S.  W.  679.  1096;  Act  of  June  1,  1889,  §  23. 

33  Paterson  &  P.  Gas  &  Electric  Co.  30  Commercial  Electric  Light  &  P. 

v.   State   Board  of  Assessors   (N.  J.  Co.  v.  Judson,  21  Wash.  49,  56  Pac. 

Sup.),  54  Atl.  246,  aff'd  70  N.  J.  L.  829,  57  L.  R.  A.  78;  Wash.  Const., 

825,  59  Atl.  1118;  Act  of  March  23,  art.  7,  §  1;  Laws  1897,  p.  136. 

1 000.  «  Covington  Gas  Light  Co.  v.  Cov- 

31  State,  Camden  Gas  Light  Co.  v.  ington,  13  Ky.  L.  Rep.  577,  17  S.  W. 

State  Comptroller,  54  N.  J.  L.  135,  808. 

23  Atl.   122;  N.  J.  Act  of  April   18,  ^Paterson  &  P.  Gas  &  Electric  Co. 

1884.  v.   State    Board   of  Assessors   (N.  J. 

35  Commonwealth   v.    Brush   Eleo-  Sup.),   54    Atl.   246,   aff'd   70  N.  J. 

771 


§   436  TAXATION    OF    FRANCHISES 

to  natural  persons,  an  insurance  company  which  exercises  no 
such  special  or  exclusive  franchise  is  not  within  the  statute 
even  though  in  addition  to  the  enumerated  class,  "  every  other 
like  company"  is  specified  as  included.39  Foreign  mutual  life 
insurance  companies  are  within  a  statute  which  requires  that 
each  and  every  insurance  company  doing  business  in  the 
State  be  taxed  upon  the  excess  of  premiums  received  over 
losses  and  ordinary  expenses  incurred  within  the  State  during 
the  year.40  In  New  York  the  statute  requires  an  annual  state 
tax,  for  the  privilege  of  exercising  corporate  franchises  or  for 
carrying  on  business  in  their  organized  capacity  within  that 
State,  to  be  paid  by  insurance  companies,  said  tax  being  fixed 
at  a  certain  per  centum  on  the  gross  amount  of  premiums 
received  during  the  preceding  year  for  business  done  at  any 
time  within  the  State.41  Under  this  section  unearned  premi- 
ums paid  in  advance  but  refunded  upon  the  cancellation  of 
policies  are  not  to  be  included  in  the  "gross  amount  of 
premiums  received  *  *  *  for  business  done."  The  sum 
paid  out  by  an  insurance  company  to  other  companies  for 
reinsuring  its  own  risks  cannot  be  deducted  from  the  gross 
amount  of  premiums  received,  since  such  sum  is  an  expense 
of  the  business.42  The  provisions  of  this  statute  authorizing 
an  annual  tax  upon  the  gross  amount  of  premiums  received 
by  a  domestic  insurance  company  are  not  retroactive,  and  do 
not  impose  a  tax  upon  premiums  derived  from  contracts  made 
prior  to  the  time  the  statute  took  effect,  but  upon  future 
business  only.43     A  foreign  marine  insurance  company  doing 

L.  825,  59  Atl.  1118;  Act  of  March  23,  118;  Laws  1905,  chap.  94,  since  am'd 

1900,  §  4.  by  Laws  1907,  p.  1726,  chap.  734. 

39  vEtna  Life  Ins.  Co.  v.  Coulter,  25  42  People  ex  rel.  Continental  Ins. 
Ky.  L.  Rep.  193,  74  S.  W.  1050;  Ky.  Co.  v.  Miller,  177  N.  Y.  515,  70  N.  E. 
Stat.,   1899,    §  4077.  10,  modifying  85  N.  Y.  Supp.  1142, 

40  Northwestern  Mut.  Life  Ins.  Co.  90  App.  Div.  618. 

v.  Lewis  &  Clarke  County,  28  Mont.  43  People  ex  rel.  Provident  Sav- 
484,  72  Pac.  982;  Civ.  Code,  §§650-  ings  Life  Assurance  Soc.  v.  Miller, 
681.  179    N.  Y.    227,  71    N.    E.  930,  re- 

41  N.  Y.  Tax  Law;  Laws  1896,  viewing  85  N.  Y.  Supp.  468,  88 
chap.  908  §  187,  as  am'd  by  Laws  App.  Div.  218.  Compare  amendment 
1897,   chap.   494;   Laws   1901,   chap,    of  1905. 

772 


TAXATION    OF   FRANCHISES  §    437 

business  in  that  State  must  pay  the  annual  tax  of  five-tenths 
of  one  per  cent  on  the  gross  amount  of  premiums  received  for 
business  generally  within  this  State  during  each  calendar 
year.44  Such  a  company  is  not  entitled  to  a  deduction  from 
the  amount  required  to  be  paid  by  it  to  the  superintendent  of 
insurance  under  §  34  of  the  Insurance  Law.  This  is  so  be- 
cause the  amendment  of  1901  provided  that  "the  taxes  im- 
posed by  this  section  shall  be  in  addition  to  all  other  fees, 
licenses  or  taxes  imposed  by  this  or  any  other  law.45  Where 
a  policy  is  cancelled  and  unearned  premiums  are  returned  to 
the  insured  the  company  is  not  required  to  include  them  in 
its  return  of  gross  receipts;  the  tax  on  such  receipts  is  not  in 
lieu  of  all  other  taxes.46 

§  437.  Franchise  Tax — Guaranty  or  Security  Company — 
Trust  Company. — A  franchise  tax  imposed  upon  a  "guaranty 
or  security"  company,  does  not  include  an  insurance  com- 
pany.47 If,  however,  such  corporation  does  a  guaranty  or 
security  business  it  is  liable  to  a  franchise  tax  even  though  it 
is  an  insurance  company  in  name.48  Under  the  New  York 
statute  every  trust  company  incorporated,  organized  or  founded 
under,  by  or  pursuant  to  a  law  of  that  State,  and  any  com- 
pany organized  to  do  a  trust  company's  business  solely  or 
in  connection  with  any  other  business,  under  a  general  or 
special  law  of  that  State,  is  required  to  pay  to  the  State  an- 
nually for  the  privilege  of  exercising  its  corporate  franchise 
or  carrying  on  its  business  in  such  corporate  or  organized  capac- 
ity, an  annual  tax  equal  to  a  certain  specified  per  centum  on 
the  amount  of  its  capital  stock,  surplus,  and  undivided  profits.49 

**  Imposed  by  the  amendment  of       a  Mtna.  Life  Ins.  Co.  v.  Coulter,  25 

1901    to    the    above    section    of   the  Ky.  L.  Rep.  193,  71  S.  W.  1050;  Ky. 

Tux  Law.  Stat.,  1899,  §  1077,  construed  in  con- 

45  People    v.    Thames    &    Mersey  nection  with  5  723. 
Marine  Ins.  Co.,  176  N.   Y.  531,  68       "  Fidelity  &  Casualty  Co.  of  N.  V. 

N.  E.  888,  aff'g  85  App.  Div.  623,  v.  Coulter,  25  Ky.  L.  Rep.  200,  74 

83  N.  Y.  Supp.  1118.  S.  W.  1053. 

"  State  v.  Fleming  (Neb.,  1903),  97       40  N.    Y.    Tax    Law;    Laws    189G, 

X.  W.  1063;  Neb.  Sess.  Laws,  1903,  chap    908,    5  l87o;   added  by  Laws 

c.  73,  §58.  1901,  chaps.  132,  535. 

77.'! 


§    438  TAXATION    OF    FRANCHISES 

The  tax  imposed  by  this  act  upon  trust  companies  was  in- 
tended as  a  substitution  as  of  the  day  of  its  passage,  for 
all  other  taxes  upon  trust  companies.  The  act  operated  to 
relieve  a  trust  company  of  a  tax  levied  upon  it,  under  a  city 
charter  for  the  year  1901. 50  So  it  is  held  that  trust  companies 
paying  the  tax  required  by  this  section  are  entitled  to  an 
exemption  from  local  assessment  and  taxation  of  their  per- 
sonal property.51  And  when  a  trust  company  has  carried  on 
business  for  less  than  the  fiscal  year  or  tax  year,  or  for  a  fraction 
of  a  year,  the  tax  imposed  for  the  said  privilege  of  exercising 
its  corporate  franchises  in  the  State  must  be  apportioned 
accordingly.52  Where  a  trust  company  leased,  with  an  option 
to  purchase,  certain  property  owned  by  it,  and  agreed  to  pay 
all  taxes  upon  the  premises  during  the  continuance  of  the 
lease,  it  was  held  that  the  provisions  of  this  section  requiring 
a  payment  of  a  tax  of  one  per  cent  upon  the  capital  stock, 
surplus  and  undivided  profits  of  a  trust  company,  and  exempt- 
ing it  from  all  other  taxation,  did  not  operate  to  relieve  such 
company  from  the  obligation  of  paying  the  taxes  on  the  leased 
premises.53 

§438.  Franchise  Tax;  Savings  Banks.— The  charter  of  a 
bank  is  a  franchise,  which  is  not  taxable,  as  such,  if  a  price 
has  been  paid  for  it,  which  the  legislature  has  accepted  with 
a  declaration  that  it  is  to  be  in  lieu  of  all  other  taxation.54 

Nature  of  tax  so  imposed,  see  §423,  "Security  Trust  Co.  v.  Liberty 
herein.  Building  Co.,  89  N.  Y.  Supp.  340,  96 

50  Binghamton   Trust   Co.   v.  City   App.  Div.  436. 

of  Binghamton,  76  N.  Y.  Supp.  517,  54  Jefferson    Bank    v.     Shelby,    1 

72  App.  Div.  341.  Black  (66  U.  S.),  436,  17  L.  ed.  173. 

51  People  ex  rel.  Poughkeepsie  See  Gordon  v.  Appeal  Tax  Court,  3 
Trust  Co.  v.  Lane,  83  N.  Y.  Supp.  How.  (44  U.  S.)  133,  11  L.  ed.  529. 
606,  41  Misc.  1.  Cited  in  State  Bank  of  Ohio  v.  Knoop 

52  People  ex  rel.  Mutual  Trust  Co.  (Piqua,  Branch  of  the  State,  v. 
of  Westchester  County  v.  Miller,  177  Knoop),  16  How.  (57  U.  S.)  369,  386, 
N.  Y.  51,  69  N.  E.  124,  rev'g  83  N.  Y.  14  L.  ed.  977. 

Supp.  185,  85  App.  Div.  211.     Com-        Charter  and  franchise;  to  what  ex- 
pare,  however,  People  ex  rel.  Hans  tent    distinguished.       See     §§41-46, 
Rees'  Sons  v.  Miller,  86  N.  Y.  Supp.  herein. 
193,  90  App.  Div.  591. 

774 


TAXATION   OF   FRANCHISES  §   438 

In  a  Federal  case  it  appeared  that  the  legislature  of  Mary- 
land, in  1821,  continued  the  charters  of  several  banks  to 
1845,  upon  condition  that  they  would  make  a  road  and  pay 
a  school  tax.  This  would  have  exempted  their  franchise  but 
not  their  property  from  taxation.  But  another  clause  in  the 
law  provided  that  upon  any  of  the  aforesaid  banks  accepting 
of,  and  complying  with,  the  terms  and  conditions  of  the  act, 
the  faith  of  the  State  was  pledged  not  to  impose  any  further 
tax  or  burden  upon  them  during  the  continuance  of  their 
charters  under  the  act.  This  was  held  to  be  a  contract  relating 
to  something  beyond  the  franchise,  and  exempted  the  stock- 
holders from  a  tax  levied  upon  them  as  individuals,  according 
to  the  amount  of  their  stock;  but  that  the  corporate  property 
of  the  bank  was  separable  from  the  franchise  and  could  be 
taxed,  unless  there  was  a  special  agreement  to  the  contrary.55 
Under  the  constitution  and  laws  of  Massachusetts,  as  inter- 
preted by  its  highest  court,  in  two  cases  not  involving  any 
question  under  the  Judiciary  Act,  and  by  long  usage,  a  statute 
which  enacts  that  every  institution  for  saving  incorporated 
under  the  laws  of  that  commonwealth,  shall  pay  to  the  com- 
monwealth "a  tax  on  account  of  its  depositors"  of  a  certain 
percentage  "on  the  amount  of  its  deposits,  to  be  assessed, 
one-half  of  said  annual  tax  on  the  average  amount  of  its 
deposits  for  the  six  months  preceding  the  first  of  May,  and 
the  average  amount  of  its  deposits  for  the  six  months  preceding 
the  first  of  November,"  is  to  be  regarded  as  a  franchise  tax, 
not  as  a  tax  on  property,  and  is  valid.  Nor  is  there  anything 
inconsistent  with  this  view  in  the  decisions  of  the  Federal 
Supreme  Court.56  Under  a  Maryland  decision  savings  banks 
with  capital  stock  subject  to  taxation,  equally  with  those 
without  capital  stock,  are  within  the  intent  of  a  statute  im- 
posing a  franchise  tax  on  savings  banks,  institutions  or  cor- 
porations organized  for  the  purpose  of  receiving  deposits  and 

55  Gordon  v.  Appeal  Tax  Court,  3        "  Provident  Institution   v.  Massa- 
How.  (44  r.  S.)  133,  ll   L.  ed.  529.    chusetts,  6  Wall.  (73  U.  S.)  611,  18 
See  as  to  La  I  proposition  in  the  text    L.  ed.  907. 
§§  30  et  8eq.,  herein. 

775 


§    439  TAXATION    OF    FRANCHISES 

paying  interest  on  the  same.57  The  New  York  statute  pro- 
vides for  a  franchise  tax  on  savings  banks  for  the  privilege 
of  exercising  their  corporate  franchises  or  carrying  on  their 
business  in  their  corporate  or  organized  capacity.  Such  tax 
being  an  annual  one  equal  to  a  certain  per  centum  on  the  par 
value  of  the  surplus  or  undivided  earnings.58 

§  439.  Franchise  Tax— National  Banks.59— A  State  is 
wholly  without  power  to  levy  any  tax,  either  direct  or  indi- 
rect, upon  national  banks,  their  property,  assets  or  franchises, 
except  when  permitted  so  to  do  by  the  legislation  of  Con- 
gress. Section  5219  of  the  Revised  Statutes  is  the  measure  of 
the  power  of  States  to  tax  national  banks,  their  property  or 
their  franchises,  that  power  being  confined  to  a  taxation  of 
the  shares  of  stock  in  the  names  of  the  shareholders,  and  to 
an  assessment  of  the  real  estate  of  the  bank.  So  where  the 
tax  complained  of  had  been  assessed  on  the  franchise  or  in- 
tangible property  of  a  corporation,  it  was  not  within  the 
purview  of  the  authority  conferred  by  the  act  of  Congress, 
and  was,  therefore,  illegal.  And  the  taxing  law  of  a  State, 
under  the  provisions  of  which  the  above  tax  had  been  imposed, 
was,  therefore,  held  to  be  beyond  the  authority  conferred  by 
Congress  on  the  States,  and  to  be  void  for  repugnancy  to 
that  act.60  Nor  can  taxes  be  lawfully  imposed  upon  the  fran- 
chises or  intangible  property  of  a  national  bank  upon  the 
ground  that  they  may  be  regarded  as  the  equivalent  of  a  tax 
on  the  shares  of  stock  in  the  names  of  the  stockholders,  and, 
therefore,  such  imposition  of  taxes  does  not  violate  the  act 

57  Fidelity  Savings  Bank  v.  State,    sidered  under  the  section  herein,  as 
103  Md.  206,  63  Atl.  484;  Code  Pub.    to  basis  of  computation. 

Gen.  Laws,  1888,  art.  81,  §  86.  69  See  §  443;  also  §  389,  herein,  as 

58  N.    Y.    Tax    Law;    Laws    1896,  to  regulation  of  national  banks, 
chap.   908,    §1876;    added   by  Laws  60  Owensboro    National    Bank    v. 
1901,  chap.  117,  §  188,  provides  for  Owensboro,  173  U.  S.  664,  19  Sup. 
a  tax  upon  foreign  bankers.  Ct.  537,  43  L.  ed.  850. 

How    tax    is    to    be    determined,  Application    of    §  5219,    noted    in 

see  People  ex  rel.  Bank  of  Savings  v.  text.    See  Consolidated  Nat.  Bank  v. 

Miller,  177  N.  Y.  461,  aff'g  82  N.  Y.  Pima  County,  5  Ariz.   142,  48  Pac. 

Supp.   621,  84  App.   Div.   168,  con-  291. 

776 


TAXATION    OF    FRANCHISES  §    440 

of  Congress  in  that  respect;  such  contention  is  erroneous  and 
will  not  be  sustained.61  In  the  case  of  the  Bank  of  the  United 
States  it  was  held  that  it  could  not  be  taxed  by  a  State,  and 
that  any  attempt  on  the  part  of  its  agents  and  officers,  to 
enforce  the  collection  of  such  tax  against  the  property  of  the 
bank,  could  be  restrained  by  injunction  from  the  Circuit 
Court.62  Nor  can  a  State,  within  which  a  branch  of  such 
bank  may  be  established,  tax  that  branch  without  violating 
the  Constitution.63  The  right,  however,  of  the  States  to  tax 
the  shares  of  the  national  banks  has  been  reaffirmed  by  the 
Federal  Supreme  Court ; 64  and  a  bill  to  restrain  the  collec- 
tion of  a  state  tax  upon  the  shares  of  a  national  bank  is  bad 
on  demurrer,  where  it  does  not  appear  that  there  is  any  statu- 
tory discrimination  against  them,  or  that  they,  under  any  rule 
established  by  the  assessing  officers,  are  rated  higher  in  pro- 
portion to  their  actual  value  than  other  moneyed  capital.65 
A  statute  does  not  violate  a  state  constitution  where  it  does 
not  impose  a  disproportionate  and  unequal  tax  upon  national 
banks.66 

§  440.  Capital  Stock — Tangible  and  Intangible  Property- 
Franchises — Situs  of,  for  Taxation. — The  capital  stock  of 
a  corporation  and  the  shares  in  a  joint-stock  company  repre- 
sent not  only  its  tangible  property  but  also  its  intangible 
property,  including  therein  all  corporate  franchises  and  all 
contracts,  privileges  and  good  will  of  the  concern;  and  when, 

81  First  National  Bank,  Louisville,  11   Sup.  Ct.   L168   (which  is  cited  in 

v.  Louisville,  174  U.  S.  438,  -13  L.  ed.  Aberdeen    Bank  v.  Chehalis  County, 

L038,  L9  Sup.  Ct.  875.    See  also  Third  166  U.  S.  440,  446,41  L.  ed.  1069,  17 

National   Bank,  Louisville,  v.  Stone,  Sup.  Ct.  629);  Delaware  Railroad  Tax, 

174  U.  S.  432,  43  L.  ed.  1035,  19  Sup.  18  Wall.  (85  U.  S.)  206,230,21  L .  ed. 

Ct.  759.  888.     See  Merchants  &  Mfrs'.   Bank 

"Osbornv.  United  States  Bank,  9  v.  Pennsylvania,  167  U.  S.  461,  42  L. 

Wheat.  (22  U.S.)  738,6  L.  ed.  204.  ed.  236,  17  Sup.  Ct.  829. 

"McCulloch      v.      Maryland,      -1        ''''National   Bank  v.  Kimball,  103 

Wheat.  (17 U.  S.)316,4  L.ed.579.  U.  S.  732, 26  L.  ed.  469. 

"National     Hunk     v.     Common-       ■•  Bank  of  Redemption  v.  Boston, 

wealth,  9  Wall  (76  U.  S.)  353,  19  L.  125U.S.  60,33  L.  ed.  689, 8  Sup.  Ct. 
ed.  701.    Cited  in  Van  Slyke  v.  Wis-       :  Mass.  Pub.  Stats.,  chap.  13,  &§8, 

consin,  154  U.  S.  581,  20  L.  ed.  240,  9,  L0. 

777 


§    440  TAXATION    OF    FRANCHISES 

as  in  the  case  of  an  express  company,  the  tangible  property 
of  the  corporation  is  scattered  through  different  States  by 
means  of  which  its  business  is  transacted  in  each,  the  situs  of 
this  intangible  property  is  not  simply  where  its  home  office  is, 
but  is  distributed  wherever  its  tangible  property  is  located 
and  its  work  is  done;  and  it  is  held  that  no  fine-spun  theories 
about  situs  should  interfere  to  enable  these  large  corpora- 
tions, whose  business  is  of  necessity  carried  on  through  many 
States,  from  bearing  in  each  State  such  burden  of  taxation 
as  a  fair  distribution  of  the  actual  value  of  their  property 
among  those  States  requires.67  If  a  state  constitution  pro- 
vides that  all  property  except  that  of  railroads  operated  in 
more  than  one  county  shall  be  assessed  in  the  county  or  dis- 
trict where  located  68  a  gas  and  electric  company's  franchise 
to  lay  pipes  or  conduits,  etc.,  for  the  purpose  of  supplying 
artificial  light  to  the  inhabitants  of  a  city,  must  be  assessed 
in  the  county  wherein  the  municipality  is  located.69  It  is 
held  in  Wisconsin  that  the  legislature  cannot  arbitrarily  and 
capriciously  give  property  a  situs  for  taxation.  Tax  burdens 
must  be  imposed  on  the  State  at  large,  the  county  at  large, 
and  on  the  smaller  taxing  districts  at  large,  according  as  the 
purpose  thereof  is  purely  general  or  purely  local  to  the  par- 
ticular taxing  district.  The  scope  of  the  power  of  the  legisla- 
ture to  fix  the  situs  of  railway  property  for  taxation  has  re- 
gard to  the  nature  of  property  as  personalty.  The  doctrine 
that  the  situs  of  personal  property  for  taxation  is  the  home 
of  the  corporation  is  the  law  only  in  the  absence  of  a  law 
fixing  some  situs  within  constitutional  limitations.  The  limit 
of  legislative  power  as  to  territory  in  fixing  the  situs  of  per- 
sonal property  for  taxation  is  not  the  taxing  districts  in  which 
the  visible  part  of  the  railroad  and  its  office  or  offices  are 
located.     The  peculiar  nature  of  railway  corporations  as  to 

67  Adams  Express  Co.  v.  Ohio,  166  Pac.  54.    Examine  San  Joachin  &  K. 

U.  S.  185,  41  L.  ed.  965,  17  Sup.  Ct.  R.    Canal    &    Irrig.    Co.    v.    Merced 

604.  County  (Cal.  App.,  1906),  84  Pac.  285; 

68Cal.  Const.,  art.  13,  §  10.  City  &  County  of  San  Francisco  v. 

69  Stockton  Gas  &  Electric  Co.  v.  Oakland  Water  Co.  (Cal.,  1906),  83 

San  Joachin  County,  148  Cal.  313,  83  Pac.  61,  under  Pol.  Code,  §  3628. 

778 


TAXATION    OF    FRANCHISES  §   440 

their  commanding  position,  the  universality  and  closeness  of 
their  touch  with  the  everyday  life  of  the  people,  the  mutual 
relations  of  dependence  for  well-being  both  as  to  persons  and 
property,  reaching  the  State  at  large,  the  needs  of  such  cor- 
porations as  to  support  and  protection,  the  significant  degree 
in  which  the  administrative  energy  of  all  departments  of  the 
State  is  devoted  to  affairs  concerning  their  regulation  and 
well-being,  and  their  public  privileges  springing  from  the 
whole  people,  warrant  the  exercise  of  legislative  power,  giving- 
to  their  property  for  the  purposes  of  taxation  a  general  situs, 
and  applying  thereto  the  average  rate  of  taxation,  whether 
regarded  as  having  a  situs  throughout  the  State  or  one  limited 
to  the  taxing  districts  touched  by  their  tracks.70  It  may  also 
be  stated  in  this  connection  that  the  Federal  Supreme  Court 
holds  that  the  State  of  origin  remains  the  permanent  situs  of 
personal  property  notwithstanding  its  occasional  excursions 
to  foreign  parts,  and  a  State  may  tax  its  own  corporations  for 
all  their  property  in  the  State  during  the  year  even  if  every 
item  should  be  taken  into  another  State  for  a  period  and  then 
brought  back.71  The  same  court  also  holds  that  neither  the 
fiction  that  personal  property  follows  the  domicile  of  the  owner, 
nor  the  doctrine  that  credits  evidenced  by  notes  have  the 
situs  of  the  latter,  can  be  allowed  to  obscure  the  truth;  and 
personal  property  may  be  taxed  at  its  permanent  abiding  place 
although  the  domicile  of  the  owner  is  elsewhere.72   The  sover- 

70  Syllabus  by  Marshall,  J.,  in  (C.  C.  A.),  122  Fed.  787  (bank  de- 
Chicago  &  Northwestern  Hy.  Co.  v.    posits). 

State,  128  Wis.  553,  108  N.  W.  557.  Arkansas:   Harris  Lumber  Co.  v. 

71  New  York  Central  A:  II.  H.  Rd.  Grandstaff  (Ark.,  1906),  95  S.  W.  772 
Co.  v.  .Miller.  _'()2  U.  S.  584,  50  L.  ed.  (personal  property  of  company  man- 
1155,  26  Sup.  Ct.  — .  ufacturing,  selling,  etc.,  lumber). 

72 Metropolitan    Life    Ins.    Co.    of  California:     Mackay     v.    City    & 

New  York  v.  City  of  New  Orleans,  County  of  San    Francisco,   128  Cal. 

205  U.  S.  395,  51  L.  ed.  853^  27  Sup.  678,  til    Pac.  382   (bonds  of  foreign 

Ct.  499,  aff'g  115  La.  698.  railroad    company    on    deposit    and 

As  to  situs  for  taxation  <>j  personal  payable  outside  of  State);  Fair's  Es- 

proprrti/  and  franchises,  see  generally  tate,  In  re,  128  Cal.  607,  <>i  Pac.  184 

the  following  eases:  (bonds  <>f  foreign  railroad  company 

United  States:  I'yle  v.  Brenneman  operating  entirely  outside  of  State). 

779 


§   440  TAXATION    OF   FRANCHISES 

eign  that  creates  a  corporation  has  the  incidental  right  to  im- 
pose reasonable  regulations  concerning  the  ownership  of  stock 

Colorado:  Hall  v.  American  Re-  wealth  v.  Northwestern  Mut.  Life 
frigerator  Transit  Co.,  24  Colo.  291,  Ins.  Co.,  32  Ky.  L.  Rep.  796,  107 
51  Pac.  421  (refrigerator  cars).  N.  W.  232  (choses  in  action);  Lang- 
Connecticut:  East  Granby,  Town  don  &  Creasy  Co.  v.  Trustees  of 
of,  v.  Hartford  Electric  Light  Co.,  76  Owenton  Common  School  Dist.,  25 
Conn.  169,  56  Atl.  514  (water  power);  Ky.  L.  Rep.  823,  76  S.  W.  381  (fran- 
State  v.  Travellers'  Ins.  Co.,  70  Conn,  chise  tax);  Board  Councilmen  of  City 
590,  40  Atl.  465  (power  of  legisla-  of  Frankfort  v.  Stone,  22  Ky.  L.  Rep. 
ture  to  give  shares  of  corporation  a  502,  58  S.  W.  373,  denying  rehearing, 
situs).  22  Ky.   L.   Rep.  25,  56  S.  W.  679 

Georgia:   Georgia   R.   &   Banking  (franchise  of  corporation). 

Co.  v.  Wright,  124  Ga.  596,  53  S.  251  Louisiana:  Liverpool  &  L.  &  G. 

(rule,  as  to  situs  of  stock  in  foreign  Ins.   Co.   v.    Board   of  Assessors,  51 

railroad  corporation,  changed).  La.  Ann.  1028,  25  So.  970,  45  L.  R.  A. 

Illinois:  Scripps  v.  Board  of  Re-  524  (debt), 

view  of  Fulton  County,  183  111.  278,  Maine:    Inhabitants   of  Farming- 

55  N.  E.  700  (credits).  dale  v.  Berlin  Mills  Co.,  93  Me.  333, 

Indiana:  Buck  v.  Miller,  147  Ind.  45  Atl.   39    (personal   property  em- 

586,  47  N.  E.  8,  37  L.  R.  A.  387,  45  ployed  in  trade;  logs);  Union  Water 

N.  E.  647,  37  L.  R,  A.  384  (personal  Power  Co.  v.  Auburn,  90  Me.  71,  37 

property  used  in  business  in  State;  Atl.   331,   37   L.   R.   A.   651    (water 

owner  domiciled   elsewhere;   test   of  power). 

situs).  Maryland:  Baltimore,  City  of,  v. 
Kansas:  Board  of  Commrs.  of  Safe  Deposit  &  Trust  Co.  of  Bait. 
Johnson  County  v.  Hewitt,  76  Kan.  (Md.),  55  Atl.  316  (personal  property, 
816,  93  Pac.  181  (notes  of  resi-  bonds,  etc.;  validity  of  statute); 
dent  left  for  safekeeping  in  another  Baldwin  v.  State,  Hull,  89  Md.  587, 
State).  43  Atl.  857  (personal  property;  non- 
Kentucky:  Ayer  &  Lord  Tie  Co.  v.  residents). 
Keown,  122  Ky.  580  (personal  prop-  Massachusetts:  Lamson  Consol. 
erty  of  residents  and  non-residents);  Store-Service  Co.  v.  Boston,  170 
Ayer  &  Lord  Tie  Co.  v.  Keown,  29  Mass.  354,  49  N.  E.  630  (personal 
Ky.  L.  Rep.  110,  400,  93  S.  W.  588  property  leased  for  profit  by  foreign 
(same   point  as  last  case);   Ayer  &  corporation). 

Lord  Tie  Co.  v.  Keown,  27  Ky.  L.  Michigan:  Portsmouth  Township 

Rep.  541,  85  S.  W.  726;  Ayer  &  Lord  v.  Cranage  S.  S.  Co.,  148  Mich.  230, 

Tie  Co.  v.  Keown,  26  Ky.  L.  Rep.  14  Det.  Leg.  N.  101,  111  N.  W.  749 

585,  85  S.  W.  1096,  rev'd  in  202  U.  S.  (navigation  company  located  in  place 

409,  50  L.  ed.  1082,  26  Sup.  Ct.  679  other  than  that  specified  in  articles  of 

(vessels  owned  by  corporation  dom-  incorporation);   Detroit,   City  of,   v. 

iciled  in  Illinois,  having  acquired  a  Donovan  (Mich.),  8  Det.  Leg.  N.  465, 

permanent  situs  for  taxation  in  an-  86  N.   W.   1032   (franchise  of  street 

other  State,  not  subject  to  taxation  railway). 

in    Kentucky  even   though   enrolled  Minnesota:   State   v.  Iverson,  97 

in  a  port  in  that  State);  Common-  Minn.  286,  106  N.  W.  309  (personal 

780 


TAXATION    OF    FRANCHISES  §   440 

therein,  and  it  is  not  an  unreasonable  regulation  to  establish 
the  situs  of  stock,  for  purposes  of  taxation,  at  the  principal 

property    of   logging    railroad    com-  47  Atl.  740   (personalty);   Common- 

panies);  State  v.  Red  River  Valley  wealth  v.  Fall  Brook  R.  Co.,  188  Pa. 

Elevator  Co.,  69  Minn.  131,  72  N.W.  199,   41    Atl.   606    (capital   stock   of 

60  (situs  of  personal  property  of  cor-  railroad    company    partly    in    other 

poration    after    appointment    of    re-  States);  Commonwealth  v.  Pennsyl- 

ceiver).  vania  Coal  Co.,  3  Dauph.  Co.  Rep. 

Missouri:      State,     Hopkins,     v.  142,  9  Pa.  Dist.  Rep.  486  (coal  mined 

Brown   Tobacco   Co.,    140   Mo.   218,  or  purchased). 

41    S.   W.  776   (personalty;   removal  Texas:  Missouri,  K.  &  T.  Ry.  Co. 

of  corporation  from  county).  of  Texas  v.  Shannon  (Tex.  Civ.  App., 

New  Jersey:  American  Mail  1906),  97  S.  W.  527,  aff'd  100  Tex. 
Steamship  Co.  v.  Crowell  (N.  J.,  379,  100  S.  W.  138,  10  L.  R.  A. 
1908),  68  Atl.  752  (vessels  owned  by  (N.  S.)  681  (intangible  assets  of  rail- 
corporation);  Crossley  v.  East  Orange  roads);  State  v.  Austin  &  N.  W.  R. 
Township  Committee,  62  N.  J.  L.  Co.  (Tex.  Civ.  App.),  60  S.  W.  886, 
583,  41  Atl.  712,  16  Bkg.  L.  J.  34  62  S.  W.  1050  (tangible  and  intangi- 
(shares  of  capital  stock  of  bank).  ble  property,  franchises,  etc.,  of  rail- 
New  York:  People  ex  rel.  Edison  way  company). 
Electric  Light  Co.  v.  Campbell,  138  Utah:  Eureka  Hill  Mining  Co.  v. 
N.  Y.  543,  43  N.  E.  177  (situs  of  City  of  Eureka,  22  Utah,  447,  63  Pac. 
bonds  of  foreign  corporations  issued  654  (personalty;  net  proceeds  of 
in  payment  of  patent  rights;  fran-  mine);  Union  Refrigerator  Transit 
chise  tax);  Heerwagen  v.  Crosstown  Co.  v.  Lynch,  18  Utah,  378,  55  Pac. 
St.  Ry.  Co.,  86  N.  Y.  Supp.  218,  90  639,  13  Am.  &  Eng.  R.  Cas.  (N.  S.) 
App.  Div.  275  (street  railway  com-  868,  48  L.  R.  A.  790  (railway  cars); 
pany's  franchise);  People  ex  rel.  Salt  Lake  County  v.  State  Board  of 
Hans  Rees'  Sons  v.  Miller,  86  N.  Y.  Equalization,  18  Utah,  172,  55  Pac. 
Supp.  193,  90  App.  Div.  591  (fran-  378  (rolling  stock  of  railroad), 
chise  taxes);  People  ex  rel.  v.  Barker,  Virginia:  Board  of  Supervisors  of 
83  N.  Y.  Supp.  33,  84  App.  Div.  469  Elizabeth  City  County  v.  City  of  New- 
taxation  on  capital;  personalty;  cor-  port  News,  106  Va.  764,  56  S.  E.  80 
porate  indebtedness).  (rolling    stock    of    electric    railway 

North  Carolina:  Winston,  City  of,  taxed,  where  principal  place1  of  busi- 

v.  Town  of  Salem,  131  N.  C.  404,  42  ness  located );  Norfolk  &  W.  R.  Co.  v. 

S.  E.  889  (personal  property;  legis-  Board  of  Public  Works,  97  Va.  23,  1 

lative  power  as  to  situs).  Va.  Sup.  Ct.  Rep.  203,  32  S.  E.  779 

Ohio:  Cleveland  Trust  Co.  v.  Lan-  (tugs  and  barges  engaged  in  interstate 

der,  62  Ohio  St.  266,  56  N.  E.  1036  commerce);    Union    Hank    v.    Hich- 

(sharefl    of    national     banks;     non-  mond,  94  Va.  316, 26  S.  E.  821,  6  Am. 

residents).  &  Eng.  Corp.  Cas.  (N.  S.)  581  (bank 

Oklahoma:   Prairie  Cattle   Co.   v.  stock). 

Williamson,  5  Okla.  488,  49  Pac.  937  Wisconsin:  Chicago  &  X.  W.  Ry. 

(personal  property).  Co.  v.  State,  128  Wis.  553,  L08  V  W. 

Pennsylvania:  Commonwealth  v.  ">">7  (personal  property;  limitation  on 

Pennsylvania  Coal  Co.,  197  Pa.  551,  legislative  power  to  fix  situs). 

781 


§    441  TAXATION    OF    FRANCHISES 

office  of  the  corporation  whether  owned  by  residents  or  non- 
residents, and  to  compel  the  corporation  to  pay  the  tax  for 
the  stockholders,  giving  it  a  right  of  recovery  therefor  against 
the  stockholders  and  a  lien  on  the  stock.  If  valid  according 
to  the  laws  of  the  State,  such  a  regulation  does  not  deprive  the 
stockholder  of  his  property  without  due  process  of  law  either 
because  it  is  an  exercise  of  the  taxing  power  of  the  State  over 
persons  and  things  not  within  its  jurisdiction,  or  because 
notice  of  the  assessment  is  not  given  to  each  stockholder, 
provided  that  notice  is  given  to  the  corporation,  and  the 
statute,  either  in  terms  or  as  construed  by  the  state  court, 
constituted  the  corporation  the  agent  of  the  stockholders  to 
receive  notice  and  to  represent  them  in  proceedings  for  the 
correction  of  the  assessment.73 

§  441.  Franchise  Tax— What  Is  Included  as  Capital  Stock 
—Exempt  Property.74 — It  is  decided  in  New  York  that  United 
States  and  other  bonds,  in  the  absence  of  proof  that  they  were 
bought  by  a  corporation  with  its  surplus,  should  be  treated 
as  capital  employed  within  the  State,  and  as  part  of  the  basis 
upon  which  the  franchise  tax  is  to  be  computed.  Stocks  of 
other  corporations  held  by  a  corporation  sought  to  be  taxed 
upon  its  franchise  fall  within  the  same  rule  as  bonds.  The 
fact  that  it  not  only  owns  the  entire  stock  of  another  corpora- 
tion, but  also  acquired  all  its  assets,  property  and  privileges, 
except  its  corporate  franchise  and  some  non-assignable  con- 
tracts, does  not  exempt  such  stock  from  the  operation  of  the 
rule,  upon  the  ground  that  the  ownership  of  stock  is  merged 
in  the  ownership  of  the  assets  and  privileges  represented  by 
it,  and  is,  therefore,  of  no  value,  where  the  corporation  has 
never  been  dissolved,  retains  its  corporate  franchise,  and 
therefore  remains  a  going  concern.75     It  is  also  held  in  the 

73  Corry  v.  Mayor  and  Council  of  75  People  ex  rel.  Commercial  Cable 
Baltimore,  196  U.  S.  466,  49  L.  ed.  Co.  v.  Morgan,  178  N.  Y.  433,  rev'g 
556,  25  Sup.  Ct.  297.  86  App.  577,  83  N.  Y.   Supp.  998. 

74  See  §  423,  herein.     Also  §§  446-  Compare  §  441,  herein. 
451  as  to  basis  of  computation. 

782 


TAXATION    OF   FRANCHISES  §    441 

Federal  Supreme  Court  that  a  tax  which  is  imposed  by  a 
state  statute  upon  "the  corporate  franchise  or  business"  of 
all  corporations  incorporated  under  any  law  of  the  State  or 
of  any  other  State  or  country,  and  doing  business  within  the 
State,  and  which  is  measured  by  the  extent  of  the  dividends 
of  the  corporation  in  the  current  year,  is  a  tax  upon  the  right 
or  privilege  to  be  a  corporation  and  to  do  business  within  the 
State  within  a  corporate  capacity,  and  is  not  a  tax  upon  the 
privilege  or  franchise  which,  when  incorporated,  the  com- 
pany may  exercise,  and,  being  thus  construed,  its  imposition 
upon  the  dividends  of  the  company  does  not  violate  the  pro- 
visions of  the  statute  exempting  bonds  of  the  United  States 
from  taxation,  12  Stat.  346,  c.  33,  §  2,  although  a  portion  of 
the  dividends  may  be  derived  from  interest  on  capital  in- 
vested in  such  bonds.76  So  the  entire  rolling  stock  of  a  domestic 
railroad  corporation  is  capital  employed  within  the  State, 
where  the  company  has  not  shown  that  any  portion  thereof 
is  used  exclusively  outside  of  the  State.77  Land  partly  im- 
proved, which  is  owned  by  a  manufacturing  corporation,  but 
not  purchased  with  its  surplus,  and  a  part  of  which  produces 
an  annual  revenue,  and  a  part  no  revenue  and  is  held  for  sale 
as  village  lots,  is  not  employed  in  manufacturing  and  must 
be  considered  as  capital  in  fixing  the  amount  of  franchise  tax 
payable  by  the  corporation,  even  though  assets  are  possessed 
by  it  in  excess  of  its  capital  stock,  and  in  an  amount  exceeding 
the  value  of  such  land.78  Good  will  is  also  taxable  as  capital; 
and  copyrights  granted  by  the  United  States  are  subject  to 
the  taxing  power  of  the  State.79  The  fact  that  the  capital  of 
a  domestic  corporation  is  substantially  all  invested  in  letters 

76  Homfi  Ins.  Co.  v.  Now  York,  134  Supp.  401,  75  App.  Div.  169,  inodi- 

I  .  S.  594,  33  L.  eel.  1025,  10  Sup.  Ct.  fied   in    173    N.    Y.    255,   (35    N.   E. 

593,    decided    in    1889.      See    §423,  1102. 

herein.     Compare  §441,  herein.  78  People  ex  rel.  Steinway  &  Sons  v. 

"  People  ex  rel.  New  York  Cent.  Sc  Kelsey,  96  X.  Y.  Supp.  42,  108  App. 

H.  R.  R.  Co.  v.  Miller,  84  N.  Y.  Supp.  I  )iv.  138. 

1088,  89  App.  Div.  127,  aff'd  (mem.)  70  People,  A.    J.    Johnson    Co.,  v. 

177  N.  Y.  581,  (19  N.  E.  112'.).    See  Roberts,  159  X.  Y.  70,  53  N.  E.  685, 

also  People  ex  rel.  New  York  Cent.  &  45  L.  R.  A.  L26,  rev'g  54  N.  Y.  Supp. 

H.  R.  R.  Co.  v.   Knight,  77  N.   V.  1 112,  35  App.  Div.  624. 

783 


§    442  TAXATION    OF    FRANCHISES 

patent  issued  by  the  United  States,  which,  under  the  Federal 
law,  is  exempt  from  taxation,  does  not  prevent  the  imposition 
of  a  franchise  tax  thereon,  for  the  reason  that,  although  meas- 
ured by  the  value  of  the  property,  it  is  imposed  upon  the 
corporation  for  the  privilege  of  carrying  on  business  in  the 
State.  The  same  rule  would  apply  if  its  capital  were  invested 
in  United  States  bonds  or  copyrights,  which  are  also  exempt 
from  taxation.80  So  a  patent  may  be  considered  as  part  of 
the  capital  and  exempt  where  manufacturing  is  done  in  the 
State  under  letters  patent.81  Capital  invested  in  New  York 
by  a  foreign  corporation  maintaining  an  office  there  for  the 
sale  of  products  of  mines  from  other  States,  the  proceeds  being 
collected  there,  is  deemed  capital  stock  for  the  purposes  of 
taxation,  although  not  part  of  the  original  capital  stock,  and 
it  may  be  made  the  basis  for  determining  the  percentage  of 
taxation.82  Where  a  franchise  tax  or  annual  license  fee  is 
imposed  upon  a  corporation  and  graduated  according  to  the 
amount  of  outstanding  stock,  such  tax  is  held  not  to  be  a  prop- 
erty tax,  and  that  shares  of  a  corporation  organized  in  another 
State  but  located  in  the  State  imposing  such  tax  were  liable.83 

§  442.  Franchise  Tax— What  Is  not  Included  as  Capital 
Stock.84 — Under  the  New  York  statute 85  bills  receivable  are 
not  capital  employed  within  the  State.86  Nor  is  surplus  of  a 
foreign  corporation  which  is  merely  invested  in  real  estate  in 

80  People  ex  rel.  United  States  82  People  ex  rel.  Union  Sulphur  Co. 
Aluminum  Printing  Plate  Co.  v.  v.  Glynn,  125  App.  Div.  328. 
Knight,  174  N.  Y.  474,  67  N.  E.  65,  83  Rhode  Island  Hospital  Trust 
rev'g  67  App.  Div.  333,  73  N.  Y.  Co.  v.  Tax  Assessors  of  Providence, 
Supp.  745.  See  also  Home  Ins.  Co.  v.  25  R.  I.  355,  55  Atl.  877;  Genl.  Stat., 
New  York,  134  U.  S.  594,  33  L.  ed.  p.  3337,  §  4;  Genl.  Laws,  1896,  c.  45, 
1025,    10    Sup.    Ct.    593;    People    v.  §  10. 

Home  Ins.  Co.,  92  N.  Y.  328;  People  84  See  §  423,  herein.     Also  §§  446- 

ex  rel.  Electric  Light  Co.  v.  Campbell,  451  as  to  basis  of  computation. 

138  N.  Y.  543,  43  N.  E.  177,  rev'g  88  85  Tax  Law;  Laws  1896,  chap.  908, 

Hun,  530,  68  N.  Y.  St.  Rep.  747,  34  §  182. 

N.  Y.  Supp.  713.  86  People    ex    rel.    Rees'    Sons    v. 

81  American  Mutoscope  Co.  v.  State  Miller,  86  N.  Y.  Supp.  193,  90  App. 
Board  of  Assessors  (N.  J.  Sup.),  56  Div.  591. 

Atl.  369. 

784 


TAXATION   OF   FRANCHISES  §    443 

New  York  taxable.87  Nor  are  surplus  earnings  or  stocks  and 
bonds  purchased  with  surplus  by  a  domestic  corporation  taxa- 
ble.88 Again,  money  invested  by  a  domestic  corporation  in 
real  estate  not  used  by  the  corporation  in  its  business  or  in 
any  connected  therewith,  and  upon  which  it  pays  a  tax  for 
general  and  local  purposes,  and  money  invested  in  it  by  non- 
negotiable  municipal  bonds,  the  rentals  of  the  real  estate  and 
the  interest  on  the  bonds  being  used  to  increase  the  corpora- 
tion's annual  income,  are  not  part  of  the  capital  of  the  cor- 
poration "employed  within"  a  State  under  a  statute  provid- 
ing for  taxation  on  capital  so  employed.  The  capital  intended 
by  the  enactment  is  that  actually  employed  in  the  State  and 
does  not  apply  to  that  merely  invested.89  So  stock  of  a  for- 
eign corporation,  acquired  by  a  domestic  corporation  in  ex- 
change for  patent  rights,  is  not  taxable  to  the  domestic  cor- 
poration.90 Nor  does  stock  of  a  foreign  corporation  held  by  a 
domestic  railroad  corporation  constitute  a  part  of  its  capital 
employed  within  the  State;  nor  are  the  amount  of  anticipated 
dividends,  bills  receivable  for  expenditures  on  leased  lines, 
and  the  value  of  coal  and  supplies  owned  by  the  corporation 
without  the  State  to  be  included.91  And  where  a  domestic 
corporation  owns  vessels  plying  between  the  port  of  Buffalo 
and  other  ports  on  the  Great  Lakes,  all  of  which  are  without 
the  State,  they  do  not  constitute  capital  employed  within  the 
State  within  the  statutory  intent.92 

§  443.  Exemptions— Tax  Upon  Banks  in  Which  United 

87  People  ex  rel.  Singer  Mfg.  Co.  v.  rev'g  63  Hun,  44,  44  N.  Y.  St.  Rep. 
Wemple,  150  N.  Y.  46,  44  N.  E.  7S7,  702,  18  N.  Y.  Supp.  511;  People  ex 
aff'g  78  Hun,  63,  00  N.  Y.  St.  Rep.  rel.  Edison  Electric  Light  Co.  v. 
662,  29  N.  Y.  Supp.  92.  Wemple,  138  N.  Y.  543. 

M  People  ex  rel.  United  Verdi  Cop-  01  People  ex  rel.  New  York  Central 

per  Co.   v.   Roberts,  156  N.  Y.  585,  &  H.  R.  Rd.  Co.  v.  Knight,  173  N.  Y. 

rev'g  25  App.  Div.  89.  255,   65   N.    E.    1102,   modifying  77 

88  People  ex  rel.  Union  Ferry  Co.  v.  N.  V.  Supp.  401,  75  App.  Div. 
Roberts,  72  N.  Y.  Supp.  950,  66  App.  169. 

Div.  157.  "People     ex     rel.      Lackawanna 

90  People  ex  rel.  Edison  Electric  Transp.  Co.  v.  Knight,  77  N.  Y. 
Light  Co.  v.  Wemple,  148  X.  V.  690,    Supp.  398,  75  App.  Div.  164. 

50  785 


§     I  I;',  TAXATION    OF    FRANCHISES 

States  Securities  Are  Included. !,;i— In  a  comparatively  late 
decision  in  the  Federal  Supremo  Court  certain  banking  in- 
stitutions were  incorporated  under  the  state  laws  and  upon 
each  of  them  a  tax  was  levied  under  the  state  law,  which  pro- 
vided that  "shares  of  stock  of  stair  and  savings  banks  and 
loan  and  trust  companies  shall  be  assessed  to  such  banks 
and  loan  and  trust  companies  and  not  to  individual  stock- 
holders." These  banks  being  corporations  of  the  State  im- 
posing the  tax,  the  State  did  not,  as  in  the  case  of  national 
banks,  require  any  authority  from  the  United  States.  Its 
own  governmental  power  was  sufficient  for  the  imposition  of 
such  taxes,  assessed  by  such  methods,  and  under  such  stand- 
ards of  valuation  as  it  might  choose,  provided  the  Federal 
Constitution  should  not  be  violated,  or  some  Federal  law 
which  by  that  Constitution  is  made  supreme.  The  following 
were  the  points  decided:  (1)  The  Constitution  has  conferred 
upon  the  government  power  to  borrow  money  on  the  credit 
of  the  United  States,  and  that  power  cannot  be  burdened, 
impeded,  or  in  any  way  affected  by  the  action  of  any  State. 
(2)  The  tax  upon  the  property  of  a  bank  in  which  United 
States  securities  are  included  is  beyond  the  power  of  the  State, 
and  is  also  within  the  prohibition  of  §  3701,  Rev.  Stat.,  and 
other  acts  of  Congress.  (3)  While  a  tax  on  an  individual  in 
respect  to  his  shares  in  a  corporation  is  not  a  tax  on  the  cor- 
poration, and  the  value  of  the  shares  may  be  assessed  without 
regard  to  the  fact  that  the  assets  of  the  corporation  include 
government  securities,  if  the  tax  is  actually  on  the  corpora- 
tion although  nominally  on  the  shares  such  securities  may 
not  be  included  in  assessing  the  value  of  the  shares  for  taxa- 
tion. (4)  The  substantial  effect  of  the  statute,  providing  as 
above  stated,  and  providing  that  in  fixing  the  value  of  the 
shares  capital,  surplus  and  undivided  earnings  shall  be  taken 
into  account,  as  the  law  has  been  construed  by  the  highest 
court  of  the  State,  is  to  tax  the  property  of  the  bank  and  not 
the  shares  of  stock,  and  an  assessment  which  includes  govern- 

83  See  §  439,  herein. 
786 


TAXATION    OF    FRANCHISES  §   444 

ment  bonds  owned  by  the  bank  in  fixing  the  valuation  of  its 
shares  is  illegal  and  beyond  the  power  of  the  State.94 

§444.  Special  Franchises— Taxation.— The  right  to  exist 
as  a  railroad  company,  and  to  maintain  and  operate  a  rail- 
road, is  a  general  franchise.  A  special  franchise  of  a  railroad 
is  its  right  to  construct,  maintain  and  operate  a  railroad  in 
public  streets,  highways  or  public  places,  and  under  the  New 
York  Tax  Law95  it  covers  railroads  over,  upon  or  under  such 
streets,  etc.,  including  the  tangible  property  in  use  over,  upon 
or  under  the  highway.  If  the  railway  is  located  entirely  in  or 
under  the  streets,  highways  or  public  places,  the  special  fran- 
chise consists  of  the  physical  property  itself,  including  the 
right  to  use  it;  and  a  special  franchise  is  only  taxable  as  real 
estate.96  Whatever  doubt  there  may  be  as  to  the  classifica- 
tion of  special  franchises  to  operate  mains,  etc.,  under  public 
waters  as  real  property  the  statute  clearly  includes  under 
the  term  "special  franchise"97  such  tangible  property  under 
public  waters  as  is  used  in  connection  with  the  special  fran- 
chise; and  tangible  property  situated  under  public  waters  as  a 
part  or  continuation  of  the  system  in  the  public  streets  operated 
by  an  electric  light  company  under  its  special  franchise  and 
in  connection  therewith,  there  being  no  suggestion  that  the 
property  under  water  is  the  subject  of  a  separate  and  distinct 
franchise,  cannot  be  validly  assessed  for  taxation  by  the  com- 
missioners of  taxes  of  fhe  city  wherein  such  plant  is  located, 
but  can  only  be  taxed  as  a  part  of  the  special  franchise  upon 
an  assessment  made  by  the  state  board  of  tax  commissioners 
as  provided  by  the  Tax  Law.98    The  Interborough  Rapid  Transit 

84  Homo    Savings    Hunk     v.     Des  Rapid  Transit  Co.  v.  Tax  Commrs., 

Moines,  205  U.  S.  503,  51  L.  ed.  — ,  126    Mr     Div.   (HO,  611-613,   from 

27  Sup.  Ct.  -     (another  point   was  opinion  ni  Kellogg,  J. 
decided   in   this   case   and    is  given       n  Subdv.  3,  5  2,  of  the  Tax    Law 

under    §417,  herein),  under    $ 1322  of    X.    Y..    Laws    1896,   chap.   908, 

of  the  Iowa  code.  as  amended    by    Laws    L899,   chap. 

Tax   l-aw;  Laws  1896,  chap.  908,    712, 

§2,  subd.  3,  as  amended  by  laws  of       "  People  ex  rel.  Edison  [Uuminat- 
1899,  chap.  712.  in^  ('<>.  v.  Commissioner  of  Taxes,  58 

"People     ex     rel.     Interborough    Misc.  249. 

787 


§   445  TAXATION    OF   FRANCHISES 

Company,  as  lessee  or  operator  of  subway  railroads  owned  by 
the  city  of  New  York,  is  not  subject  to  a  special  franchise  tax 
on  account  of  the  rights  which  it  exercises  under  its  contract 
with  the  city.  If  the  city  had  been  given  power  to  operate 
the  road  no  franchise  tax  could  be  charged  against  it,  and  the 
legislature  has  by  express  provision  extended  the  exemption 
to  the  operator  or  lessee  of  the  city.  This  express  exemption 
from  taxation  of  such  operator  or  lessee  of  said  subway  rail- 
road on  property,  other  than  real  property  owned  or  employed 
by  it  in  the  construction  or  operation  of  the  road,  was  not 
impaired  by  the  subsequent  enactment  of  that  provision  of 
the  Tax  Law  declaring  a  special  franchise  to  be  real  estate 
for  the  purposes  of  taxation,  and  it  may  well  be  questioned 
whether  the  legislature  could  destroy  the  exemption  after  a 
contract  is  made  relying  upon  it.  The  courts,  by  a  doubtful 
construction,  will  not  impute  to  that  body  an  intent  to  violate 
a  promise  by  which  the  city  was  aided  in  obtaining  a  contractor 
on  favorable  terms.  Where  two  acts  are  passed  at  the  same 
session  it  is  presumed  that  the  legislature  did  not  intend  to 
repeal  by  implication  the  earlier  act.  And  this  applies  to  a 
claim  that  the  Tax  Law  "  repeals  by  implication  that  section 
of  the  Rapid  Transit  Law  which  contains  the  exemption  from 
taxation.1 

§  445.  Franchises— Exemption  From  Tax  on  Capital 
Stock. — The  New  York  Tax  Law  exempts  certain  corpora- 
tions from  the  payment  of  taxes  on  their  capital  stock.2    Under 

"Genl.    Laws    N.    Y.,    chap.    24,  chap.  558,  and  by  Laws  1906,  p.  1195, 

Laws  1896,  chap.  908.  chap.  474.     Includes  banks,  savings 

1  People  ex  rel.  Interborough  Rapid  banks,  institutions  for  savings,  title 
Transit  Co.  v.  Tax  Commrs.,  126  guaranty,  insurance  or  surety  corpo- 
App.  Div.  610.  Sec.  35  of  Rapid  rations,  trust  companies  organized 
Transit  Law  was  amended  May  19,  under  the  laws  of  the  State,  com- 
by  chap.  729,  Laws  N.  Y.,  1896,  and  panies  authorized  to  do  a  trust  com- 
the  Tax  Law  was  enacted  May  27,  at  pany's  business,  solely  or  in  connec- 
same  session.  tion  with  any  other  business,  laundry 

2  N.  Y.  Tax  Law;  Laws  1896,  corporations,  manufacturing  corpora- 
chap.  908,  §  183,  as  am'd  by  Laws  tions,  to  the  extent  only  of  the  capi- 
1897,    chap.    785,    by    Laws    1901,  tal  actually  employed  in  the  State  in 

78S 


TAXATION    OF   FRANCHISES  §    445 

this  statute  manufacturing  companies  have  been  held  to  in- 
clude electricity,3  gas,4  and  putting  together  parts  of  a  fountain 
pen  by  experts.5  So  a  corporation  whose  sole  business  is  that 
of  manufacturing,  under  a  patent  process,  linings  composed  of 
lead,  brick  and  cement  for  use  in  wood-pulp  digesters  is  a 
manufacturing  corporation  within  the  intent  of  a  statute 
exempting  manufacturing  corporations  from  a  tax  on  capital 
stock  to  the  extent  only  of  the  capital  actually  employed  in 
the  State  in  manufacturing  and  in  the  sale  of  the  product  of 
manufacturing,  with  the  condition  that  such  corporation  shall 
not  be  exempted  unless  at  least  a  specified  certain  per  centum 
of  its  capital  stock  is  invested  in  property  in  the  State  and 
used  by  it  in  its  manufacturing  business  in  the  State.6  Again, 
the  making  of  a  paving  compound  is  the  production  of  a 
new  and  distinct  substance  which  constitutes  manufacturing 
within  the  intent  of  the  statute,  but  the  preparation  of  a  street 
for  the  laying  of  the  paving  compound  and  the  placing  of  the 
compound  thereon,  is  not  in  any  sense  a  process  of  manu- 
facture.7    Nor  is  collecting  and  preparing  ice,8  publishing  a 

manufacturing,  and  in  the  sale  of  the  3  People  ex  rel.  Edison  Illuminating 

product  of  such  manufacturing,  min-  Co.  v.  Wemple,  129  N.  Y.  664,  42  N. 

ing  corporations  wholly  engaged   in  Y.  St.  Rep.  280,  3  Silv.  C.  A.  653,  29 

mining  ores  within  the  State,  agri-  N.  E.  812,  rev'g  61  Hun,  53,  39  N.  Y. 

cultural  or  horticultural  societies  or  St.  Rep.  605,   15   N.   Y.   Supp.   711; 

associations,  and  corporations,  joint-  People  ex  rel.  Brush  Electric  Mfg.  Co. 

stock     companies     or     associations,  v.  Wemple,   129  N.  Y.  543,  42  N.  Y. 

owning   or   operating   elevated    rail-  St.  Rep.  272,  29  N.  E.  808,  rev'g  39 

roads  or  surface  railroads  not  oper-  N.   Y.  St.  Hep.  614,  15  N.  Y.  Supp. 

ated  by  steam,  or  formed  for  supply-  718. 

ing  water  or  gas  for  electric  or  steam  J  Nassau  Gas  Light  Co.  v.  City  of 

heating,  lighting  or  power  purposes  Brooklyn,  89  N.  Y.  409. 

and  liable  to  a  tax  under  certain  other  5  People  ex  rel.  Waterman  Co.  v. 

speeified    sections   of    the    tax   law.  Morgan,  48  App.  Div.  395. 

Laundryins,  manufacturing  or  min-  "People    ex    nl.    Digester    Co.    v. 

ing  corporations  are  not  exempted  Knight,  73  N.  Y.  Supp.  743,  67  App. 

from  the  tax  unless  al  lei    I  forty  per  Div!  365. 

centum  of  the  capital  stock  of  such  7  People    ex    rel.    Paving    Co.    v. 

corporation  is  invested  in  property  in  Knight,  90  N.  Y.  Supp.  537,  99  App. 

the  State  and  used  by  it  in  laundry-  Div.  62. 

Log,  manufacturing  or  mining  busi-  People  v.  Knickerbocker  Ice  Co., 

ness  in  the  S  99  N.  Y.  lsi. 

7S9 


§  446 


TAXATION    OF    FRANCHISES 


newspaper,9  or  doing  merely  an  incidental  business  in  connec- 
tion with  selling  manufactured  goods,  included  as  manu- 
facturing.10 


§  446.  Franchise  Tax— Capital  Stock,  etc.— Valuation- 
Basis  of  Computation. — The  legislature  has  power  to  de- 
termine upon  what  basis  the  amount  of  a  franchise  tax  upon 
banks  may  be  ascertained.11  Under  the  New  York  statute  the 
basis  of  the  franchise  tax  imposed  upon  corporations  is  the 
actual  value  of  the  capital  employed  "within"  the  State,12 
and  an  assessment  based  upon  the  par  value  of  the  stock  is 
erroneous.13  That  section  of  the  statute  of  that  State  14  re- 
lating to  the  imposition  of  a  franchise  tax  on  corporations, 
and  providing  that  when  a  dividend  of  less  than  six  per  centum 
has  been  declared  during  the  tax  year,  the  tax  shall  be  at  the 
rate  of  one  and  one-half  mills  upon  such  portion  of  the  capital 
stock,  at  par,  as  the  amount  of  capital  employed  within  the 


9  People  ex  rel.  Jewelers'  Pub.  Co. 
v.  Roberts,  155  N.  Y.  1. 

10  People  ex  rel.  Roebling's  Sons 
Co.  v.  Wemple,  138  N.  Y.  582,  53 
N.  Y.  St.  Rep.  297,  34  N.  E.  386, 
aff'g  63  Hun,  452,  44  N.  Y.  St.  Rep. 
708,  18  N.  Y.  Supp.  504. 

11  State  v.  Franklin  County  Sav. 
Bank  &  Trust  Co.,  74  Vt.  246,  52  Atl. 
1069. 

12  People  ex  rel.  New  York  Cent.  & 
H.  R.  R.  Co.  v.  Knight,  77  N.  Y. 
Supp.  401,  75  App.  Div.  169,  modified 
173  N.  Y.  255,  65  N.  E.  1102;  People 
ex  rel.  Wiebush  &  Hilger  Co.  v. 
Roberts,  154  N.  Y.  101,  47  N.  E.  980, 
aff'g  19  App.  Div.  574,  46  N.  Y.  Supp. 
570;  People  ex  rel.  Chicago  Junction 
Rys.  &  Union  Stock  Yards  Co.  v.  Rob- 
erts, 154  N.  Y.  1,  47  N.  E.  974,  rev'g 
90  Hun,  474,  70  N.  Y.  St.  Rep.  640, 
35  N.  Y.  Supp.  968;  People  ex  rel. 
Edison  Electric  Light  Co.  v.  Wemple, 
148  N.  Y.  690,  rev'g  63  Hun,  444,  44 
N.  Y.  St.  Rep.  702,  18  N.  Y.  Supp. 

790 


511;  People  ex  rel.  Seth  Thomas 
Clock  Co.  v.  Wemple,  133  N.  Y.  323, 
31  N.  E.  238,  45  N.  Y.  St.  Rep.  234, 
rev'g  42  N.  Y.  St.  Rep.  60,  16  N.  Y. 
Supp.  602;  People  ex  rel.  American 
Contracting  &  D.  Co.  v.  Wemple,  129 
N.  Y.  558,  42  N.  Y.  St.  Rep.  400,  29 
N.  E.  812,  aff'g  60  Hun,  225,  38 
N.  Y.  St.  Rep.  17,  14  N.  Y.  Supp. 
859;  People  v.  Horn  Silver  Mining 
Co.,  105  N.  Y.  76,  6  N.  Y.  St.  Rep. 
495,  26  Wkly.  Dig.  158,  11  N.  E.  155, 
aff'g  38  Hun,  276;  People  v.  Equi- 
table Trust  Co.  of  New  London,  96 
N.  Y.  387. 

13  People  ex  rel.  New  York  Central 
&  H.  R.  R.  Co.  v.  Knight,  173  N.  Y. 
255,  65  N.  E.  1102,  modifying  77 
N.  Y.  Supp.  401,  75  App.  Div.  169. 
See  Bells  Gap  R.  Co.  v.  Pennsylva- 
nia, 134  U.  S.  232,  10  Sup.  Ct.  533, 
33  L.  ed.  892,  noted  under  §  446, 
herein. 

14  Tax  Law;  Laws  1896,  chap.  908, 
§182. 


TAXATION    OF    FRANCHISES  §    446 

State  bears  to  the  entire  capital  of  the  corporation,  must  be 
read  in  connection  with  the  subsequent  section,15  providing 
for  the  assessment  at  its  actual  cash  value,  and  when  so  read 
establishes  a  rule  for  the  computation  of  the  amount  of  capital 
stock  on  which  the  assessment  is  to  be  made,  but  not  for  its 
valuation,  that  being  determined  by  the  provisions  of  the  latter 
section,  and,  therefore,  in  such  case  an  assessment  upon  its 
par  value  is  erroneous.16  In  determining  the  tax  under  the 
statute  of  that  State  as  to  savings  banks,  the  comptroller  must 
appraise  the  bonds  and  securities  in  which  the  surplus  is  in- 
vested at  their  market  value,  whenever  such  value  is  less  than 
the  face  or  par  value  thereof.  This  is  in  accordance  with  the 
provisions  of  the  banking  law,17  authorizing  a  savings  bank  to 
accumulate  a  surplus  not  to  exceed  fifteen  per  cent  of  its  de- 
posits, and  providing  that  "in  determining  the  per  cent  of 
surplus  held  by  any  savings  bank  its  interest  paying  stocks 
and  bonds  shall  not  be  estimated  above  their  par  value,  or 
above  their  market  value  if  below  par."  It  was  held  that  in 
imposing  a  tax  upon  the  surplus  of  a  savings  bank  the  legis- 
lature must  have  intended  the  surplus  provided  for  in  these 
sections  of  the  banking  law.18  Where  the  comptroller  is  dis- 
satisfied with  the  appraisal  of  the  value  of  the  capital  stock  of 
a  corporation,  and  elects  to  reject  such  appraisal  and  make 
one  of  his  own,  he  is  not  limited  by  the  average  market  price 
for  which  the  stock  sold  during  the  year,  except  that  he  is  re- 
quired to  appraise  it  at  not  less  than  such  average  market 
price.19  The  franchise  right  of  a  corporation  to  conduct  its 
business  under  its  franchise  is  to  be  considered  in  determining 

15  See  §  190.  chap.  117,  imposing  franchise  tax  on 

11  People  ex  rel.  Now  York  &  East  savings  banks. 
River  Ferry  Co.  v.  Roberts,  168  N.  Y.        "People  ex  rel.  Metropolitan   Se- 

14,  60  N.  E.  1043,  rev'g  35  App.  Div.  curity  Co.  v.  Kelsey,  91  N.  Y.  Supp. 

625,54  X.  Y.  Supp.  1112.  711,  101  App.  Div.  248;  N.  Y.  Tax 

17  See  §§  123,  124.  Laws;  Laws  1S96,  chap.  908,  §  190, 

u  People  ex  rel.  Bank  of  Savings  v.  as  am'd  by  Laws  1906,  chap.  474, 

Miller,  177  N.  Y.  461,  modifying  82  since  am'd  by  Laws  1907,  p.  1726, 

N.  Y.  Supp.  621,  84  App.  Div.  168;  chap.   734,   providing  that  value  of 

N.  Y.  Tax  Law;  Laws  1896,  chap.  908,  stock  be  appraised. 
51876,     as     am'd     by     Laws     1901, 

791 


§    446  TAXATION    OF   FRANCHISES 

the  actual  value  of  its  "capital  stock"  for  taxation.20  Surplus 
earnings  are  not  within  the  statute  of  New  York.21  The  tax  is 
computed  on  the  basis  of  dividends  made  upon  the  capital 
stock  of  the  corporation,  and  not  upon  dividends  earned  within 
the  State.22  If  more  than  six  per  cent  dividends  are  paid  by 
a  corporation  the  tax  is  to  be  assessed  upon  the  basis  of  the 
capital  employed  within  the  State.23  It  is  not  necessary  in 
valuing  a  property  as  a  totality  for  taxation  to  disintegrate 
the  various  elements  which  enter  into  it  and  ascribe  to  each 
its  separate  fraction  of  value.24  An  imposition  of  a  tax  upon 
the  capital  of  a  foreign  investment  corporation  employed 
within  the  State,  computed  upon  the  monthly  bank  balance 

20  People  ex  rel.  Wiebusch  &  Hilger  sidered    in    determining    the    actual 

Co.  v.  Roberts,  154  N.  Y.  101,  107,  value  of  the  capital  stock.    Common- 

108,  47   N.   E.   480.      See  also  New  wealth  v.  Ontario,  C.  &  S.  R.  Co.,  188 

York  Central  &  Hudson  R.  Rd.  Co.  v.  Pa.  205,  41  Atl.  607;  Pa.  Act  June  8, 

Miller,  202  U.  S.  584,  596,  50  L.  ed.  1891,  P.  L.  229. 

— ,  26  Sup.  Ct.  — ;  Henderson  Bridge  Earning  capacity  of  franchise.    See 

Co.  v.  Commonwealth,  99  Ky.  623,  17  Rocheblave  Market  Co.   v.   City  of 

Ky.  L.  Rep.  389,  29  L.  R.  A.  73,  31  New  Orleans    (La.),  34  So.  665,  con- 

S.  W.  486,  aff'd  in  166  U.  S.  150,  17  sidered  under  §  447,  herein. 

Sup.  Ct.  532,  41  L.  ed.  953;  Hender-  21  People  ex  rel.  Steinway  &  Sons 

son  Bridge  Co.  v.  Negley,  Sheriff,  23  v.   Kelsey,  96  N.  Y.   Supp.  42,  108 

Ky.  L.  Rep.  746;  People  ex  rel.  Com-  App.    Div.    138;    Tax    Laws;    Laws 

mercial   Cable   Co.    v.    Morgan,    178  1896,  chap.  908,  §  182. 

N.  Y.  433,  70  N.  E.  967,  rev'g  83  "Home  Ins.   Co.   v.   People,   134 

N.  Y.  Supp.  998,  86  App.  Div.  577;  U.  S.  594,  33  L.  ed.  1025,  10  Sup.  Ct. 

Williams   v.   Western   Union   Teleg.  593;    People    ex    rel.    New   England 

Co.,  48  N.  Y.  Super.  Ct.  (16  Jones  &  Dressed  Meat  &  Wool  Co.  v.  Roberts, 

S.)  349,  368,  rev'd  93  N.  Y.  162;  Peo-  155  N.  Y.  408,  415;  People  v.  Horn 

pie  ex  rel.  Rochester  Ry.  Co.  v.  Pond,  Silver  Mining  Co.,  105  N.  Y.  76,  6 

57N.Y.  Supp.  490,  493,  37  App.  Div.  N.  Y.  St.  Rep.  495,  26  Wkly.  Dig. 

330.     Compare  People  ex  rel.  Man-  158,  11  N.  E.  155,  aff'g  38  Hun,  276; 

hattan  Ry.  Co.  v.  Barker,  146  N,  Y.  People   v.    Equitable  Trust   Co.,   96 

304,  40  N.  E.  996,  165  N.  Y.  305,  310,  N.  Y.  387. 

317,  324,   340,  59   N.   E.    137,  151,  23  People  ex  rel.  Commercial  Cable 

cited  in  People  ex  rel.  Metropolitan  Co.  v.  Morgan,  17S  N.  Y.  433,  rev'g 

St.  Ry.   Co.  v.  Tax  Commissioners,  83  N.   Y.  Supp.  998,   86  App.   Div. 

174  N.  Y.  417,  436,  67  N.  E.  169;  577. 

People  ex  rel.  Manhattan  Ry.  Co.  v.  24  Brooklyn  City  Rd.  Co.  v.  New 

Barker,  152  N.  Y.  417,  439,  452,  46  York  State  Board  of  Tax  Commrs., 

N.  E.  875.  199  U.  S.  48,  50  L.  ed.  79,  25  Sup.  Ct. 

Value  of  franchise  should  be  con-  713. 

792 


TAXATION    OF   FRANCHISES  §    446 

carried  in  the  State,  and  the  amount  of  stocks,  bonds  and  other 
securities  held  in  the  State,  and  the  average  amount  of  bills 
and  accounts  receivable  within  the  State  has  been  sustained.25 
Where  a  real  estate  corporation  is  liable  upon  its  capital  stock 
employed  within  the  State  but  had  only  exercised  its  corporate 
franchises  five  and  one-half  months  of  the  year  for  which  it 
was  taxed,  the  tax  should  be  apportioned  for  such  time,  and 
should  not  be  levied'  for  the  whole  year.26  If  the  amount  varies 
throughout  the  year  the  average  of  capital  should  be  taken.27 
The  good  will  of  a  corporation  engaged  in  importing  the  prod- 
ucts of  foreign  manufacturers  is  an  asset  to  be  considered  in 
fixing  the  amount  of  the  capital  employed  by  the  corporation 
within  the  State.  In  fixing  the  amount  of  such  capital  the 
same  proportion  of  the  value  of  the  entire  good  will  of  the 
corporation  should  be  taken  as  the  amount  of  the  tangible 
capital  employed  within  the  State  bears  to  the  entire  amount 
of  tangible  capital  employed  both  without  and  within  the 
State.28  In  determining  the  value  of  the  stock  of  an  apart- 
ment house  corporation,  taxable  on  its  franchise,  the  real 
rental  value  of  the  apartment  may  be  considered,  although 
such  apartments  are  leased  to  stockholders  in  the  company 
at  a  rate  below  the  rental  value,  in  lieu  of  dividends.29  The 
value  of  a  trade-mark  may  also  be  taken  into  consideration  in 
estimating  the  value  of  capital  stock.30 


"People  ex  rel.  North  American  Y.  574,  76  N.  E.  1105.     See  People 

Co.  v.  Miller,  86  N.  Y.  Supp.  286,  90  ex  rel.  A.  J.  Johnson  Co.  v.  Roberts, 

App.  Div.  560,  aff'd  (mem.)  182  N.  Y.  159  N.  Y.  70,  rev'g  35  App.  Div.  624; 

521.  People  ex   rel.    Hans  Rees'   Sons  v. 

™  People  ex  rel.  Ft.  George  Realty  Miller,  86  N.  Y.  Supp.  193,  90  App. 

Co.  v.  Miller,  179  N.  Y.  526,  71  N.  E.  Div.  591. 

463,  rev'g  86  N.  Y.  Supp.  420,  90  App.  M  People  ex  rel.  Hubert  Apartment 

Div.  588.  Assoc,  v.  Kelsey,  96  N.  Y.  Supp.  745, 

27  People  ex  rel.   Brooklyn  Rapid  110  App.  Div.  617,  aff'd  (mem.)  184 

Transit  Co.  v.  Morgan,  57  App.  Div.  N.  Y.  573,  77  N.  E.  1194. 

335,  68  N.  Y.  Supp.  21,  aff'd  (mem.)  M  Peopleex  rel.  Spencerian  Pen  Co. 

L68N.Y.  672.  v.  Kelsey,  93  N.  Y.  Supp.  971,  105 

M  People  ex  rel.  Koechl  &  Co.  v.  App.  Div.  132,  aff'd  (mem.)  185  N.  Y. 

Morgan,  88   N.    Y.    Supp.    1066,  96  546. 
App.  Div.  110,  afT'd  (mem.)  183  N. 

703 


§    447  TAXATION    OF   FRANCHISES 

§  447.  Franchise  Tax— Capital  Stock,  etc.— Valuation- 
Basis  of  Computation  Continued.— In  a  case  in  the  Federal 
Supreme  Court  where  a  statute  of  Illinois  was  before  the  court 
it  was  held  that  the  capital  stock,  franchise,  and  all  the 
real  and  personal  property  of  corporations,  are  justly  liable 
to  taxation;  and  a  rule  which  ascertains  the  value  of  all  this, 
by  ascertaining  the  cash  value  of  the  funded  debt  and  of  the 
shares  of  the  capital  stock  as  the  basis  of  assessment,  is  prob- 
ably as  fair  as  any  other.  Deducting  from  this  the  assessed 
value  of  all  the  tangible,  real  and  personal  property,  which  is 
also  taxed,  leaves  the  real  value  of  the  capital  stock  and  fran- 
chise subject  to  taxation  as  justly  as  any  other  mode,  all  modes 
being  more  or  less  imperfect.31  In  another  case  in  the  same 
court  where  a  section  of  the  Iowa  Code  was  under  considera- 
tion 32  it  was  decided  that  while  the  tax  on  an  individual  in 
respect  to  his  shares  in  a  corporation  is  not  a  tax  on  the  corpo- 
ration, and  the  value  of  the  shares  may  be  assessed  without 
regard  to  the  fact  that  the  assets  of  the  corporation  include 
government  securities,  if  the  tax  is  actually  on  the  corpora- 
tion although  nominally  on  the  shares  such  securities  may  not 
be  included  in  assessing  the  value  of  the  shares  for  taxa- 
tion.33 In  Kentucky,  in  order  to  ascertain  the  value  of  the 
franchise  of  a  foreign  corporation  for  taxation,  it  is  held 
that  the  value  of  the  capital  stock  being  arrived  at  and  the 
assessed  value  of  tangible  property  deducted,  the  remainder 
constitutes  the  value  of  the  franchise  tax  subject  to  taxation; 
three  things  are  to  be  done  under  the  statute,34  as  follows: 
First.  The  value  of  the  entire  capital  stock  is  to  be  fixed  by 
the  board  of  valuation  and  assessment.  Second.  The  board 
must  then  ascertain  the  gross  receipts  of  the  corporation  in 
that  State  and  the  entire  gross  receipts  from  every  source  in- 
cluding that  State.  Third.  The  board  should  calculate  the 
proportion  which  the  gross  receipts  in  that  State  bear  to  the 

31  State   Railroad    Tax    Cases,    92  Moines,  205  U.  S.  503,  51  L.  ed.  — , 
U.  S.  575,  23  L.  ed.  663.  27  Sup.  Ct.  — . 

32  Code  Iowa,  §  1322.  34  Ky.  Stat.,  §  4080. 

33  Home     Savings    Bank    v.     Des 

794 


TAXATION    OF    FRANCHISES  §    447 

entire  gross  receipts  of  the  taxed  corporation,  and  that  pro- 
portion of  the  value  of  the  entire  capital  stock,  less  the  assessed 
value  of  the  tangible  property  in  that  State,  will  constitute 
the  correct  value  of  the  corporate  franchise  subject  to  taxation 
there  for  state,  county  and  municipal  purposes.35  The  value 
of  a  franchise  is  not  dependent  in  any  sense  upon  the  amount 
which  is  expended  in  creating  it.  The  payment  of  any  sum  of 
money  for  the  purpose  of  perfecting  its  organization  or  putting 
the  company  into  legal  shape  to  do  business  cannot  be  re- 
garded as  a  taxable  asset  in  the  hands  of  the  company,  or  as 
giving  to  the  company  so  organized  any  greater  value  than  if 
its  organization  had  been  perfected  without  incurring  any 
expense;  nor  is  the  value  of  a  franchise  enhanced  because  the 
company  is  required  to  pay  annually  a  license  to  the  State  or 
to  a  foreign  State  to  continue  its  corporate  existence.36  In  the 
case  of  an  interstate  bridge  the  franchise  valuation  for  taxa- 
tion in  that  State  may  be  ascertained  by  determining  what 
per  cent  of  the  length  of  such  bridge  is  within  the  taxing  State, 
and  then  taking  the  same  per  cent  of  the  total  value  of  stock 
and  bonded  indebtedness,  the  assessed  valuation  of  the  tangi- 
ble property  in  that  State  should  be  deducted  therefrom.37 
In  a  case  in  the  United  States  Supreme  Court  it  appeared  that 
the  Henderson  Bridge  Company  was  a  corporation  created  by 
the  commonwealth  of  Kentucky  for  the  purpose  of  erecting 
and  operating  a  railroad  bridge,  with  its  approaches,  over  the 
Ohio  River  between  the  city  of  Henderson,  in  Kentucky,  and 
the  Indiana  shore.  It  owned  9.4G  miles  of  railroad  connections 
in  Indiana,  which  property  was  assessed  for  taxation  in  that 
State,  at  $627,660.  The  length  of  the  bridge  in  the  two  Stales, 
measured  by  feet,  was  one-third  in  Indiana  and  two-thirds  in 
Kentucky.    The  tangible  property  of  the  company  was  assessed 

35  Hager,  etc.,  v.  American  Surety  franchise    might    be    materially    les- 

Co.,2S  Ky.  L.  Rep.  782,90  S.  W.  .r,.r.().  sened  because  of  the  expenditure  of 

3n  Commonwealth,  Hy,  etc.,  v.  Led-  a  large  sum  of  money  in  creating  it-  or 

man,  32  Ky.  L.  Rep.  452,  455,  106  in  perfecting  its  organization." 
S.  W.  247.     Hut  the  court,  per  Las-        "  ( Commonwealth  v.  Covington  & 

sing,  J.,  says:  "On  the  other  band,  C.  Bridge  Co.,  24  Ky.  L.  Rep.  1177, 

we  can  readily  see  how  the  value  of  a  70  S.  \V.  X  10. 

795 


§   448  TAXATION   OF   FRANCHISES 

in  Henderson  County,  Kentucky,  at  $649,735.54.  From  the 
evidence  before  them  the  Board  of  Valuation  and  Assessment 
placed  the  value  of  the  company's  entire  property  at  $2,900,000, 
and  deducted  therefor  $627,660  for  the  tangible  property  as- 
sessed in  Indiana,  which  left  $2,272,340,  of  which  two-thirds, 
or  $1,514,893,  was  held  to  be  the  entire  value  of  the  property 
in  Kentucky.  From  this,  $649,735.54,  the  value  of  the  tangible 
property  in  Henderson  County,  was  deducted,  and  the  remain- 
der, $865,157.46,  was  fixed  by  the  board  as  the  value  of  the 
company's  franchise.  From  the  total  value,  $1,385,107  was 
deducted  for  the  tangible  and  intangible  property  in  Indiana, 
and  the  taxes  in  Kentucky  were  levied  on  $1,514,893  of  tangi- 
ble and  intangible  property  in  that  State.  The  company  paid 
the  tax  on  the  tangible  property  ($2,762.08)  and  refused  to 
pay  the  tax  on  the  intangible  property  ($3,675.91).  This  ac- 
tion was  brought  to  recover  it.  The  Court  of  Appeals  held  that 
the  commonwealth  was  entitled  to  recover  it.  It  was  held  by 
the  Supreme  Court  that  the  company  was  chartered  by  the 
State  of  Kentucky  to  build  and  operate  a  bridge  and  the  State 
could  properly  include  the  franchises  it  had  granted  in  the 
valuation  of  the  company's  property  for  taxation.38  In 
Louisiana,  in  determining  the  value  of  street  railway  franchises 
for  the  purposes  of  taxation,  reference  should  be  had  to  ele- 
ments bearing  directly  upon  said  value  other  than  the  earning 
capacity  as  a  basis.39  But  it  is  also  held  in  that  State  that 
the  earning  capacity  of  a  franchise  should  be  taken  into  con- 
sideration in  determining  its  value.40 

§  448.  Franchise  Tax— Capital  Stock,  etc.— Valuation — 
Basis  of  Computation  Continued. — In  a  case  in  Maine,  where 
the  statute 41  provided  for  an  excise  tax  upon  a  railroad 
based  upon  the  average  gross  transportation  receipts  per  mile 

38  Henderson  Bridge  Co.   v.   Ken-   90;  La.  Const.,  art.  203;  Acts  1890, 
tucky,  166  U.  S.  150,  41  L.  ed.  666,    §§  1,  28. 

17  Sup.  Ct.  305.  40  Rocheblave  Market  Co.  v.  City 

39  St.  Charles  St.  R.  Co.  v.  Board  of   of  New  Orleans,  34  So.  665. 
Assessors,  51   La.  Ann.  458,  25  So.        41  §  42,    chap.    6,    Rev.    Stat.,    as 

am'd  by  chap.  145,  Pub.  Laws  1901. 

796 


TAXATION    OF.  FRANCHISES  §    448 

of  the  railroad  operated,  it  is  held  that  the  mileage  basis  of 
apportionment  in  taxing  railroads  and  other  public  service 
corporations  is  eminently  just,  but  that  there  are  exceptional 
cases  where  deductions  should  be  made  to  prevent  manifest 
inequality  or  value  per  mile;  also,  that  a  railroad  may  be  in  a 
legal  sense  considered  a  unit  capable  of  proportionate  sub- 
divisions by  miles,  but  where  it  is  especially  chartered  to  own 
and  operate,  in  connection  with  its  transportation  business, 
lines  of  steamboats  across  navigable  rivers  beyond  its  termini, 
the  length  of  such  lines  should  be  excluded  from  the  computa- 
tion in  determining  the  franchise  tax.42  Under  a  Nebraska 
decision  the  value  of  the  tangible  property  of  an  express, 
telephone  or  telegraph  company,  apart  from  its  gross  receipts 
for  the  year  prior  to  the  time  of  the  assessment  and  its  fran- 
chise or  right  to  carry  on  its  business,  does  not  furnish  the  true 
value  of  its  property  for  taxation.  Such  value  should  be  ascer- 
tained from  a  consideration  of  all  of  the  aforesaid  items  taken 
together  and  by  treating  the  corporation  as  a  growing  con- 
cern.43 So  in  assessing  the  value  of  railroad  and  telegraph 
property  all  the  elements  which  enhance  its  value  should  be 
considered,  whether  such  elements  consist  of  tangible  or  in- 
tangible property,  and  the  valuation  should  be  so  made  as  to 
comply  with  the  constitutional  rule  of  uniformity.44  Under 
a  New  Jersey  statute  the  amount  of  a  tax  to  be  levied  is  two 
per  centum  of  the  company's  gross  annual  receipts  from  all 
business,  and  not  merely  two  per  centum  of  its  receipts  from 
the  exercise  of  municipal  franchises;  and  a  company  which 
constitutes  a  consolidation  and  merger  of  several  corpora- 
tions and  continues  to  exercise  their  franchises  is  subject  to 
the  taxation  of  its  franchises.15  In  assessing  the  value  of 
the  capital  stock  of  a  corporation  of  Pennsylvania  under  (he 
statute  of  that  State,46  coal  which  is  owned  by  the  corpora- 

42  State    v.    Canadian    Pacific    Ry.  a  Peterson   &    Passaic  Gas  &    EleC. 

Co.,  100  Me.  202,  00  Atl.  901.  Co.  v.  State  Hoard  of  Assessors,  69 

49  Nebraska    Teleg.    Co.     v.     Hall  N.  J.  L.  1  16,  54  Atl.  246,  8  Am.  Elec. 

County  (Neb.,  1906),  L06  N.  W.  171.  Cas.  403,  aff'd  70  N.  J.  L.  825,  59 

"  State  v.  Savage  (Neb.),  91  N.  W.  Atl.  Ills. 
716.  "Act  June  8,  1891. 

797 


§    448  TAXATION    OF    FRANCHISES 

tion,  but  at  the  time  of  the  assessment  is  situated  in  another 
State  and  is  not  to  be  returned  to  Pennsylvania,  should  not 
be  included.  The  same  rule  that  requires  the  exclusion  from 
the  assessment  of  valuation  of  capital  stock  of  tangible  per- 
sonal property  permanently  situated  outside  of  the  State 
applies  to  property  sent  outside  of  the  State  to  be  sold  and 
which  is  actually  out  of  the  State  when  the  assessment  is 
made.  And  while  an  appraisement  of  value  is  in  general  a 
decision  on  a  question  of  fact  and  final,  where  it  is  arrived 
at  by  including  property  not  within  the  jurisdiction  of  the 
State,  it  is  absolutely  illegal  as  made  without  jurisdiction.47 
Again,  a  provision  in  a  statute  of  that  State  for  an  assessment 
upon  the  nominal  or  face  value  of  bonds,  instead  of  upon  their 
actual  value,  was  held  to  be  a  part  of  the  state  system  of  taxa- 
tion, authorized  by  its  constitution  and  laws,  and,  therefore, 
not  a  violation  of  any  provision  of  the  Federal  Constitution.48 
In  Wisconsin  the  property  of  a  public  service  corporation  is 
to  be  valued  for  taxation  as  a  unit,  the  franchise  element  and 
tangible  elements,  whether  in  land  or  movables,  being  regarded 
as  inseparable  parts  of  one  thing  in  which  the  former  so  far 
predominates  as  to  stamp  all  with  the  impress  of  personal 
property.  In  assessing  railway  property  for  taxation,  the 
assessing  agency  is  not  concerned  with  physical  value  except 
as  evidence  of  physical  conditions;  nor  specially  concerned 
with  franchise  value.  All  is  to  be  valued  as  a  unit,  inseparable 
for  the  purpose  of  valuing  any  one  element  or  determining  the 
value,  in  the  whole,  by  adding  together  the  separate  values 
of  elements.  The  rule  that  property  of  a  railway  corporation, 
for  the  purposes  of  direct  taxation,  must  be  valued  as  a  unit, 
reasonably  demands  that  such  value  be  treated  as  a  unit,  and, 
to  the  end  that  the  rule  of  taxation  may  be  uniform,  that  the 
average  rate  of  taxation  on  general  property  throughout  the 
taxing  districts  which,  in  any  reasonable  view,  are  entitled  to 
participate  in  taxing  such  property,  be  applied  thereto,  and 

47  Delaware,  L.  &  W.  Rd.  Co.  v.  "Bell's  Gap  R.  Co.  v.  Pennsyl- 
Pennsylvania,  198  U.  S.  341,  49  L.  vania,  134  U.  S.  232,  10  Sup.  Ct.  533, 
ed.  1077,  25  Sup.  Ct.  679.  33  L.  ed.  892.     See  §  444,  herein. 

798 


TAXATION    OF    FRANCHISES  §   448 

the  avails  be  treated  as  belonging  to  the  State  for  public  pur- 
poses, on  the  theory  of  a  constructive  accounting  between  it 
and  such  taxing  districts.49  So  under  a  Federal  decision  the 
property  of  corporations  engaged  in  interstate  commerce, 
situated  in  the  several  States  through  which  their  lines  or 
business  extends,  may  be  valued  as  a  unit  for  the  purposes  of 
taxation,  taking  into  consideration  the  uses  to  which  it  is  put 
and  all  the  elements  making  up  aggregate  value;  and  a  pro- 
portion of  the  whole  fairly  and  properly  ascertained  may  be 
taxed  by  the  particular  State,  without  violating  any  Federal 
restriction.50  Again,  in  estimating,  for  purposes  of  taxation, 
the  value  of  the  property  of  a  telegraph  company  situate 
within  a  State,  it  may  be  regarded  not  abstractly  or  strictly 
locally,  but  as  a  part  of  a  system  operated  in  other  States; 
and  the  taxing  State  is  not  precluded  from  taxing  the  property 
because  it  did  not  create  the  company  or  confer  a  franchise 
upon  it,  or  because  the  company  derived  rights  or  privileges 
under  the  act  of  Congress  of  1866,  or  because  it  is  engaged  in 
interstate  commerce.51 

49  Chicago  &  Northwestern  Ry.  Co.  Iowa:   Dubuque  v.  Illinois  Cent, 

v.  State,  128  Wis.  553,  108  N.  W.  557,  R.  Co.,  39  Iowa,  56. 

citing  to  the  point  that  the  property  Kansas :  Missouri  River,  Ft.  S.  & 

of  a  railway  corporation  "be  assessed  G.  R.  Co.  v.  Morris,  7  Kan.  210;  Mis- 

as  a  unit;  the  physical  things  being  souri,  K.  &  T.  R.  Co.  v.   Board  of 

regarded  as  merged  in  that  produced  Commrs.,  9  Kan.  App.  545,  59  Pac. 

by  union  with  the  franchise  element:  383. 

the    one    of    primary    importance"  Missouri:  State  ex  rel.  K.  C,  St.  J. 

(Id.  p.  663)  the  following  cases:  &  C.  B.  R.  Co.  v.  Severance,  55  Mo. 

United  States:  Columbus  South-  378. 

em  Ry.  Co.  v.  Wright,  151  U.  S.  470,  Tennessee:    Franklin   County   v. 

14  Sup.  Ct.  396,  38  L.  ed.  238;  State  Nashville,  C.  &  St.  L.  R.  Co.,  12  Lea 

Railroad  Tax  Cases,  92  U.   S.  575,  (80  Tenn.),  521. 

607,  23  L.  ed.  663.  Virginia:    Shenandoah   Valley  R. 

Colorado :  Ames  v.  People,  26  Colo.  Co.  v.  Clarke  County,  78  Va.  269. 

83,  56  Pac.  656;  People  ex  rel.  Iron  Sec  Union  Pacific  Ry.  Co.  v.  Chcy- 

M.  Co.  v.   Henderson,  12  Colo.  369,  enne,  113  U.  S.  516,28  L.   ed.   1098, 

21  Pac.  144;  Carlisle  v.  Pullman  P.  5  Sup.  Ct.  601. 

C.  Co..  8  Colo.  320,  7  Pac.  164,  54  "Adams  Express  Co.  v.  Ohio,  65 

Am.  Rep.  55:5.  U.  S.  194,  41  L.  ed.  683,  17  Sup.  Ct. 

Illinois:  Chicago  &  A.  R.  Co.   v.  305. 

People,  129  111.  571,  22  N.  E.  864,  25  M  Western  Union  Tel.  Co.  v.  Mis- 

N.  E.  5.  souri    ex    rel.    Gottlieb,    190    U.    S. 

799 


§   449  TAXATION   OF   FRANCHISES 

§  449.  Franchise  Tax — Capital  Stock,  etc. — Valuation — 
Basis  of  Computation — Deductions. — A  deduction  from  the 
capital  stock  should  be  made  of  the  amount  of  corporate  funds 
invested  in  shares  of  other  corporations  which  pay  taxes  on 
their  capital  stock.52  Capital  stock  should  be  assessed  at  its 
market  value  subject  to  a  deduction  of  such  amount  of  the 
capital  as  is  invested  in  realty.  Such  amount  to  bear  the 
same  proportion  to  the  market  value  as  the  entire  investment 
sustains  to  the  net  assets.53  Where  a  foreign  corporation 
doing  business  in  New  York  is  acting  as  a  holding  corporation 
of  the  capital  stock  of  constituent  companies  and  its  indebted- 
ness is  incurred  generally  in  its  business  and  not  in  respect  to 
any  particular  asset  which  is  within  the  State,  it  is  not  en- 
titled, on  the  assessment  of  a  franchise  tax,  to  have  its  in- 
debtedness within  the  State  deducted  from  the  capital  which 
is  held  to  be  employed  within  the  State,  but  the  indebtedness 
should  be  deducted  from  the  sum  of  the  assets  of  the  corpora- 
tion wherever  found,  and  such  amount  offset  against  the  value 
of  the  assets  within  the  State  as  will  be  proportionate.54  A 
railroad  company  is  not  entitled  to  be  credited  with  the  average 
amount  of  its  rolling  stock  employed  during  the  year  outside 
of  the  State,  but  only  with  such  amount  of  its  rolling  stock  as 
was  exclusively  and  continuously  used  outside  of  the  State 
during  that  period.55    A  domestic  corporation  is  not  entitled 

412,    23    Sup.    Ct.    730,    47    L.    ed.  that  is,  is  incurred  generally  in  the 

1116.  business,  and  was  not  incurred  in  re- 

52  Commonwealth  v.  People's  Trac-  spect  of  any  particular  asset  which 
tion  Co.,  183  Pa.  405,  39  Atl.  42.  is  within  the  State,  there  is  no  reason 

53  Batterson,  In  re,  72  Conn.  374,  why  it  should  not  be  deducted  from 
44  Atl.  546.  the  sum  of  the  assets  of  the  company 

54  People  ex  rel.  Manhattan  Silk  wheresoever  they  may  be  found,  and 
Co.  v.  Miller,  125  App.  Div.  296.  an  amount  offset  against  the  value 
"  It  may  be  that  there  are  cases  where  of  the  assets  within  this  State  as  will 
the  indebtedness  within  the  State  be  proportionate.  Such  seems  to 
should  be  offset  against  capital  em-  have  been  the  rule  of  this  department 
ployed  within  that  State.  Those  are  in  People  ex  rel.  Rees'  Sons  v.  Miller 
cases,  however,  where  the  indebted-  (90  App.  Div.  591)."  Id.,  298,  per 
ness  was  in  respect  of  the  specific  as-  Smith,  P.  J. 

sets  which  are  found  within  the  State.        55  People  ex  rel.   New  York  Cen- 
Where  the   indebtedness  is  general,    tral  &  Hudson  R.  Rd.  Co.  v.  Miller, 

800 


TAXATION    OF    FRANCHISES  §    450 

to  have  deducted  from  its  gross  assets  the  assets  employed 
without  the  State  and  together  therewith  its  total  liabilities, 
leaving  the  balance  as  the  amount  upon  which  the  franchise 
tax  is  to  be  computed.  A  reduction  should  only  be  made  of 
the  value  of  the  assets  employed  in  the  State  of  such  propor- 
tionate amount  of  the  liabilities  of  the  corporation  as  is  repre- 
sented by  the  ratio  of  the  assets  employed  within  the  State 
to  the  total  assets  of  the  corporation.56  The  aggregate  and 
fairly  appraised  value  of  corporate  property  is  not  subject  to 
a  deduction  of  the  amount  of  corporate  indebtedness,  although 
such  amount  should  be  taken  into  consideration  in  arriving  at 
the  actual  value  of  capital  stock  where  the  purpose  of  the 
statute  is  to  include  the  corporation's  property  consisting  of 
bonds,  mortgages,  franchises,  etc.57  Where  a  corporation  issues 
stock  certificates  representing  a  part  of  the  capital  stock  of 
the  corporation,  such  certificates  cannot  be  deemed  debts  and 
deducted  from  an  assessment  made  by  the  comptroller  for  the 
purpose  of  imposing  a  franchise  tax.58 

§  450.  Value  of  Special  Franchise. — In  assessing  a  special 
franchise  tax,  the  value  of  the  franchise  should,  so  far  as  its 
nature  permits,  be  ascertained  in  the  same  manner  as  the 
value  of  any  other  property.  Where  such  tax  is  assessed 
against  a  water  supply  company  which  owns  three  distinct 
classes  of  property,  the  use  of  which  produces  the  net  earnings ; 
and  such  property  consists  of  tangible  property  outside  of  the 
street;  tangible  property  in  the  street  and  intangible  property 
in  the  street,  each  of  these  three  classes  should  be  considered 
as  contributing  pro  rata  to  the  net  earnings  of  the  company 
according  to  its  respective  value.     On  determining  the  value 

85  N.  Y.  Supp.  998,  aff'd  (mem.)  177  Commonwealth   v.    Manor  Gas  Coal 

N.  Y.  584.  Co.,  188  Pa.  195,  41  Atl.  605;  Com- 

5°  People  ex  rel.  Hyde  &  Sons  v.  monwealth  v.  New  York,  P.  &  O.  R. 

Miller,  85  N.  Y.  Supp.  522,  90  App.  Co.,  188  Pa.  169,  41  Atl.  594. 

Div.    599,   aff'd   (mem.)    179   N.   Y.  "People   ex   rel.    Colm    &   Co.    v. 

564.  Miller,  180  N.  Y.  16,  aff'g  88  N.  Y. 

"  Commonwealth  v.   Beech  Creek  Supp.  197,  94  App.  Div.  564. 
R.   Co.,   188  Pa.   203,  41    Atl.   605; 

51  801 


§   450  TAXATION    OF    FRANCHISES 

of  tangible  and  intangible  property,  actual  value,  not  the  cost, 
is  the  true  basis  for  taxation;  and  hence  intangible  prop- 
erty in  a  public  street,  consisting  of  a  mere  right  to  lay  water 
mains,  must  be  determined  by  treating  it  as  a  part  of  the 
plant  and  basing  its  value  upon  the  net  earnings  and  then 
capitalizing  such  earnings.  Such  intangible  property  has  a 
taxable  value  on  the  theory  that  it  is  earning  an  income  for 
the  company,  and  if  with  good  management  there  is  no  ade- 
quate return,  such  intangible  property  has  little  value.  The 
value  of  the  property  of  a  water  company  for  the  purpose  of 
taxation,  and  especially  its  franchise  and  good  will,  cannot  be 
ascertained  until  the  franchise  tax  and  all  other  taxes  and  a 
proper  replacement  or  upkeep  fund  have  been  deducted  from 
the  current  earnings.  In  determining  the  value  of  the  prop- 
erty of  such  a  corporation  based  principally  upon  its  earnings, 
the  earnings  and  expense  for  one  year  alone  should  not  be 
considered,  but  the  average  earnings  and  expense  for  a  series 
of  years,  or  for  such  time  as  is  reasonably  available,  should  be 
taken.  The  correct  method  of  arriving  at  the  value  of  the 
intangible  property  of  a  water  supply  company  in  a  public 
street  is  as  follows:  From  the  earnings  should  be  deducted 
salaries  and  other  expenses  of  maintenance,  all  taxes,  includ- 
ing the  approximate  amount  of  the  special  franchise  tax  to  be 
assessed,  such  percentage  of  the  earnings  as  is  shown  to  be  a 
reasonable  and  proper  fund  for  replacements  and  upkeep  not 
ordinarily  covered  by  the  current  maintenance  account,  and 
the  balance  of  the  earnings  remaining  should  be  treated  as  the 
actual  net  earnings  of  the  company;  six  per  cent  should  then 
be  deducted  as  a  fair  return  upon  the  value  of  the  real  estate 
and  other  tangible  property,  and  the  surplus  earnings  should 
then  be  capitalized  at  six  per  cent,  which  result  represents 
the  fair  value  of  the  intangible  rights  in  the  street.  To  this 
should  be  added  the  value  of  the  tangible  property  in  the  street, 
the  result  representing  the  value  of  the  special  franchise.59 

59  People   ex   rel.    Jamaica    Water   App.    Div.    13,     112    N.    Y.    Supp. 
Supply   Co.    v.    Tax  Commrs.,    128   392. 
802 


TAXATION    OF    FRANCHISES  §§    451,  452 

§  451.  Deduction    from    Special    Franchise    Tax. — The 

New  York  statute  provides  that  if,  when  the  tax  assessed  on 
any  special  franchise  tax  is  due  and  payable  the  corporation 
has  paid  to  the  city,  etc.,  for  its  exclusive  use  under  any  agree- 
ment therefor,  or  under  any  statute  requiring  the  same  any 
sum  based  upon  a  percentage  of  gross  earnings,  or  any  other 
income,  or  any  license  fee,  or  any  sum  of  money  on  account  of 
such  special  franchise  granted  to  or  possessed  by  such  person, 
copartnership,  association  or  corporation,  which  payment  was 
in  the  nature  of  a  tax,  all  amounts  so  paid,  except  money  paid 
or  expended  for  paving  or  repairing  of  pavement  of  any  street, 
etc.,  shall  be  deducted  from  any  tax  based  on  the  assessment 
made  by  the  State  Board  of  Tax  Commissioners  for  city,  etc., 
purposes,  and  the  remainder  shall  be  the  tax  on  such  special 
franchise.  This  section  of  the  Tax  Law  does  not  authorize  a 
deduction  from  the  amount  assessed  against  the  franchise  of  a 
street  surface  railroad  of  the  amount  of  the  lamp  tax  levied 
against  the  property  of  the  street  railroad  company  under  the 
provisions  of  a  city  charter.  The  payment  made  by  the  street 
railway  company  which  is  to  be  deducted  must  be  in  the 
nature  of  a  tax.  So  where  under  an  agreement  between  a 
street  railway  company  and  the  city,  subsequently  ratified  by 
statute,  the  street  railroad  company  agreed  to  pay  to  the  city 
certain  percentages  of  its  gross  receipts,  such  payment  should 
be  deducted  from  the  amount  payable  under  the  special  fran- 
chise tax  law.60 

§  452.  Exemption  or  Immunity  from  Taxation— Whether 
a  Franchise  or  Privilege. — We  have  considered  elsewhere 
the  question  whether  exemption  or  immunity  from  taxation 
is  a  franchise; 61  but  exemption  from  taxation  may  or  may  not 
be  a  "privilege"  within  the  sense  in  which  that  word  is  used  in 
a  statute,  and  in  the  act  of  North  Carolina,  incorporating  a 

80  Heenvagen  v.  Crosstown  St.  I.'y.    275,  modified    179  N  Y.  99,  71  N.  E. 
Co.,86N.  Y.  Supp.  219,  90  App.  Div     729. 

61  See  §  20,  herein. 

803 


§    453  TAXATION    OF    FRANCHISES 

railroad  company,62  the  word  "privileges"  does  not  include 
such  exemption.63 

§  453.  Power  to  Exempt  from  Taxation— State,  Munici- 
pality and  Board  of  Assessment — Local  Taxation. — Unless 
prohibited  by  the  constitution  a  State  has  undoubted  power 
to  exempt  through  its  legislature  or  by  contract  certain  prop- 
erty, by  reasonable  provisions,  from  taxation ; 64  and  the  power 
to  tax  includes  the  power  to  exempt  within  constitutional 
limitations.65  If  the  constitution  requires  a  tax  upon  property, 
the  legislature  has  no  power  to  exempt  it  therefrom.66  In  the 
case  of  a  municipality  the  power  to  exempt  property  within 
its  limits  from  taxation  must  be  conferred  by  legislative  act.67 
And  a  state  board  of  valuation  and  assessment  cannot  validly 
agree  to  release  a  corporation  from  the  payment  of  local  taxes 
upon  its  franchise.68  But  a  telephone  company  may  be  made 
exempt  from  local  taxation  under  an  incorporation  statute 
imposing  certain  taxes  in  lieu  of  all  other  taxes.69  A  clause, 
however,  in  a  statute  exempting  property  from  taxation  does 
not  release  it  from  liability  for  assessments  for  local  improve- 
ments. It  has  been  held  in  Mississippi  not  only  that  special 
assessments  for  local  improvements  do  not  come  within  the 
constitutional  limitation  as  to  taxation,  but  also  that  the  con- 
struction and  repair  of  levees  are  to  be  regarded  as  local  im- 
provements for  which  the  property  specially  benefited  may  be 

62  Act  January  3,  1834.  e6  Crocker  v.  Scott,  149  Cal.  575, 

63  Wilmington  &  W.  R.  Co.  v.  Als-   87  Pac.  102;  Mackay  v.  San  Fran- 
brook,  146  U.  S.  279,  13  Sup.  Ct.  72,    cisco,  113  Cal.  392,  45  Pac.  696. 

36  L.  ed.  972.  67  Tampa  v.  Kannitz,  39  Fla.  687, 

"Tomlinson  v.  Branch,  15  Wall.  23  So.  416,  63  Am.  St.  Rep.  202. 

(82  U.  S.)  460,  21  L.  ed.  189;  Jefferson  68  Southern  Ry.  Co.  v.  Coulter,  24 

Bank  v.  Skelly,  1  Black  (66  U.  S.),  Ky.  L.  Rep.  203,  68  S.  W.  873. 

436,  17  L.  ed.  173;  Ohio  Life  Ins.  Co.  69  Attorney  Genl.  v.  Detroit,   113 

v.  Debolt,  16  How.  (57  U.  S.)  416,  14  Mich.  388,  71  N.  W.  632,  4  Det.  L.  N. 

L.  ed.  997;  William  S.  Wilkins  Co.  v.  326;    Mich.    Pub.    Acts,    1883,    Act 

City  of  Baltimore,  103  Md.  293,  63  No.    129,   §  8,    3    How.    Ann.   Stat., 

Atl.  562;  Wallace  v.  Board  of  Equal-  §  3718/i;  Mich.  Sess.  Laws,  1881,  Act 

ization  (Oreg. ,  1906) ,  86  Pac.  365.  No.  168. 

63  Colton  v.  City  of  Montpelier,  71 
Vt.  413,  45  Atl.  1039. 

804 


TAXATION    OF    FRANCHISES  §    454 

assessed;  and  this  rule  is  in  harmony  with  that  recognized 
generally  elsewhere,  to  the  effect  that  special  assessments  for 
local  improvements  are  not  within  the  purview  of  either  con- 
stitutional limitations  in  respect  of  taxation,  or  general  exemp- 
tions from  taxation.70 

§  454.  Duration  and  Extent  of  Exemption  from  Taxa- 
tion.— A  tax  on  the  value  of  the  capital  stock  of  a  corpora- 
tion is  a  tax  on  the  property  in  which  that  capital  is  invested, 
and  therefore  no  tax  can  be  levied  upon  the  corporation  issuing 
the  stock  which  includes  property  that  is  otherwise  exempt.71 
If  the  charter  of  a  railroad  company  contains  a  provision  that 
"The  capital  stock  of  said  company  shall  be  forever  exempt 
from  taxation,  and  the  road,  with  all  its  fixtures  and  appurte- 
nances, including  workshops,  machinery,  and  vehicles  of  trans- 
portation, shall  be  exempt  from  taxation  for  a  period  of  twenty 
years  from  the  completion  of  the  road  and  no  longer,"  such 
provision  does  not,  after  the  expiration  of  that  period,  exempt 
from  taxation  the  road  with  its  fixtures,  etc.,  although  the 
same  were  purchased  with  or  represented  by  capital.72  Where 
the  legislature  of  Tennessee  had,  under  the  Constitution  of  the 
State,  power  to  and  did  grant  to  a  railroad  company  an  exemp- 
tion from  taxation,  under  an  act  incorporating  it,  in  the  fol- 
lowing terms:  "That  the  capital  stock  of  said  company  shall  be 
forever  exempt  from  taxation  and  the  road,  with  all  its  fix- 
tures and  appurtenances,  including  workshops,  warehouses,  and 
vehicles  of  transportation,  shall  be  exempt  from  taxation  for 
the  period  of  twenty-five  years  from  the  completion  of  the 
road,  and  no  tax  shall  ever  be  laid  on  said  road  or  its  fixtures 
which  will  reduce  the  dividends  below  eight  per  cent,"  it  was 
held  that  under  such  provisions  the  capital  stock  of  the  com- 
pany was  forever  exempt  from  taxation  during  the  existence  of 

70  Ford  v.  Delta  &  Pine  Land  Co.,  Pennsylvania,  198  U.  S.  341, 49  L.  ed. 

164  U.  S.  662,  17  Sup.  Ct.  230,  41  1077,  25  Sup.  Ct.  669. 

L.  ed.  390.    Examine  Yazoo  &  M.  V.  "Railroad   Companies    v.   Gaines, 

R.  Co.  v.  Board  of  Levee  Commrs.  97U.S.  697,24  L.  ed.  L091.    See  also 

(C.  C),  37  Fed.  24.  Tennessee  v.   Whitworth,  117  U.  S 

"Delaware,  L.  &  W.  Rd.  Co.  v.  129,29  L.  ed.  830,  6  Sup.  Ct.  845. 

805 


§   454  TAXATION    OF   FRANCHISES 

the  corporation;  and  the  road,  fixtures,  etc.,  were  exempt  for 
twenty-five  years  after  the  completion  of  the  road,  and  said 
term  having  expired,  it  was  also  held  that  the  corporation  could 
be  taxed  only  when  the  net  earnings  of  the  road  were  more  than 
sufficient  to  pay  to  the  stockholders,  on  the  then  existing  basis 
of  its  capital,  a  dividend  of  eight  per  cent  a  year.73  If  a  statute 
exempts  all  the  property  of  a  railroad  corporation  from  taxa- 
tion, it  exempts  not  only  the  rolling  stock  and  real  estate 
owned  by  it  and  required  by  the  company  for  the  successful 
prosecution  of  its  business,  but  its  franchise  also.74  In  the  case 
of  a  foreign  corporation,  whose  principal  place  of  business  is 
within  the  taxing  State,  and  a  very  large  proportion  of  whose 
preferred  stock  is  held  by  residents  thereof,  it  is  not  entitled 
to  an  exemption  from  taxation  of  its  tangible  property  within 
the  State,  under  an  exemption  in  a  statute  of  the  personal 
property  of  corporations  incorporated  by  the  State,  when  the 
laws  of  the  State  subject  the  corporation's  shares  to  taxation'.75 
An  exemption  from  taxation  is  to  be  taken  as  an  exemption 
from  the  burden  of  ordinary  taxes,  and  does  not  relieve  from  the 
obligation  special  assessments,  imposed  to  pay  the  cost  of  local 
improvements,  and  charged  upon  contiguous  property  upon  the 
theory  that  it  is  benefited  thereby.  So  provisions  in  an  act  of 
Illinois,  incorporating  a  railroad  company,76  and  exempting  it 
from  taxation,  do  not  exempt  it  from  the  payment  of  a  munici- 
pal assessment  upon  its  land  within  a  municipality  in  the  State, 
laid  for  the  purpose  of  grading  and  paving  a  street  therein.77 
Again,  a  statutory  exemption  from  taxation,  conferred  upon  a 
railroad  company  by  its  charter,78  is  held  not  to  extend  to 

73  Mobile  &  O.  R.  R.  Co.  v.  Tennes-   Baltimore,  103  Md.  293,  63  Atl.  562; 
see,  153  U.  S.  486,  14  Sup.  Ct.  968,  38   Gen.  L.  1904,  art.  81,  §  2. 

L.  ed.  785.  76  Private  Laws  111.,  1851,  61,  72, 

74  Wilmington  Railroad  v.  Reid,  13    §  22,  incorporating  The  Illinois  Cen- 
Wall.  (80  U.  S.)  264,  20  L.  ed.  568.    tral  Railroad  Company. 

See  also  Ford  v.  Delta  &  Pine  Land  77  Illinois  Central  R.  Co.  v.  Decatur, 

Co.,  164  U.  S.  662,  17  Sup.  Ct.  230,  147  U.  S.  190,  13  Sup.  Ct.  293,  37  L. 

41  L.  ed.  390.  ed.  132. 

75  William  S.  Wilkins  Co.  v.  City  of  78  Miss.  Act,  November  23,    1859, 

c.  14,  §  19. 

806 


TAXATION   OF   FRANCHISES  §   454 

property  other  than  that  used  in  the  business  of  the  company, 
acquired  under  the  authority  of  a  subsequent  act  of  the  legis- 
lature in  which  there  was  no  exemption  clause.79  The  provision 
in  the  act  of  Congress  of  18<36,80  which  exempts  from  taxation 
within  the  Territories  of  the  United  States,  the  right  of  way 
granted  by  the  act  to  the  Atlantic  &  Pacific  Railroad  Company, 
operates  to  exempt  from  such  taxation  the  land  itself  to  the 
extent  to  which  it  is  made  by  the  act  subject  to  such  right  of 
way  and  all  structures  erected  thereon.81  Where  a  limitation 
is  placed  upon  the  amount  up  to  which  property  shall  be 
exempt,  such  exemption  extends  to  property  in  excess  of  such 
limited  and  specified  sum,  even  though  such  excess  arises  from 
the  fact  that  there  has  been  an  increase  in  value  since  the 
property  was  acquired.82  If  the  exemption  is  subject  to  con- 
ditions as  to  completion  of  a  railroad  and  declaring  dividends 
within  a  certain  period  of  time  a  contract  is  created  that  the 
railroad  company,  subject  to  such  conditions,  shall  not  be 
taxed.83  In  case  a  constitutional  provision  exempts  railroads, 
thereafter  constructed  and  completed  before  a  certain  date, 
from  taxation,  but  excludes  railroads  substantially  completed 
at  the  time  of  the  adoption  of  the  constitution,  it  embraces,  as 
within  the  meaning  of  those  words,  a  railroad  which  lacks  only 
a  small  per  cent  of  being  completed.84  Again,  where  a  charge 
upon  the  gross  revenues  of  a  street  railroad  company  is  im- 
posed in  lieu  of  all  other  taxes  and  upon  the  payment  of  such 
license  fee  the  company  is  exempt  by  statute  from  taxation  on 
all  real  estate  which  it  owns  and  actually  and  necessarily  uses 
in  its  business,  such  exemption  will  include  leased  property 
which  is  so  used  and  upon  which  the  required  license  fee  has 

78  Ford  v.  Delta  &  Pine  Land  Co.,        82  Evangelical    Baptist    Missionary 

1G4  U.  S.  662,  41  L.  ed.  590,  17  Sup.  Society   v.    City   of   Boston    (Mass., 

Ct.  230.     See  also  St.  Paul,  etc.,  R.  1906),  78  N.  E.  407. 
Co.  v.  St.  Paul,  39  Minn.  112,  38  N.        M  Pacific  Railroad  v.  Maguire,  20 

W.  925.  Wall.  (87  U.  S.)  36, 22  L.  ed.  282. 

80  Act  July  27,   1866,  c.  328,  §2,       8*  Louisiana  &   N.   W.   R.   Co.    v. 
14  Stat.  292,  294.  State  I  Joard  of  Appraisers,  108  La.  14, 

81  New    Mexico    v.    United    States  32  So.  184. 
Trust  Co.,  172  U.  S.  171,  19  Sup.  Ct. 

128,  43  L.  ed.  407. 

807 


§    455  TAXATION    OF    FRANCHISES 

been  paid  for  a  number  of  years.85  An  authority  to  exempt 
from  taxation  property  devoted  to  religious,  charitable  and 
educational  purposes,  conferred  by  a  constitution  upon  the 
legislature,  includes  the  proceeds  of  such  property.86 

§  455.  Surrender  of  Power  of  Taxation— Presumptions- 
Exemption  from  Taxation— Statutory  Construction.— The 

surrender  of  the  power  of  taxation  by  a  State  cannot  be  left  to 
inference  or  conceded  in  the  presence  of  doubt,  and  when  the 
language  used  admits  of  reasonable  contention,  the  conclusion 
is  inevitable  in  favor  of  the  reservation  of  the  power.87  So  an 
alleged  surrender  or  suspension  of  a  power  of  government  re- 
specting any  matter  of  public  concern  must  be  shown  by  clear 
and  unequivocal  language;  it  cannot  be  inferred  from  any  in- 
hibition upon  particular  officers,  or  special  tribunals,  or  from 
any  doubtful  or  uncertain  expression.88  Presumptively  all 
property  within  the  territorial  limits  of  a  State  is  subject  to  its 
taxing  power,  and  the  burden  of  proof  is  on  one  claiming  that 
any  particular  property  is  by  contract  or  otherwise  beyond  the 
reach  thereof;  and  growing  out  of  the  conditions  of  modern 
business,  a  large  proportion  of  valuable  property  is  now  to  be 
found  in  intangible  things  such  as  franchises,  which  are,  like 
other  property,  subject  to  taxation;89  and  grants  of  immunity 

85  Merrill  Ry.  &  Lighting  Co.  v.  authorized  to  construct.  See  §  138 
City  of  Merrill,  119  Wis.  249,  96  N.    herein. 

W.  686;  Rev.  Stat.,  1898,  §1038,  88  Wheeling  &  Belmont  Bridge  Co. 
subd.  14.  v.  Wheeling   Bridge  Co.,  138  U.  S. 

8"  Staunton,  City  of,  v.  Mary  Bald-  287,  34  L.  ed.  967,  11  Sup.  Ct.  301; 
win  Seminary,  99  Va.  653,  3  V.  Sup.  Jefferson  Bank  v.  Skelly,  1  Black  (66 
Ct.  Rep.  468,  39  S.  E.  596;  Const.,  U.  S.),436,  17  L.  ed.  173;  Ohio  Life 
art.  10,  §  3.  Ins.  Co.  v.  Debolt,  16  How.  (57  U.  S.) 

87  Wilmington  &  W.  R.  Co.  v.  Als-  416,  14  L.  ed.  997;  Knoup  v.  Piqua 
brook,  146  U.  S.  279,  13  Sup.  Ct.  72,  Bank,  1  Ohio  St.  603.  See  also 
36  L.  ed.  972,  applied  to  an  exemp-  New  Orleans  City  &  L.  R.  Co.  v. 
tion  from  taxation  conferred  upon  the  New  Orleans,  143  U.  S.  192,  36  L.  ed. 
Wilmington  and  Raleigh  Railroad  121,  12  Sup.  Ct.  406. 
Company  by  the  Act  of  January  3,  89  Metropolitan  St.  Ry.  Co.  v. 
1834,  incorporating  it,  and  it  was  New  York  State  Board  of  Tax 
held  that  such  exemption  was  not  Commrs.,  199  U.  S.  1,  50  L.  ed.  65, 
conferred  by  that  act  upon  the  25  Sup.  Ct.  713. 
branch  roads  which  the  company  was 

808 


TAXATION    OF    FRANCHISES  §    455 

from  legitimate  governmental  control  are  never  to  be  pre- 
sumed; unless  an  exemption  is  clearly  established  the  legis- 
lature is  free  to  act  on  all  subjects  within  its  general  jurisdic- 
tion, as  the  public  interest  may  require.90  Although  it  has 
been  repeatedly  held  by  the  Federal  Supreme  Court  that  the 
legislature  of  a  State  may  exempt  particular  parcels  of  prop- 
erty or  the  property  of  particular  persons  or  corporations  from 
taxation,  either  for  a  specified  period  or  perpetually,  or  may 
limit  the  amount  or  rate  of  taxation  to  which  such  property 
shall  be  subjected,  and  that  when  such  immunity  is  conferred, 
or  such  limitation  is  prescribed  by  the  charter  of  a  corporation 
it  becomes  a  part  of  the  contract,  and  is  equally  inviolate  with 
its  other  stipulations ;  yet  before  any  such  exemption  or  limita- 
tion can  be  admitted,  the  intent  of  the  legislature  to  confer  the 
immunity  or  prescribe  the  limitation  must  be  clear  beyond  a 
reasonable  doubt.  All  public  grants  are  strictly  construed,  and 
nothing  can  be  taken  against  the  State  by  presumption  or  in- 
ference. The  established  rule  of  construction  in  such  cases  is 
that  rights,  privileges  and  immunities  not  expressly  granted 
are  reserved;91  and  no  claims  for  exemptions  from  taxation 
can  be  sustained  unless  within  the  express  letter  or  the  neces- 
sary scope  of  the  exempting  clause.92    It  is  held,  however,  that 

90  Ruggles  v.  Illinois,  108  U.  S.  526,  17    Sup.    Ct.    230,    41    L.    ed.    390; 

2  Sup.  Ct.  832,  27  L.  ed.  812.     See  Georgia  R.  &  Bkg.  Co.  v.  Smith,  128 

Gilman   v.   Sheboygan,  2   Black   (07  U.  S.  174,  32  L.  ed.  377,  9  Sup.  Ct.  47, 

U.  S.),  510,  17  L.  ed.  305.  16  Wash.  L.  Rep.  749;  Chicago,  B.  & 

No  presumption  exists  in  favor  of  K.  C.  R.  Co.  v.  Guffey,  120  U.  S.  569, 

a  contract  by  a  State  to  exempt  lands  7  Sup.  Ct.  693,  30  L.  ed.  732;  Mem- 

from    taxation.      Every    reasonable  phis  Gas  Co.  v.  Shelby  County,  109 

doubt  should  be  resolved  against  it.  U.  S.  398,  27  L.  ed.  1006,  3  Sup.  Ct. 

When  such  a  contract  exists  it  must  327;  Hoge  v.  Railroad  Co.,  99  U.  S. 

be  rigidly  scrutinized  and  never  per-  348,  25  L.  ed.  303;  North  Missouri  R. 

mitted  to  extend,  either  in  scope  or  Co.  v.  Maguire,  20  Wall.   (87  U.  S.) 

duration,    beyond    what    the    terms  46,  22  L.  ed.  287. 

of    the    concession    clearly    require.        Illinois:  People,  Kochersperger,  v. 

Tucker   v.    Ferguson,    22   Wall.    (89  Chicago   Theological    Seminary,    1 7 1 

U.  S  )  527,  22  L.  ed.  805.  111.  177,  51  N.  E.  198;  Bloomington 

51  Delaware  Hail  road  Tax,  18  Wall,  Cemetery  Assoc,  v.  People,   170  111. 

(85  U.  S.)  206,  21  L.  ed.  888.  "  377,  30  Chic.  Leg.  News,  187,  48  N.  E. 

92  United  States:  Ford  v.  Delta  &  905;  People,  Davis,  v.  Chicago,  124 

Pine  Grove  Land  Co.,  164  U.  S.  662,  111.  636,  17  N.  E.  56. 

809 


§    455  TAXATION    OF   FRANCHISES 

while  the  rule  requiring  a  strict  construction  of  statutes  exempt- 
ing property  from  taxation  should  not  be  infringed,  still  it  is 
the  duty  of  the  court  to  determine  whether  doubt  exists  and 
to  solve  it  and  not  to  immediately  surrender  to  it.93  It  is  also 
decided  that  where  a  certain  class  of  property  has  by  settled 
custom  and  policy  been  entitled  for  a  long  period  of  time  to  be 
exempt  from  taxation,  as  in  case  of  property  held  for  religious 
and  charitable  purposes,  a  statute  taxing  such  property  must 
show  the  intent  so  to  do  by  language  clearly  expressing  such 
intent,  as  a  presumption  in  favor  of  such  taxation  will  not 
exist.94  In  connection  with  this  last  decision  the  following  case 
in  the  Federal  courts  is  pertinent.  The  facts  were  these:  Sec- 
tion 5  of  the  act  of  1855  of  the  General  Assembly  of  Illinois,  in- 
corporating the  plaintiff,  provided:  "That  the  property  of 
whatever  kind  or  description  belonging  or  appertaining  to  said 
seminary  shall  be  forever  free  and  exempt  from  all  taxation  for 
all  purposes  whatever."  Section  2  provided:  "That  the  sem- 
inary shall  be  located  in  or  near  the  city  of  Chicago."  Property 
of  the  incorporation  other  than  the  seminary  buildings  was 

Louisiana:   State  v.  New  Orleans  Utah:  Judge  v.  Spencer,  15  Utah, 

Ry.  &  Light  Co.,  116  La.  144,  40  So.  242,  48  Pac.  1097. 

597;  Louisiana  &  N.  W.  R.  Co.  v.  Washington:  Thurston  County  v. 

State  Board  of  Appraisers,  108  La.  14,  Sisters  of  Charity,  14  Wash.  264,  44 

32  So.  184;  Penrose  v.  Chaffraix,  106  Pac.  252. 

La.  250,  30  So.  718;  State  of  Lou-  Examine     Brown     University     v. 

isiana  v.  Morgan,  28  La.  Ann.  482.  Granger,  19  R.  I.  705,  36  L.  R.  A. 

Nebraska:  Lincoln  St.   R.  Co.  v.  847. 

City  of  Lincoln,  61  Neb.  109,  110,84  See     §§23,     209,     252,     254-257, 

N.  W.  802;    Young  Men's  Christian  herein. 

Assoc,  of  Omaha  v.  Douglas  County,  Exemptions  from  taxation,  being 

60  Neb.  642,  83  N.  W.  924,  52  L.  R.  in  derogation  of  the  sovereign  au- 

A.  123.  thority  and  of  common  right,  are  not 

New  Jersey:    Sisters  of  Charity  to  be  extended  beyond  the  express 

of  St.  Elizabeth  v.  Corey,  73  N.  J.  L.  requirements  of  the  language  used, 

699,  65  Atl.  500;  Cooper  Hospital  v.  when  most  rigidly  construed.    Yazoo 

City  of  Camden  (N.  J.  L.),  57  Atl.  260.  &  M.  V.  R.  Co.  v.  Thomas,  132  U.  S. 

Oregon:     Wallace    v.     Board    of  174,  33  L.  ed.  302,  10  Sup.  Ct.  68. 

Equalization   (Oreg.,  1906),  86  Pac.  "Citizens'    Bank   v.    Parker,    192 

365.  U.  S.  73,  48  L.  ed.  346,  24  Sup.  Ct. 

Tennessee:  Knoxville  &  O.  R.  Co.  181. 

v.  Harris,  99  Tenn.    684,   43  S.  W.  •«  Mattern  v.  Canevin,  213  Pa.  588, 

115.  63  Atl.  131. 

810 


TAXATION    OF    FRANCHISES  §    455 

taxed  under  the  general  taxing  law  of  1872.  The  Supreme 
Court  of  Illinois  construed  the  statute  of  1855  as  meaning  that 
the  exemption  was  limited  to  property  used  in  immediate  con- 
nection with  the  seminary  and  did  not  refer  to  other  property 
held  by  the  institution  for  investment,  although  the  income 
was  used  solely  for  school  purposes.  It  was  held  that  as  the 
rule  of  the  Supreme  Court  of  Illinois  in  construing  an  act 
exempting  property  from  taxation  under  legislative  authority, 
was  that  the  exemption  must  be  plainly  and  unmistakably 
granted  and  could  not  exist  by  implication  only,  a  doubt  being 
fatal  to  the  claim,  and  as  the  construction  placed  on  the  act 
was  not  such  an  unnatural,  strained  or  unreasonable  construc- 
tion as  showed  it  to  be  erroneous,  the  judgment  would  be 
affirmed  even  though  the  statute  might  be  otherwise  construed 
so  as  to  effect  a  total  exemption.  The  act  incorporating  the 
seminary  also  provided  that:  "It  shall  be  deemed  a  public  act 
and  be  construed  liberally  in  all  courts  for  the  purposes  therein 
expressed."  It  was  decided  that  such  provision  should  not  be 
construed  as  a  complete  overthrow  of  the  canon  of  construction 
adopted  by  the  Supreme  Court  of  Illinois  in  regard  to  exemption 
of  property  from  taxation.95  Again,  the  rule  of  strict  construc- 
tion of  exemptions  from  taxation  is  held  not  applicable  when 
the  statute  simply  changes  the  method  of  taxation.96  Where  a 
statute,  imposing  taxes  upon  corporate  franchises,  provided 
that:  "This  act  shall  not  be  construed  to  apply  to"  certain  cor- 
porations, it  was  decided  that  the  purpose  of  the  legislature 
was  not  to  curtail  to  any  extent  the  judicial  power  of  interpre- 
tation but  to  limit  the  scope  of  the  act  itself;  that  it  was  a  leg- 
islative declaration  that  the  designated  corporations  should  be 
exempted  from  the  operation  of  the  statute.97  A  constitutional 
limitation  upon  the  legislature  as  to  exemptions  from  taxation 
is  prospective  and  not  retroactive  as  to  charter  exemptions.98 

95  Chicago  Theological  Seminary  v.  "Board  of  Assessors  v.  Plainfield 

Illinois,  188  U.  S.  6G2,  47  L.  ed.  G41,  Water  Supply  Co.,  07  N.  J.  L.  357,  52 

23  Sup.  Ct.  386.  All.  230. 

8"  Binghamton  Trust  Co.   v.   City  M  State  ex  rel.  Morris  v.  Board  of 

of  Binghamton,  76  N.  Y.  Supp.  517,  Trustees    of    Westminster     College, 

72  App.  Div.  341.  175  Mo.  52,  74  S.  W.  990;  Const'ns 

811 


§    456  TAXATION    OF    FRANCHISES 

§  456.  Constitutional  Law— Validity  of  Exemption  from 
Taxation. — Nothing  in  the  Federal  Constitution  prevents  a 
State  from  granting  exemptions  from  taxation ;  and  the  reduc- 
tion, upon  equitable  considerations  of  payments  made  in  the 
nature  of  taxes  of  certain  corporations  on  their  franchises  from 
the  amount  to  which  they  are  subjected  by  a  general  law  does 
not  entitle  every  franchise  owner  to  a  similar  reduction  and 
render  the  tax  invalid  because  it  denies  the  holders  of  some 
franchises  the  equal  protection  of  the  law  or  deprives  them  of 
their  property  without  due  process  of  law."  So  the  rights  of 
an  individual  under  the  Fourteenth  Amendment  turn  on  the 
power  of  the  State.  A  State  does  not  infringe  such  rights  under 
that  amendment  by  exempting  a  corporation  from  a  tax,  either 
in  whole  or  in  part,  whether  such  exemption  results  from  the 
plain  language  of  a  statute  or  from  the  conduct  of  a  state 
official  under  it.1  There  may  also  be  an  exemption  of  one  class 
of  corporations  from  taxation  without  the  statute  being  invalid 
as  to  other  corporations.2  And  a  statute  which  provides  for  a 
deduction  of  shares  of  stock  of  a  national  bank  invested  in  real 
estate,  and  on  which  such  bank  pays  a  tax,  from  the  market 
value  of  the  shares,  is  not  unconstitutional.3  Legislation,  how- 
ever, which  is  in  effect  an  attempt  to  create  an  express  exemp- 
tion from  taxation  of  corporation  property  contrary  to  the  con- 
stitutional provisions  of  a  State  is  void,  even  though  the  kind 
of  property  attempted  to  be  so  made  exempt  is  not  mentioned 
in  the  constitution  which  provides  for  equal  and  uniform  taxa- 
tion and  permits  the  exemption  of  certain  kinds  of  property.4 
So  a  statute  which  does  not  properly  classify  property  for 
exemption  violates  a  constitutional  provision  which  requires 
uniform  taxation.5     But  an  exemption  of  a  water  company 

of    1865,    1875.       See    §§  215,    287,        2  W.  C.  Peacock  &  Co.  v.  Pratt,  121 

herein.  Fed.  772,  58  C.  C.  A.  48. 

99  Metropolitan     St.     Ry.     Co.     v.        3  Middletown  Nat.  Bank  v.  Town  of 

New  York  State  Board  of  Commrs.,  Middletown,  74  Conn.  449,  51   Atl. 

199  U.  S.  1,  50  L.  ed.  65,  25  Sup.  Ct.  138. 
705.  4  State  Nat.  Bank  v.  City  of  Mem- 

1  Missouri  v.   Dockery,  191   U.   S.  phis,  116  Tenn.  641,  94  S.  W.  603. 
165,  24  Sup.  Ot.  53,  48  L.  ed.  33.  6  Adams  v.  Kuykendall  (Miss.),  35 

812 


TAXATION    OF   FRANCHISES  §§   457,  458 

from  municipal  taxation  based  upon  a  consideration  that  the 
company  give  the  city  the  use  of  water  for  certain  purposes 
free  of  charge  is  not  illegal,  as  it  constitutes  merely  an  offset 
against  taxes  of  the  value  of  the  water  used  by  the  city.6 

§  457.  Obligation  of  Contracts — Exemption  from  Taxa- 
tion— Preliminary  Statement. — We  have  considered  under 
prior  sections  the  principles  governing  cases  as  to  obligation 
of  contracts,  the  impairment  thereof  and  also  the  right  to  alter, 
amend  or  repeal  reserved  to  the  legislative  body,  and  the  ap- 
plication of  these  doctrines  in  matters  relating  to  corporations 
and  their  franchises,7  and  shall,  therefore,  only  consider  here 
certain  questions  as  to  exemptions  from  taxation  in  connection 
with  the  obligation  of  contracts. 

§  458.  Obligation  of  Contracts — Reservation  of  Power  to 
Alter,    Amend    or    Repeal — Exemption    from    Taxation.— 

The  object  of  a  reservation  of  the  right  of  the  legislature  to 
repeal,  alter  or  amend  a  charter  is  to  prevent  a  grant  of  corpo- 
rate rights  and  privileges  in  a  form  which  will  preclude  legis- 
lative interference  with  their  exercise,  if  the  public  interests 
should  at  any  time  require  such  interference,  and  to  preserve 
the  state  control  over  its  contract  with  the  corporators,  which 
would  otherwise  be  irrepealable  and  protected  from  any  meas- 
ure affecting  its  obligation.  Immunity,  therefore,  from  taxa- 
tion, constituting  a  part  of  a  contract  between  the  government 
and  a  corporator  or  stockholder,  is,  by  the  reservation  of  power 
contained  in  a  general  law  enacted  prior  to  the  grant  of  the 
charter,  subject  to  be  revoked  equally  with  any  other  provision 
of  the  charter,  whenever  the  legislature  may  doom  it  expedient, 
for  the  public  interest  that  the  revocation  should  be  made. 
The  reservation  affects  the  entire  relation  between  the  State 

So.  830;  Const.,  art.   12,  §20;  Mu-  R.  Co.  v.  McLean  County,  17  111.  29 1 ; 

nicipal  Charter,  Acts  1884,  p.  445,  Grant  v.   Davenport,  36  towa,  405; 

c.  391,  §  31.  Portland  v.   Portland  Water  Co.,  67 

n  Bartholomew  v.  Austin,  85  Fed.  Me.  L35. 

359,  52  T.  S.  App.  512,  29  C.  C.  A.  '  See  §§  301-340,  482,  herein. 
508.      Distinguishing    Illinois    Cent. 

813 


§    458  TAXATION    OF    FRANCHISES 

and  the  corporation,  and  places  under  legislative  control  all 
rights,  privileges  and  immunities  derived  by  the  charter  di- 
rectly from  the  State.8  So  where  at  the  time  a  charter  is 
granted  to  a  railroad  corporation  a  general  law  of  the  State  was 
in  existence  which  provided  that  the  charter  of  every  corpora- 
tion subsequently  granted,  and  any  renewal,  amendment  or 
modification  thereof,  should  be  subject  to  amendment,  altera-  , 
tion  or  repeal  by  legislative  authority,  unless  the  act  granting 
the  charter  or  the  renewal,  amendment  or  modification,  in 
express  terms  excepted  it  from  the  operation  of  that  law,  and 
thereafter  the  charter  of  the  corporation  was  amended  and  its 
property  exempted  from  taxation,  but  the  amending  act  con- 
tained no  clause  excepting  the  amendment  from  the  provisions 
of  the  general  law,  and,  subsequently,  the  state  constitution 
was  adopted  requiring  the  property  of  corporations  then  exist- 
ing or  thereafter  chartered  to  be  taxed  except  in  certain  cases, 
not  affecting  this  case,  and  the  legislature  in  pursuance  of  such' 
requirement  then  provided  for  the  taxation  of  property  of  rail- 
road companies  and  under  it  the  property  of  such  corporation, 
it  was  held  that  the  taxation  was  legal  and  constitutional ;  that 
the  power  reserved  to  the  State  by  the  general  law,  in  force 
when  the  charter  was  granted,  authorized  any  change  in  the  con- 
tract' created  by  the  charter  between  the  corporators  and  the 
State,  as  it  originally  existed,  or  as  subsequently  modified,  or 

8  Tomlinson    v.    Jessup,    15    Wall.  Co.,  192  U.  S.  201,  211,  30  L.  ed.  406, 

(82  U.  S.)  454,  21   L.  ed.  204.     Cited  26  Sup.  Ct.  — ;  Wisconsin  &  M.  R. 

on  first  point  in  Louisville  Water  Co.  Co.  v.  Powers,  191  U.   S.  379,  386, 

v.  Clark,  143  U.  S.  1,  12,  36  L.  ed.  55,  387,  48  L.  ed.  229,  24  Sup.  Ct.  107. 

12  Sup.  Ct.  — ;  Spring  Valley  Water  Distinguished    in    Citizens'    Savings 

Works  v.  Schottler,  110  U.   S.  347,  Bank  v.  Owensboro,  173  U.   S.  636, 

370,  4  Sup.  Ct.  48,  28  L.  ed.   173  658,  43  L.  ed.  840,  19  Sup.  Ct.  530, 

(in  dissenting  opinion);  Sinking  Fund  571   (in  dissenting  opinion),  cited  in 

Cases  (Union  Pacific  Rd.  Co.  v.  Uni-  same  case  at  p.  645;  Pearsall  v.  Great 

ted   States  and  Central   Pacific  Rd.  Northern  Ry.,  161  U.  S.  646,  663,  16' 

Co.  v.  Gallatin),  99  U.  S.  700,  758,  25  Sup.  Ct.  705,  40  L.  ed.  838;  Louis- 

L.  ed.  496   (in  dissenting    opinion);  ville  Water  Co.  v.  Clark,  143  U.  S. 

Railroad  Co.  v.  Maine,  96  U.  S.  499,  1,  12,  12  Sup.  Ct.  — ,  36  L.  ed.  55; 

511,  24  L.  ed.  836.     Cited  on  second  Sinking  Fund  Cases   (Union  Pacific 

point   in    Stanislaus  County  v.  San  Rd.  Co.  v.  United  States  and  Cen- 

Joaquin  &  Kings  River  Canal  &  Irrig.  tral  Pacific  Rd.  Co.  v.  Gallatin),  99 

814 


TAXATION    OF   FRANCHISES  §    458 

its  entire  revocation.9  Again,  the  mere  grant  for  a  designated 
time  of  an  immunity  from  taxation  does  not  take  it  out  of  the 
rule  subjecting  such  grant  to  the  general  law  retaining  the 
power  to  amend  or  repeal,  unless  the  grant  contain  an  express 
provision  to  that  effect.  And  the  act  of  the  legislature  of  Ken- 
tucky of  1856, 10  and  the  act  of  1884,11  incorporating  the  Citizens' 
Savings  Bank  of  Owensboro,  and  the  act  of  1880,12  commonly 
known  as  the  Hewitt  Act,  did  not  create  an  irrevocable  contract 
on  the  part  of  the  State  protecting  the  bank  from  other  taxa- 
tion, therefore,  the  taxing  law  of  Kentucky  of  1892  13  did  not 
violate  the  contract  clause  of  the  Federal  Constitution.14  In 
another  Kentucky  case  it  is  held  that  the  immunity  from  taxa- 
tion conferred  upon  the  Louisville  Water  Company  by  the 
legislature  of  that  State  by  the  statute  of  1882  15  was  with- 
drawn by  the  general  revenue  act  of  1886; 16  and  the  immunity 
from  taxation  granted  to  the  company  by  the  said  act  of  1882 
was  accompanied  by  the  condition  expressed  in  the  act  of 
1856,17  and  made  part  of  every  subsequent  statute,  when  not 
otherwise  expressly  declared,  that  by  amendment  or  repeal  of 
the  former  act  such  immunity  could  be  withdrawn.  It  was  also 
held  that  the  withdrawal  of  the  exemption  from  taxation  con- 
ferred upon  the  company  by  the  act  of  1882,  put  an  end  to  the 
obligation,  imposed  upon  the  company  by  that  act,  to  furnish 
water  free  of  charge  to  the  city  for  the  extinguishment  of  fires, 
cleaning  of  streets,  etc.18    If  a  charter  is  granted  exempting  the 

U.  S.  700,  720,  25  L.  ed.  496.    Quali-  15  Act  April  22,  1882,  1  Sess.  Acts, 

fied  in  Hoge  v.  Railroad  Co.,  99  U.  S.  1886,  Gen.  Stat.  1888,  c.  92. 

348,  353,  25  L.  ed.  303.  "Act  May   17,   1886,   Gen.    Stat. 

•Tomlinson    v.    Jessup,    15    Wall.  1888,  c.  92. 

(82  U.  S.)  454,  21  L.  ed.  204.     See  17  Act  February  14,  1856,  2  Rev. 

Covington  v.   Kentucky,  173  U.   S.  Stat.  121. 

231,  43  L.  ed.  679,  19  Sup.  Ct.  383.  18  Louisville  Water  Co.   v.   Clark, 

10  Act  February  14,  1856.  143  U.  S.  1,  36  L.  ed.  55,  12  Sup.  Ct. 

11  Act  May  12,  1884,  c.  1412.  — .     See  also  Louisville  Water  Co.  v. 

12  Act  May  17,  1886.  Kentucky,  170  U.  S.  127,  42  1,  ed. 

13  Act  November  11,  1892,  c.  108.  975,  18  Sup.  Ct.  — .     This  case  was 
u  Citizens' Savings  Bank  v.  Owens-  decided   upon   the   authority   of  the 

boro,  173  U.  S.  636,  19  Sup.  Ct.  530,   last  above-cited  case,  which  it  also 
43  L.  ed.  840.  affirmed. 

815 


§  459 


TAXATION    OF    FRANCHISES 


property  of  a  corporation  from  taxation,  providing  that  an 
existing  statute  reserving  the  right  to  alter,  amend  or  repeal 
corporate  charters  shall  not  apply  to  it,  and  the  State  thereafter 
passes  a  law  taxing  the  property  of  the  corporation,  such  statute 
violates  the  obligation  of  a  contract  and  is  unconstitutional.19 

§  459.  Obligation  of  Contracts— What  Is  a  Contract- 
Exemption  from  Taxation. — It  is  a  general  rule  that  a  valid 
grant  to  a  corporation,  by  a  statute  of  a  State,  of  the  right  of 
exemption  from  taxation,  given  without  reservation  of  the 
right  to  amend,  alter  or  repeal,  is  a  contract  between  the  State 
and  the  corporation,  protected  by  the  Constitution  of  the 
United  States  against  state  legislative  impairment.20  So  a 
charter  provision  exempting  a  corporation's  property  not 
actually  and  in  fact  within  the  State  and  the  stock  held  or 
owned  by  any  of  its  stockholders,  is  violated  by  the  imposition 


19  Home  of  The  Friendless  v. 
Rouse,  8  Wall.  (75  U.  S.)  430,  19  L. 
ed.  495. 

20  Wilmington  &  W.  Rd.  Co.  v.  Als- 
brook,  146  U.  S.  279,  13  Sup.  Ct.  92, 

36  L.  ed.  972  (Laws  Mich.,  1855, 
p.  305,  §  9).  Holding  also  that  this 
rule  is  not  qualified  by  St.  Paul,  Min- 
neapolis &  M.  R.  Co.  v.  Todd  County, 
142  U.  S.  282,  35  L.  ed.  1014,  12  Sup. 
Ct.  — ,  nor  by  Henderson  Bridge  Co. 
v.  Henderson,  141  U.  S.  679,  35  L.  ed. 
900, 12  Sup.  Ct.  — ;  Wilmington  Rail- 
road v.  Reid,  13  Wall.  (80  U.  S.)  264, 
20  L.  ed.  568;  Barnes  v.  Kornegay 
(C.  C),  62  Fed.  671;  Yazoo  &  M.  V. 
R.  Co.  v.  Board  of  Levee  Commrs., 

37  Fed.  24;  Commonwealth  v.  Phila- 
delphia &  E.  R.  Co.,  164  Pa.  252,  35 
W.  N.  C.  217,  30  Atl.  145;  State, 
Memphis,  v.  Butler,  86  Tenn.  614,  8 
S.  W.  586.  See  Powers  v.  Detroit, 
Grand  Haven  &  M.  Ry.  Co.,  201  U.  S. 
543,  26  Sup.  Ct.  556,  50  L.  ed.  860, 
aff' g  Detroit,  Grand  Huron  &  M.  Ry. 
Co.  v.  Powers  (C.  C),  138  Fed.  264; 
New  Jersey  v.  Yard,  95  U.  S.  104,  25 

816 


L.  ed.  352;  Columbia  Water  Power 
Co.  v.  Campbell,  75  S.  C.  34,  54  S.  E. 
833. 

Such  a  contract  once  made  cannot 
be  rescinded  by  a  subsequent  legis- 
lative act.  Jefferson  Bank  v.  Skelly, 
1  Black  (66  U.  S.),  436, 17  L.  ed.  173. 

Statute  repealing  all  former  laws 
exempting  from  taxation  held  void. 
See  Duluth  &  I.  R.  Co.  v.  St.  Louis 
County,  179  U.  S.  302,  45  L.  ed. 
201,  21  Sup.  Ct.  124,  rev'g  St.  Louis 
County  v.  Duluth  &  I.  R.  Co.,  77 
Minn.  433,  80  N.  W.  626;  Stearns  v. 
Minnesota,  179  U.  S.  223,  21  Sup. 
Ct.  73,  45  L.  ed.  162,  rev'g  State  v. 
Stearns,  72  Minn.  200,  75  N.  W.  210. 

An  exemption  from  taxation  in  3 
charter  of  a  company  constitutes  a 
contract,  as  is  illustrated  by  a  case 
where  there  are  present  a  subject- 
matter,  parties  and  consideration  and 
on  the  one  side  a  complete  perfor- 
mance, and  on  the  other,  acceptance. 
Hancock,  Comptroller,  v.  Singer  Mfg. 
Co.,  62  N.  J.  L.  289,  328,  42  L.  R.  A. 
852,  41  Atl.  846,  per  Van  Syckel,  J. 


TAXATION    OF   FRANCHISES  §  460 

upon  such  corporation  of  a  franchise  tax  upon  its  capital  less 
the  value  of  its  real  and  personal  property  within  the  State.21 
A  provision  in  the  charter  of  a  bank  that  "  Said  institution  shall 
have  a  lien  on  the  stock  for  debts  due  it  by  the  stockholders 
before  and  in  preference  to  other  creditors,  except  the  State,  for 
taxes,  and  shall  pay  to  the  State  an  annual  tax  of  one-half  of 
one  per  cent  on  each  share  of  capital  stock,  which  shall  be  in 
lieu  of  all  other  taxes,"  limits  the  amount  of  tax  on  each  share 
of  stock  in  the  hands  of  the  shareholders,  and  any  subsequent 
revenue  law  of  the  State  which  imposes  an  additional  tax  on 
such  shares  in  the  hands  of  shareholders,  impairs  the  obligation 
of  the  contract,  and  is  void;  such  exemption  applies  to  new 
stock  in  the  bank,  created  and  issued  after  the  adoption  of  a 
new  constitution.  But  when  not  otherwise  exempted  the  capi- 
tal stock  of  a  corporation  and  its  shares  in  the  hands  of  share- 
holders may  both  be  taxed.  And  the  surplus  accumulated  is 
not  exempted  from  taxation  by  such  provision  of  exemption  in 
the  charter.22  Although  a  statutory  exemption  from  taxation 
may  be  repealable,  still  the  exemption  remains  in  force  until 
the  repealing  goes  in  effect.23 

§  460.  Obligation  of  Contracts— What  Is  not  a  Contract 
— Exemption  from  Taxation. — An  act  of  the  legislature  ex- 
empting property  of  the  railroad  from  taxation  is  not  a  "con- 
tract" to  exempt  it  unless  there  be  a  consideration  for  the  act. 
An  agreement  where  there  is  no  consideration  is  a  nude  pact;  a 
promise  of  a  gratuity  spontaneously  made,  which  may  be  kept, 
changed,  or  recalled  at  pleasure;  and  this  rule  of  law  applies  to 
the  agreements  of  States  made  without  consideration  as  well 
as  to  those  of  persons.24    So  where  none  of  the  expressions  in  a 

21  State,  Singer  Mfg.  Co.,  v.  Hep-  Commissioner  of  Railroads,  118  Mich, 
penheimcr,  58  N.  J.  L.  633,  34  Atl.  349,5  Det.  L.  N.  507,  76  N.  \V.  633; 
1061 ,  32  L.  R.  A.  643.  Mich.  Pub.  Acts  1897,  Act  No.  228; 

22  Rank  of  Commerce  v.  Tennessee,  Laws  1891,  Act,  No.  174;  Laws  1893, 
161  l'.  S.  134,  40  L.  ed.  645,  16  Sup.    Act  No.  129. 

Ct.  456,  aff'g,  on  the  first  point,  "  Tucker  v.  Ferguson,  22  Wall. 
Iarrington  v.  Tennessee,  95  U.  S.  (89  I'.  8.)  .r,L»7,  22  L.  ed.  805,  rcaf- 
679,  24   L.  ed.  558.  finned  in  West  Wisconsin  Ry.  Co.  v. 

"Manistee    &    N.   E.   R.   Co.    v.   Trempealeau  County,  93  U.  S.  595, 23 
52  817 


§   460  TAXATION   OF   FRANCHISES 

contract  between  a  street  railway  company  and  a  municipality 
in  regard  to  the  extension  of  the  company's  tracks  for  the 
better  advantage  of,  and  furnishing  more  facilities  to,  the  pub- 
lic, import  any  exemption  from  taxation,  the  subsequent  im- 
position of  a  tax,  otherwise  valid,  is  not  invalid  under  the  im- 
pairment of  obligation  clause  of  the  Constitution.25  In  grants 
from  the  public  nothing  passes  by  implication,  and,  in  the 
absence  of  direct  stipulations  relinquishing  the  right  of  taxa- 
tion, a  provision  in  grants  of  privileges  or  franchises,  that  the 
grantee  shall  pay  something  therefor,  is  not  to  be  construed 
as  an  equivalent  or  substitute  for  taxes  amounting  to  a  con- 
tract of  exemption  from  future  taxation  within  the  impair- 
ment clause  of  the  Federal  Constitution.26  So  a  provision  in  a 
general  tax  law  that  railroads  thereafter  building  and  operating 
a  road  north  of  a  certain  parallel  shall  be  exempted  from  the 
tax  for  ten  years,  unless  the  gross  earnings  shall  exceed  a  cer- 
tain sum,  is  not  addressed  as  a  covenant  to  such  railroads  and 
does  not  constitute  a  contract  with  them,  the  obligations  of 
which  cannot  be  impaired  consistently  with  the  Constitution 
of  the  United  States.27  In  another  case  a  charter  of  a  railroad 
company,  incorporated  by  an  act  of  the  legislature  of  Missis- 
sippi, passed  in  1882,  contained  an  exemption  from  all  taxation 
for  twenty  years.  The  state  constitution  adopted  in  1869 
provided  that  the  property  of  all  corporations  for  pecuniary 
profit  should  be  subject  to  taxation,  the  same  as  that  of  indi- 

L.  ed.  814.     See  also  Manistee  &  N.  13  Wall.  (80  U.  S.)  264,  20  L.  ed.  568 

E.  R.  Co.  v.  Commissioners  of  Rail-  Home  of  The  Friendless  v.  Rouse,  8 

roads,  118  Mich.  349,  5  Det.  L.  N.  Wall.  (75  U.  S.)  438,  19  L.  ed.  498 

507,    76    N.  W.  633.     Citing   Grand  Piqua  Branch  of  the  State  v.  Knoop 

Lodge  F.  &  A.  M.  v.  New  Orleans,  166  16  How.  (57  U.  S.)  369,  14  L.  ed.  977 

U.  S.  143,  41  L.  ed.  951,  17  Sup.  Ct.  25  Savannah,  T.  &  I.  of  H.  Ry.  Co 

523;  Welch  v.  Cook,  97  U.  S.  541,  24  v.  Savannah,  198  IT.  S.  392,  49  L.  ed 

L.  ed.  1112;  West  Wisconsin  Ry.  Co.  1097,  25  Sup.  Ct.  690. 

v.  Trempealeau  County,  93  U.  S.  595,  u  Metropolitan    St.    Ry.    Co.     v. 

23  L.  ed.  814;  Tucker  v.  Ferguson,  22  New    York    State    Board    of    Tax 

Wall.  (89  U.  S.)  527,  22  L.  ed.  805.  Commrs.,  199  U.  S.  1,  50  L.  ed.  65, 

!  distinguishing  University  v.  People,  25  Sup.  Ct.  205. 

99  U.  S.  309,  25  L.  ed.  387;  Farring-  27  Wisconsin  &  Michigan  Ry.  Co. 

ton  v.  Tennessee,  95  U.  S.  679,  24  L.  v.  Powers,  191  U.  S.  379,  24  Sup.  Ct. 

ed.  558;  Wilmington  R.  Co.  v.  Reid,  107,  48  L.  ed.  229. 

818 


TAXATION    OF    FRANCHISES  §    461 

viduals,  and  that  taxation  should  be  equal  and  uniform  through- 
out the  State.  Prior  to  the  incorporation  of  the  railroad  com- 
pany, the  Supreme  Court  of  the  State  had  construed  this 
provision  of  the  constitution  as  authorizing  exemptions  from 
taxation,  but  had  declared  that  such  exemptions  were  repeal- 
able.  It  was  held  that  the  Federal  Supreme  Court  was  bound 
by  such  construction  of  the  constitution,  and,  therefore,  that 
the  railroad  company  could  not  claim  an  irrepealable  exemp- 
tion in  its  charter.  It  was  also  decided  that  the  exemption 
being  repealable,  the  question  whether  it  had  in  fact  been 
repealed  was  a  local  and  not  a  Federal  question.28  An  irrev- 
ocable contract  is  not  created  by  the  acceptance  by  a  national 
bank  of  the  Hewitt  Act  ^  so  as  to  exempt  its  shares  from  taxa- 
tion as  required  by  a  state  statute  which  is  valid  as  to  taxes  for 
subsequent  years.30  Again,  a  corporation  organized  for  the 
purpose  of  doing  an  insurance  business,  under  an  act  of  the 
legislature  of  the  State  of  Tennessee  passed  before  the  adoption 
by  that  State  of  its  constitution  of  1870,  with  a  provision  in  the 
charter  limiting  the  rate  and  extent  of  taxation  by  the  State, 
does  not  continue  to  enjoy  the  exemption  if  its  corporate  ob- 
jects and  business  are  changed  to  those  of  a  bank  by  legislation 
enacted  subsequent  to  the  adoption  of  that  constitution.31  If 
a  statute,  supplemental  to  a  corporation's  charter,  is  enacted 
after  a  state  constitution  is  adopted  which  makes  all  laws 
subject  to  alteration  and  repeal,  it  is  repealable.32 

§  461.  Obligation  of  Contracts— Reservation  of  Power  to 
Alter,  etc. — Exemption  from  Taxation — Res  Adjudicata. — 

Where  it  is  res  judicata  that  the  original  charter  of  a  bank  by 

28  Gulf  &  S.  I.  R.  Co.  v.  Hewes,  183  Ky.  Act  March  21,  1900,  Acts  1900, 

U.  S.  GO,  40  L.  ed.  86,  22  Sup.  Ct.  p.   65,   c.   23.      See   State    Board    oi 

26.  Assessors   v.    Patterson    (N.   J),    1  I 

M  Act  1886,  Acts  1885-1886,  p.  140,  Atl.  610. 
c.  1233.  31  Memphis  City  Bank  v.  Tennes- 

30  First  National  Bank  of  Coving-  sec  Hil    I      S.  180,  40  L.  ed.  664.  Ki 

ton  v.  City  of  Covington,   129  Fed.  Sup.  Ct.  — . 

772,  case  aff'd  in  Covington  v.  First        "  State  v.  Northern  Cent.  Ky.  Co., 

National    Bank    of   Covington,    198  90  Md.  447,  45  Atl.  465;  Const.  1851, 

U.  S.  100,  49  L.  cd.  — ,  25  Sup.  Ct.  — ;  art.  3,  §  47. 

819 


§    461  TAXATION    OF    FRANCHISES 

which  its  capital  is  exempt  from  any  tax  constituted  a  con- 
tract within  the  impairment  clause  of  the  Constitution,  and 
that  such  exemption  is  not  affected  by  subsequent  charters 
and  constitutions,  and  there  is  no  doubt  that  the  State  intended ' 
to  offer  inducements  to  enlist  capital  in  the  early  development 
of  the  State,  and  no  license  tax  was  demanded  for  fifty-eignt 
years  although  that  method  of  taxation  was  in  force  during 
the  whole  period,  the  exemption  from  any  tax  may  be  con- 
strued as  including  a  license  tax  on  occupation  as  well  as  taxes 
on  property.33    Again,  where  it  has  been  litigated  and  deter- 
mined in  a  Federal  court  that  the  state  law  under  which  the 
taxes  were  levied  is  unconstitutional  within  the  impairment 
clause  of  the  Constitution  because  of  a  contract  which  ex- 
empted from  all  taxation,  including  particular  years  then  in 
controversy,  the  question  is  res  judicata  as  to  the  right  to  levy 
the  tax  under  such  law  in  any  other  year  although  it  may  have 
been  established  by  the  highest  court  of  that  State  that  an 
adjudication  concerning  taxes  for  one  year  cannot  be  pleaded 
as  estoppel  in  suits  involving  taxes  of  other  years.    And  the 
adjudication  of  a  Federal  court  establishing  a  contract  exempt- 
ing from  taxation,  although  based  upon  the  judgment  of  a 
state  court  given  as  a  reason  therefor,  is  equally  effectual  as 
res  judicata  between  the  parties  as  though  the  Federal  court 
had  reached  its  conclusion  as  upon  an  original  question;  and 
under  the  doctrine  of  res  judicata  such  adjudication  will  estop 
either  party  in  subsequent  litigation  between  themselves  from 
again  litigating  the  question  of  contract  determined  in  the 
former  action,  even  though  the  judgment  of  the  state  court 
upon  which  the  Federal  court  based  its  decision  has  meanwhile 
been  reversed  by  the  highest  court  of  that  State.34    Where  it 
has  been  adjudged  by  the  Supreme  Court  of  New  Jersey  that  a 
franchise  tax  imposed  upon  a  manufacturing  company  is  illegal 
by  reason  of  the  contract  of  exemption  in  its  charter,  the  ques- 
tion of  its  liability  for  a  like  tax  in  a  subsequent  year  is  res 

33  Citizens'    Bank   v.    Parker,    192     .  :"  Deposit  Bank  v.  Frankfort,  191 
S.  73,  24  Sup.  Ct.  181,  48  L.  ed.    U.  S.  499,  48  L.  ed.  276,  24  Sup.  Ct, 
346.  154. 

820 


TAXATION    OF    FRANCHISES  §    461 

adjudicata;  and  even  though  prior  to  such  decision  a  statute  of 
earlier  date  reserved  to  the  legislature  the  power  to  alter,  sus- 
pend or  repeal  subsequent  charters,  and  although  under  sub- 
sequent state  decisions  this  statute  was  held  to  be  read  into 
every  subsequent  charter,  nevertheless  a  legislature  cannot 
bind  its  successors  and  prohibit  its  granting  an  irrepealable 
contract  if  it  should  so  elect ;  and  unless  an  intention  can  fairly 
be  drawn  from  the  terms  of  a  contract  of  exemption  from  taxa- 
tion to  reserve  to  the  State  a  right  to  repeal  such  contract  at 
will  without  the  consent  of  the  company,  there  can  be  no  de- 
parture from  it.35 

35  Hancock,  Comptroller,  v.  Singer   Mfg.  Co.,  62  N.  J.  L.  289,  328,  329, 

42  L.  R.  A.  852,  41  Atl.  846. 


821 


ALIENATION    AND   FORFEITURE 


CHAPTER  XXV. 


ALIENATION    AND   FORFEITURE. 


^  462.  Power  to  Alienate  Franchises 
— Nature  of  Franchise  as 
Affecting. 

463.  Power  to  Alienate  Franchises 

— General  Rule. 

464.  Same  Subject — Basis  of  Rule. 

465.  Power  to  Alienate  Franchises 

— Legislative  Authoriza- 
tion. 

466.  Power  to  Alienate  Franchises 

— Legislative  Authoriza- 
tion Continued. 

467.  Power  to  Alienate  Franchises 

— Implied  Legislative  Au- 
thorization—  Presumptions 
— Construction  of  Statutes. 

468.  Power  to  Alienate  Franchises 

— Railroad  Companies. 

469.  Power  to  Alienate  Franchises 

— Banks — Street  Railway 
C  o  m  p  a  n  i  e  s — Telegraph 
Lines. 

470.  Power  to  Alienate  Franchises 

— Water  and  Irrigation 
Companies. 

471.  Power  to  Mortgage. 

472.  Power  to  Make  and  Take  a 

Lease — Railroad  Compan- 
ies— Natural  Gas,  Gas  and 
Electric  Companies. 

473.  Illegal  or  Ultra  Vires  Lease 

— Ratification — Estoppel — 
Equity — Validating  Stat- 
utes. 

474.  Power  to  Assign  Franchises. 

475.  Assignment  of  Franchises  of 

822 


Insolvent  or  Bankrupt  Cor- 
poration— What    Passes. 

476.  Power  to  Purchase. 

477.  Judicial  Sales — Decree — Gen- 

erally. 

478.  Judicial    Sales— What    Does 

and  Does  not  Pass — Pur- 
chasers' Rights  and  Obliga- 
tions. 

479.  Exemption  or  Immunity  from 

Taxation  or  Governmental 
Regulation — Not  Transfer- 
able Unless  Expressly  Au- 
thorized by  State. 

480.  Exemption  or  Immunity  from 

Taxation,  etc.,  Continued 
— Judicial  Sale — Sale  Un- 
der Mortgage  or  Statutory 
Lien. 

481.  Exemption  or  Immunity  from 

Taxation,  etc.,  Continued 
— Whether  Passes  on  Con- 
solidation of  Corporations. 

482.  Same     Subject— When     Ex- 

emption Does  and  Does 
not  Pass — Illustrative  De- 
cisions. 

483.  Exemption  or  Immunity  from 

Taxation,  etc., — Rule  as  to 
Effect  of  Reservation  of 
Power  to  Alter,  Amend  or 
Repeal. 

484.  Same      Subject — Illustrative 

Decisions. 

485.  Forfeiture  of  Franchise — Leg- 

islative Power  as  to. 


ALIENATION    AND    FORFEITURE  §§    462,463 

§  486.  Forfeiture  of  Franchise— Ju-  Abuse,  Misuser  or  Nonuser 

dicial    Determination    of —  of  Corporate  Powers. 

Quo   Warranto— State  Of-  §  489.  Nature   and  Extent  of  Mis- 

ficials — Ipso     Facto     For-  user  or  Nonuser  Justifying 

feiture.  Forfeiture. 

487.  Courts  Reluctant  to  Adjudge  490.  When  Franchise  Will  Be  For- 

Forfeitures  and  Will   Pro-  feiture — Instances. 

ceed  with  Caution.  491.  When  Franchise  Will  not  Be 

488.  Forfeiture       of     Franchise —  Forfeited — Instances. 

§  462.  Power  to  Alienate  Franchises— Nature  of  Fran- 
chise as  Affecting. — We  have  elsewhere  considered  such  dis- 
tinction as  exists  between  what  are  designated  as  primary  and 
secondary  franchises,  and  have  also  seen  that  a  marked  distinc- 
tion exists  between  franchises  which  are  essential  to  the  crea- 
tion and  continued  existence  of  a  corporation,  to  its  right  to 
exist  as  an  artificial  being  and  which  are  inseparable  from  it, 
and  other  franchises  and  privileges  subsidiary  in  their  nature 
which  it  possesses  and  may  exercise  under  and  by  virtue  of  the 
franchise  to  be  and  to  the  enjoyment  of  which,  corporate  exist- 
ence is  not  a  prerequisite.  We  have  further  specially  con- 
sidered: "essentially  corporate  franchises;"  the  non-inclusion 
in  that  term  of  "corporate  powers  or  privileges;"  the  sale  and 
assignability  of  the  latter  and  their  liability  to  loss  or  forfeiture; 
the  distinction  between  franchises  and  powers  and  of  franchises 
to  be  and  property  or  franchises  which  a  corporation  may  ac- 
quire; the  distinction  between  the  general  creative  franchise 
and  a  special  franchise;  also  other  distinctions  of  importance, 
with  those  above  mentioned;  these  distinctions  are  pertinent 
to  the  question  of  the  power  to  alienate  franchises.1 

§  463.  Power  to  Alienate  Franchises— General  Rule. — 
It  is  a  general  rule,  in  the  case  of  public  service  corporations, 
that  the  franchise  to  be  a  corporation  is  not  a  subject  of  sale 
and  transfer  unless  made  so  by  a  statute  which  provides  a 
mode  of  exercising  it.2    So  a  corporation,  in  the  absence  of 

1  See  §§  8,  30  et  seq.,  herein.  5  Sup.  Ct.  299,  28  L.  ed.  837;  Branch 

2  Memphis  &  L.  R.  Iiy.  Co.  v.  Rail-    v.  Jesup,  106  U.   S.  468,  27  L.  cd. 
road  Commissioners,  112  I*.  S.  609,    279,  1  Sup.  Ct.  495.     Other  authori- 

823 


§    463  ALIENATION    AND    FORFEITURE 

statutory  authority,  has  no  right  to  sell  or  transfer  its  fran- 
chise, or  any  property  essential  to  its  exercise,  which  it  has 
acquired  under  the  law  of  eminent  domain.3  Nor  can  a  corpo- 
ration sell  or  transfer  franchises  from  which  it  has  been  forever 
ousted  by  quo  warranto  proceedings.4  A  strictly  private  cor- 
poration, however,  may  alienate  its  property  or  part  with  it  in 
its  entirety  with  the  consent  of  its  stockholders,  where  it  is 
under  no  obligation  to  render  public  services  or  to  perform 
public  duties.5  And  it  is  held  that  a  corporation's  power  to 
alienate  its  property  exists  in  the  absence  of  a  statutory  re- 
striction ; 6  that  the  power  to  convey  is  limited  to  the  accom- 
plishment of  the  objects  for  which  the  corporation  was  created; 7 
that  all  of  a  corporation's  property  may  be  sold  to  another 
corporation;8  that  franchise  interests  which  are  independent 
are  transferable,9  as  is  also  an  easement  or  right  of  way  upon 
a  public  street ; 10  and  a  ferry  franchise  is  held  to  be  transfera- 
ble the  same  as  other  property.11  Nor  does  the  rule  apply  to  a 
sale  or  transfer  to  the  public,  as  where  a  municipality,  under  a 
contract  Condition  upon  acceptance  of  a  franchise  by  a  gas 
company,  has  the  right  reserved  to  purchase  its  property.12 

ties  supporting  this  rule  appear  un-  7  Kit  Carter  Cattle  Co.  v.  McGil- 

der  subsequent  sections  in  this  chap-  lin,  10  Ohio  S.  &  C.  P.  Dec.  146,  7 

ter.  Ohio  N.  P.  575. 

Insurance    company    doing    losing  8  Warfield     v.     Marshall     County 

business,  but  still   solvent;   right  of  Canning  Co.,  72  Iowa,  666,  34  N.  W. 

to   alienate.      See   Raymond   v.    Se-  467.     See  Marvin  v.  Anderson,  111 

curity  Trust  &  Life  Ins.  Co.,  89  N.  Y.  Wis.  387,  87  N.  W.  226. ' 

Supp.  753, 44  Misc.  31,  rev'd  111  App.  9  Long    Acre    Electric    Light    & 

Div.  191,  97  N.  Y.  Supp.  557.  Power   Co.,  In  re,  101  N.  Y.  Supp. 

3  Fietsam  v.  Hay,  122  111.  293,  13  460,  51  Misc.  407,  aff'd  102  N.  Y. 
N.E.  501,  3  Am.  St.  Rep.  492.  Citing  Supp.  242,  117  App.  Div.  80,  aff'd 
Freeman  on  Executions,  §§  179,  180;  188  N.  Y.  361,  80  N.  E.  1101. 
Pierce  on  Railroads,  §§  196-201;  Jones  10  Knoxville  v.  Africa,  77  Fed.  501, 
on  Mortgages,  §161;  Rorer  on  Ju-  47  U.  S.  App.  74,  246,  23  C.  C.  A.  252. 
dicial  Sales  (2d  ed.),  222.  u  Evans    v.    Kroutinger    (Idaho), 

4  Wilmington  Water  Power  Co.  v.  72  Pac.  882. 

Evans,  166  111.  548,  46  N.  E.  1083.  I2  Indianapolis,    City   of,    v.    Con- 

5  Morrisette  v.  Howard  (Kan.),  63  sumers-'  Gas  Trust  Co.,  144  Fed.  640. 
Pac.  756.  See  s.  c,  206  U.  S.  592.      Examine 

6  Fitch  v.  Lewiston  Steam  Mill  Co.,  Joyce    on    Electric    Law    (2d    ed.), 
80  Me.  34, 12  Atl.  732.  §  244. 

824 


ALIENATION    AND    FORFEITURE 


§    464 


§  464.  Same  Subject— Basis  of  Rule.— The  franchises 
and  powers  of  a  public  service  corporation  are  in  a  large  meas- 
ure designed  to  be  exercised  for  the  public  good,  and  this  exer- 
cise of  them  is  the  consideration  for  granting  them;  and  any 
transfer  or  contract  by  which  the  company  renders  itself  in- 
capable of  performing  its  duties  to  the  public  or  attempts  to 
absolve  itself  from  its  obligations  without  the  consent  of  the 
State  is  forbidden  by  public  policy,  violates  its  charter,  and  is, 
therefore,  void.13    So  a  railroad  company  cannot,  by  a  lease  of 

13  United  States:  Central  Transp.  ance  of  public  duties  which  it  has 
Co.  v.  Pullman's  Palace  Car  Co.,  undertaken,  and  thereby  make  pub- 
139  U.  S.  24,  11  Sup.  Ct.  478,  35  L.  lie  accommodation  or  convenience 
ed.  55,  45  Am.  &  Eng.  R.  Cas.  607,  subservient  to  its  private  interests. 
9  Ry.  &  Corp.  L.  J.  342,  43  Alb.  L.  J.  Gibbs  v.  Consolidated  Gas  Co.  of  Bal- 
328;  Thomas  v.  Railroad  Co.,  101  timore,  130  U.  S.  396,  397,  32  L.  ed. 
U.  S.  71,  83,  84,  25  L.  ed.  950;  New  788,  9  Sup.  Ct.  389,  6  R.  R.  &  Corp. 
York,  etc.,  Rd.  Co.  v.  Winans,  17  L.  J.  22. 
How.  (58  U.  S.)  30,  15  L.  ed.  27.  Courts  will  not  allow  corporations 

Illinois:  Balsley  v.  St.  Louis,  to  escape  from  their  proper  respon- 
Alton  &  Terre  Haute  Rd.  Co.,  119  111.  sibility,  by  means  of  any  disguise. 
68,  72,  73,  8  N.  E.  859.  New  York,  etc.,  Rd.  Co.  v.  Winans, 

Kentucky:    Anderson    v.  Cincin-    17  How.  (58  U.  S.)  30,  15  L.  ed.  27. 
nati  S.  R.  Co.,  86  Ky.  44,  5  S.  W.  49.        "The  State  is  presumed  to  grant 

New  Jersey:  State,  Bridgeton,  v.  corporate  franchises  in  the  public 
Bridgeton  &  M.  Traction  Co.,  62  N.  J.  interest,  and  to  intend  that  they  shall 
L.  592,  43  Atl.  715,  45  L.  R.  A.  837.    be  exercised  through  the  proper  offi- 

Texas:  International  &  G.  N.  R.  cers  and  agencies  of  the  corporation, 
Co.  v.  Eckford,  71  Tex.  274,  8  S.  W.  and  does  not  contemplate  that  cor- 
679;  International  &  G.  N.  R.  Co.  v.  porate  powers  will  be  delegated  to 
Kuehn,  70  Tex.  582,  8  S.  W.  484;  others.  Any  conduct  which  destroys 
East  Line  &  R.  R.  Co.  v.  Rushing,  their  functions,  or  maims  or  cripples 
69  Tex.  306,  6  S.  W.  834.  their    separate    activity,    by    taking 

Virginia:  Acker  v.  Alexandria  away  the  right  to  freely  and  indo- 
&  F.  R.  Co.,  84  Va.  648,  5  S.  E.  688;  pendently  exercise  the  functions  of 
Naglee  v.  Alexandria  &  F.  R.  Co.,  83  their  franchise,  is  contrary  to  a  sound 
Va.  707,  3  S.  E.  369.  public  policy.    Central  Transp.  Co.  v. 

Examine  State,  Grinsf elder,  v.  Pullman's  Palace  Car  Co.,  139  U.  S. 
Spokane  St.  R.  Co.,  19  Wash.  518,  24,  11  Sup.  Ct.  478,  35  L.  ed.  55; 
53  Pac.  719,  41  L.  R.  A.  515,  11  Am.  Thomas  v.  Railroad  Co.,  101  U.  S. 
<fc  Eng.  R.  ('as.  (N.  S.)  62;  Connor  v.  71,  25  L.  ed.  950;  People  v.  North 
Cit;  »f  Marshfield  (Wis.,  1906),  107  River  Sugar  Refining  Co.,  121  N.  Y. 
N.  W.  639,  under  Rev.  Stat.  1898,  582-625,  24  N.  E.  834;  Mallory  v 
§959-51.  Oil    Works,   86  Tenn.   ,r,<).S,   s   S.    W. 

A   corporation   cannot  disable   it-    396."     McCutcheon  v.  Merz  Cap 
self  by  contract  from   the   perform-   Co.,  71  Fed.  787,  793, per  Lurton,  C.  J. 

825 


§   464  ALIENATION    AND    FORFEITURE 

its  property,  absolve  itself  from  liability  for  an  injury  to  a 
stranger,  caused  by  the  negligence  of  the  lessee  in  the  operation 
of  its  road,  unless  such  exemption  is  provided  for  in  the  lease 
and  is  also  expressly  sanctioned  by  legislative  authority. 
Where,  however,  one  railroad  company  has,  with  express  legis- 
lative authority,  transferred  the  full  legal  ownership  of  its 
franchise,  as  well  as  its  property,  to  another  railroad  corpora- 
tion, the  former  is  then  exempt  from  liability  for  the  negligence 
of  the  latter  in  the  management  and  operation  of  the  road.14 
Again,  the  original  obligation  of  a  railroad  company  to  the 
public  cannot  be  discharged  by  a  transfer  of  its  franchises  to 
another  company  except  by  legislative  enactment  consenting 
to  and  authorizing  such  transfer,  with  an  exemption  granted  to 
such  company  relieving  it  from  liability.  Mere  legislative  con- 
sent to  the  transfer  is  not  sufficient;  there  must  be  a  release 
from  the  obligations  of  the  company  to  the  public.15    A  cor- 

"The  duties  which  railroad  corpo-  nor  relieve  itself  from  liability  for 
rations  owe  to  the  public  and  which  the  wrongful  acts  or  omissions  of 
are  the  consideration  upon  which  duty  of  persons  operating  its  road, 
their  privileges  were  conferred,  can-  by  transferring  its  corporate  powers, 
not  be  avoided  by  neglect  or  refusal,  or  permitting  others  to  operate  its 
or  by  agreement  with  other  persons  road  as  owners  of  its  capital  stock, 
or  corporations.  Therefore,  any  con-  To  allow  it  to  do  so  would  be  con- 
tract to  prevent  the  faithful  dis-  trary  to  the  public  policy  of  the  State 
charge  of  any  such  duties  will  be  as  expressed  in  its  constitution  and 
against  public  policy  and  void."  laws  with  reference  to  railroad  com- 
Peoria   &   Rock   Island   Ry.    Co.    v.    panies. 

Coal  Valley  Mining  Co.,  68  111.  489,        When  purchaser  or  transferee  is  and 
quoted  in  Chicago  Gas  Light  &  Coke    is  not  liable  for  torts  and  debts,  see  the 
Co.  v.  People's  Gas  Light  &  Coke  Co.,    following  cases: 
121  111.  530,  13  N.  E.  169,  172,  per       United  States:     Guardian  Trust 
Magruder,  J.  &  Deposit  Co.  v.  Fisher,  200  U.   S. 

"Driscoll  v.  Norwich  &  Worcester  57,  50  L.  ed.  367,  26  Sup.  Ct.  180 
Rd.  Co.,  65  Conn.  230,  32  Atl.  354.        (statute  to  be  liberally  construed  to 

15  Chollette  v.  Omaha  &  Republi-  give  effect  to  intent  of  legislature 
can  Valley  Rd.  Co.,  26  Neb.  159,  41  and  make  corporate  property  security 
N.  W.  1106,  4  L.  R.  A.  135.  It  is  also  against  torts,  and  imposes  upon  plant 
held  in  this  case  that  a  railroad  com-  of  corporation  responsibility  for  torts 
pany  organized  and  incorporated  un-  which  cannot  be  avoided  by  con- 
der  the  laws  of  that  State  cannot  veyance  to  new  corporation), 
absolve  itself  from  the  performance  Illinois:  Chicago,  M.  &  St.  P.  Ry. 
of  duties   imposed   upon   it  by  law,    Co.  v.  City  of   Chicago,  83  111.  App. 

826 


ALIENATION    AND   FORFEITURE  §   464 

poration  in  debt  cannot  transfer  its  entire  property  by  lease, 
so  as  to  prevent  the  application  of  it,  at  its  full  value,  to  the 

233  (purchaser  of  franchises  is  not  v.  Bridgeton  &  M.  Traction  Co.,  62 
freed  from  public  duty  imposed  by  N.  J.  L.  592,  43  Atl.  715,  45  L.  R.  A. 
grant).  837  (transferee  obligated  to  main- 
Indiana:  Graham  v.  Chicago,  I.  tain  and  operate  street  railroad). 
&  L.  Ry.  Co.  (Ind.  App.,  1906),  77  Texas:  Dallas  Consolidated  Trac- 
N.  E.  57,  1055  (railroad  company  tion  Co.  v.  Maddox  (Tex.  Civ.  App.), 
cannot  by  transfer  relieve  grantee  31  S.  W.  702  (purchaser  not  bound  by 
from  statutory  obligations  as  to  pub-  contract  obligations  of  selling  com- 
lic  security);  United  States  Capsule  pany). 

Co.  v.  Isaacs,  23  Ind.  App.  533,  55  Purchasers  obligated  by  burdens  and 
N.  E.  832  (transferee  liable  for  debts  conditions.  Purchasers  of  a  rail- 
of  consolidating  companies,  but  lim-  road,  not  having  any  right  to  de- 
ited  by  amount  of  property  trans-  mand  to  be  incorporated  under  the 
ferred).  laws  of  a  State,  but  voluntarily  ac- 
Michigan  :  Chase  v.  Michigan  Tel.  cepting  the  privileges  and  benefits 
Co.,  121  Mich.  631,  80  N.  W.  717  of  an  incorporation  law,  are  bound 
(not  liable  in  absence  of  statute  or  by  the  provisions  of  existing  laws 
agreement  for  seller's  obligations,  and  regulating  rates  of  fare  and  are,  as 
in  case  of  tort  only  liable  after  judg-  well  as  the  corporation  formed,  es- 
ment  against  seller);  Wallace  v.  Ann  topped  from  repudiating  the  bur- 
Arbor  &  Y.  Electric  Ry.  Co.,  121  dens  attached  by  the  statute  to  the 
Mich.  588,  80  N.  W.  572  (transferee  privilege  of  becoming  an  incorpora- 
prima  facie  bound  to  honor  passes  tion.  Grand  Rapids  &  Ind.  Ry.  Co. 
issued  by  transferring  company);  v.  Osborn,  193  U.  S.  17,  48  L.  ed.  598, 
Grenell  v.  Detroit  Gas  Co.,  112  Mich.  24  Sup.  Ct.  310.  See  Metropolitan 
70,  70  N.  W.  413,  3  Det.  L.  N.  858,  6  Trust  Co.  v.  Columbus,  S.  &  H.  R. 
Am.  &  Eng.  R.  Cas.  (N.  S.)  420  (pur-  Co.  (C.  C),  95  Fed.  18.  So  where 
chaser  assumes  creditors'  claims  in  conditions  are  attached  to  the  right 
respect  to  property  transferred).  of  a  corporation  and  its  successors 
Minnesota:  Heron  v.  St.  Paul,  to  operate  a  railroad  on  a  street, 
M.  &  M.  R.  Co.,  68  Minn.  542,  71  such  conditions  bind  the  transferee. 
N.  W.  706  (old  company  liable  for  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  City 
negligence  of  transferee  of  right  to  of  Chicago,  183  111.  341,  55  N.  E. 
run  trains  over  former  road  when  it  648,  aff'g  83  111.  App.  233. 
retains  control).  A  business  or  manufacturing  corpo- 
Missouri  :  Lawson  v.  Illinois  ration  does  not  become  the  owner  of 
Southern  Ry.  Co.,  116  Mo.  App.  690,  a  railroad  company's  road,  fran- 
94  S.  W.  807  (purchaser  not  liable  chises,  or  oilier  property,  by  owning 
for  destruction  of  crops);  Porter  v  nearly  .ill  t lie  stock  of  the  latter.  A 
Illinois  Southern  Rd.  Co.,  116  Mo.  railroad  company,  whoever  may  be 
App.  526,92  S.  W.  711  (purchaser not  the  owner  of  its  stock,  still  owns  its 
liable  for  torts  of  seller).  See  Hager-  property.  I'liner  V.  Lime  Rock  R. 
maim  v  Southern  Electric  Co.  (Mo.),  Co.,  98  Me.  579,  57  AH.  1001. 
100  S.  W  1081.  Whether  lessor  or  lesser  liable  for 
New    Jersey:     State,    Bridgeton,  torts  and  debts,  see  the  following  cases: 

827 


§    464  ALIENATION    AND    FORFEITURE 

satisfaction  of  the  debts  of  the  company ;  and  when  such  trans- 
fer is  made  under  circumstances  which  warrant  such  remedy, 

United   States:  Chesapeake  &  O.  &    W.    R.    Co.,  65    Conn.    230,    32 

Ry.  Co.  v.  Howard,  178  U.  S.  153,  44  Atl.    354    (lease    ratified    by    State; 

L.  ed.  1015,20  Sup.  Ct.  880  (railroads;  managing  agent  of  lessee  to  be  per- 

lessor  through  agents   and  servants  son  satisfactory  to  lessor;  lessor  not 

managed  and  conducted  train;  no  de-  released     from    liability     for    negli- 

fense  for  negligence   causing  injury  gence  of  lessee), 

that  road  was  leased);  Chicago,  M.  Georgia:   Pickens  v.  Georgia,  Rd. 

6  St.  P.  Ry.  Co.  v.  Third  Nat.  Bank,  Co.,  126  Ga.  517,  55  S.  E.  171  (rail- 
Chicago,  134  U.  S.  276,  10  Sup.  Ct.  road  company;  lessor  liable  for  in- 
550,  33  L.  ed.  900  (a  lessee  of  a  jury  to  passenger  for  breach  of  public 
railroad,  receiving  money  to  be  ex-  duty  where  road  is  operated  by  les- 
pended  on  the  leased  property,  and  see).  See  Nashville,  C.  &  St.  L.  R. 
misappropriating  it  by  spending  it  on  Co.  v.  Edwards,  91  Ga.  24. 
another  property,  cannot,  by  after-  Illinois:  People,  Cantrell,  v.  St. 
wards  spending  an  equal  amount  of  Louis,  A.  &  T.  H.  R.  Co.,  176  111. 
its  own  money  on  the  leased  prop-  512,  52  N.  E.  292,  12  Am.  &  Eng. 
erty,  deprive  a  creditor  of  the  lessor  of  R.  Cas.  (N.  S.)  227,  aff 'g  45  N.  E.  824, 
an  equitable  right  growing  out  of  the  35  L.  R.  A.  656,  6  Am.  &  Eng.  R. 
misappropriation);  Chicago  &  N.  W.  Cas.  (N.  S.)  241  Qessee  of  railroad 
Ry.  Co.  v.  Crane,  113  U.  S.  424,  28  bound  by  requirements  of  lessor's 
L.  ed.  1064,  5  Sup.  Ct.  578  (statute,  charter). 

authorizing  company  to  lease  rail-  Kansas:  Carruthers  v.  Kansas 
road  to  another  corporation  and  re-  City,  Ft.  S.  &  M.  R.  Co.,  59  Kan.  629, 
quiring  lessee  to  be  liable  in  same  54  Pac.  673,  44  L.  R.  A.  737  (lease 
manner  as  though  railroad  belonged  authorized;  lessor  no  control  over  rail- 
to  it,  imposes  liability  as  to  leased  road;  general  lease;  lessor  not  liable 
property  upon  lessee  while  operating  for  results  of  lessee's  negligence), 
it;  but  does  not  discharge  lessor  from  Kentucky:  Schmidt  v.  Louisville 
its  corporate  liabilities);  Hukill  v.  &  N.  R.  Co.,  101  Ky.  441,  19  Ky. 
Maysville  &  B.  S.  R.  Co.  (C.  C),  72  L.  Rep.  666,  38  L.  R.  A.  809 
Fed.  745  (lessor  empowered  to  lease  (lessee  held  not  a  mere  tenant  by 
not  liable  for  all  lessee's  torts;  nor  sufferance,  but  bound  by  terms  of 
liable  for  lessee's  torts  as  to  em-  lease  where  it  assumes  control  of  and 
ployees;  is  liable  for  injuries  to  pub-  operates  road);  Brooker  v.  Maysville 
lie).  &  B.  S.  R.  Co.,  26  Ky.  L.  Rep.  1022, 
California:  Lee  v.  Southern  Pa-  83  S.  W.  117  (railroad  making  ultra 
cific  R.  Co.,  116  Cal.  97,  47  Pac.  932,  vires  lease  to  foreign  corporation  of 

7  Am.  &  Eng.  R.  Cas.  (N.  S.)  656,  38  ferry  franchise  acquired  by  lessor,  is 
L.  R.  A.  71  [constitutional  provision  liable  for  negligent  injury  to  pas- 
against  leasing  so  as  to  release  lessor  senger  on  ferryboat). 

from  liability  (Cal.   Const.,   art.    12,  Michigan:  Ackerman    v.    Cincin- 

§  10),  injured  employee  of  lessee;  no  nati,  S.  &  M.  R.    Co.  (Mich.,  1906), 

action  against  lessor  but  may  enforce  12  Det.  L.  N.  908,  106  N.  W.  558 

judgment  against  property].  [lessor    not   liable   for  acts  of  lessee 

Connecticut:   Driscoll  v.  Norwich  of   railroad;   statute    (Comp.    Laws, 

828 


ALIENATION    AND    FORFEITURE 


§  464 


a  court  of  equity  will  decree  the  payment  of  a  judgment  debt 
of  the  lessor  by  the  lessee.16  In  a  Federal  case  it  appeared  that 
a  corporation,  formed  by  articles  of  association,  called  a  certifi- 
cate or  charter,  under  the  general  laws  of  Pennsylvania  con- 
cerning manufacturing  companies,  with  a  certain  capital  stock, 
for  twenty  years,  for  "the  transportation  of  passengers  in  rail- 
road cars  constructed  and  owned  by  the  said  company,"  under 
certain  patents,  carried  on  the  business  of  manufacturing 
sleeping  cars  under  its  patents,  and  of  hiring  and  letting  the 
cars  to  railroad  companies  by  written  contracts,  receiving  a 
revenue  from  the  sale  of  berths  and  accommodations  to  passen- 
gers. Seven  years  afterwards,  by  special  act  of  the  legislature 
of  Pennsylvania,  the  charter  was  extended  for  ninety-nine 
years,  and  the  corporation  was  empowered  to  double  its  capital 
stock,  and  "to  enter  into  contracts  with  corporations  of  this 
or  any  other  State  for  the  leasing  or  hiring  and  transfer  to 
them,  or  any  of  them,  of  its  railway  cars  and  other  personal 


§  6369)  authorized  lease  and  made 
lessee  liable]. 

Minnesota:  Heron  v.  St.  Paul, 
M.  &  M.  R.  Co.,  68  Minn.  542,  71  N. 
W.  706  (lease  authorized  by  legisla- 
ture; lessee  had  exclusive  control;  les- 
sor not  liable  for  negligence  of  lessee 
or  sublessee). 

Ohio:  Beckett  Paper  Co.  v.  Ham- 
ilton &  R.  H.  Co.,  18  Ohio  C.  C.  200 
(lessees  of  water  power  liable  after 
assignment  of  lease). 

Virginia:  Ft.  Winchester  &  Stras- 
burg  1M.  Co.  v.  Commonwealth,  106 
Va.  264,  55  S.  E.  692  (the  lessee  of  a 
railroad  who  had  contracted  to  per- 
form all  the  public  legal  obligations 
of  the  lessor,  and  who  is  of  financial 
ability  to  do  so,  will  be  compelled 
to  discharge  such  obligations,  al- 
though the  lessor  may  be  of  financial 
ability  to  do  so,  and  although  it  may 

entail  a  1088  Upon  the  lessee,  evidence 

upon  the  latter  subject  is,  therefore, 
inadmissible.     A  lessor  and  a  lesser 


who  have  sought  and  obtained  a 
charter  imposing  obligations  cannot 
repudiate  them  simply  because  they 
are  onerous  and  unprofitable). 

West  Virginia:  Guinn  v.  Ohio 
River  R.  Co.  (W.  Va.),  33  S.  E.  87 
(lessee  of  constructed  railroad  not 
liable  for  damages  to  property  oc- 
casioned by  construction  and  opera- 
tion). 

Canada:  Michigan  C.  R.  Co.  v. 
Wealleans,  24  Can.  S.  C.  309  (foreign 
lessee,  under  authorized  lease;  no 
greater  liability  than  that  of  lessor 
where  property  injured  without  neg- 
ligence). 

Examine  Miller  v.  New  York,  L. 
&  W.  R.  Co.,  125  N.  Y.  118,  34  N.  Y. 
St.  R.  607,  26  N.  E.  35,  rev'g  20  N.  Y. 
St.  R.  157,  3  N.  Y.  Supp.  245;  Lo- 
gan v.  North  Carolina  Et.  Co.,  116 
N.  C.  940. 

'•Chicago,  M.  &  St.  V.  Ry.  Co  v. 
Third  Nat.  Bank,  Chicago,  134  U.  S. 
276,  33  L.  ed.  900,  10  Sup.  Ct.  550. 

820 


§    464  ALIENATION    AND    FORFEITURE 

property."  The  corporation  forthwith  entered  into  an  in- 
denture with  a  corporation  of  another  State  engaged  in  a 
similar  business,  by  which  it  leased  and  transferred  to  that 
corporation  all  its  cars,  railroad  contracts,  patent  rights  and 
other  personal  property,  moneys,  credits  and  rights  of  action, 
for  the  term  of  ninety-nine  years,  except  so  far  as  the  contracts 
and  patents  should  expire  sooner;  and  covenanted  not  to 
"engage  in  the  business  of  manufacturing,  using  or  hiring 
sleeping  cars"  while  the  indenture  should  remain  in  force;  and 
the  lessee  covenanted  to  pay  all  existing  debts  of  the  lessor, 
and  to  pay  to  the  lessor  annually  the  sum  of  $264,000,  during 
the  entire  term  of  ninety-nine  years,  unless  the  indenture 
should  be  sooner  terminated  as  therein  provided.  It  was  held 
that  this  contract  was  unlawful  and  void,  because  beyond  the 
corporate  power  of  the  lessor,  and  involving  an  abandonment 
of  its  duty  to  the  public;  and  therefore  no  action  could  be 
maintained  by  the  lessor  upon  the  contract,  or  to  recover  the 
sums  thereby  payable,  even  while  the  lessee  had  enjoyed  the 
benefits  of  the  contract.17  In  another  Federal  case  the  facts 
were  as  follows:  A  lease  to  a  commercial  partnership  from  a 
railroad  corporation  of  a  strip  of  its  land  by  the  side  of  its  track 
in  the  State  of  Iowa,  for  the  purpose  of  erecting  and  maintain- 
ing a  cold  storage  warehouse  thereon,  contained  an  agreement 
that  the  corporation  should  not  be  liable  to  the  partnership  for 
any  damage  to  the  building  or  contents,  by  fire  from  the  loco- 
motive engines  of  the  corporation,  although  owing  to  its  negli- 
gence. At  a  trial  of  an  action  brought  in  the  Circuit  Court  of 
the  United  States  by  the  partnership  against  the  corporation 
to  recover  for  damage  to  the  building  and  contents  by  fire  from 
its  locomotive  engines,  owing  to  its  negligence,  under  a  statute 
of  the  State  making  any  railroad  corporation  liable  for  damages 
to  property  of  others  by  fire  from  its  locomotive  engines,  the 
plaintiff  contended  that  the  agreement  was  void  as  against  pub- 
lic policy.  It  appeared  that,  since  this  lease,  the  highest  court 
of  the  State,  in  an  action  between  other  parties,  had  at  first 

17  Central  Trans.  Co.  v.  Pullman's   Pal.  Car.  Co.,  139  U.  S.  24,  35  L.  ed. 

55,  11  Sup.  Ct.  478. 

830 


ALIENATION    AND    FORFEITURE  §    465 

held  a  like  agreement  to  be  void  as  against  public  policy,  but, 
upon  a  rehearing,  had  reversed  its  opinion,  and  entered  final 
judgment  affirming  the  validity  of  the  agreement;  and  it  also 
appeared  that  its  final  decision  was  not  inconsistent  with  its 
decision  or  opinion  in  any  other  case.  It  was  held,  that  the 
question  of  the  validity  of  the  agreement  was  one  of  statutory 
and  local  law,  or  of  general  jurisprudence;  and  that  the  final 
decision  of  the  state  court  thereon  was  rightly  followed  by  the 
Circuit  Court  of  the  United  States.18 

§  465.  Power  to  Alienate  Franchises — Legislative  Au- 
thorization.— It  is  within  the  power  of  a  legislature  which 
creates  a  corporation  and  grants  to  it  its  franchise,  to  empower 
it  to  sell,  lease  or  otherwise  transfer  those  franchises.19  And 
where  a  statutory  authorization  exists  to  alienate,  a  city's  con- 
sent thereto  is  unnecessary  although  the  franchise  right  to  use 
its  streets  was  granted  by  the  city.20    The  power  granted  to 

18  Hartford  Fire  Ins.  Co.  v.  Chicago,  Sup.  Ct.  416.  But  it  is  not  obliged, 
M.  &  St.  P.  Ry.  Co.,  175  U.  S.  91,  and  cannot  even  be  compelled  by 
99,  20  Sup.  Ct.  33,  44  L.  ed.  84.  "A  statute,  against  its  will,  to  permit 
railroad  corporation  holds  its  station  private  persons  or  partnerships  to 
grounds,  railroad  tracks  and  right  of  erect  or  maintain  elevators,  ware- 
way  for  the  public  use  for  which  it  is  houses  or  similar  structures,  for  their 
incorporated,  yet  as  its  private  own  benefit,  upon  the  land  of  the 
property,  and  to  be  occupied  by  it-  railroad  company.  Missouri  Pacific 
self  or  by  others,  in  the  manner  which  Railroad  Co.  v.  Nebraska,  1G4  U.  S. 
it  may  consider  best  fitted  to  pro-  403,  41  L.  ed.  489,  17  Sup.  Ct.  130." 
mote,  or  not  to  interfere  with,  the    Id.,  per  Gray,  J. 

public  use.  It  may,  in  its  discretion,  19  Williamctte  Mfg.  Co.  v.  Bank  of 
permit  them  to  be  occupied  by  others  British  Columbia,  119  U.  S.  191,  30 
with  structures  convenient  for  the  L.  ed.  384,  7  Sup.  Ct.  187;  St.  Louis 
receiving  and  delivering  of  freight  &  C.  R.  Co.  v.  East  St.  Louis  &  C. 
upon  its  railroad,  so  long  as  a  free  and  R.  Co.,  39  111.  App.  354,  case  aff'd 
safe  passage  is  left  for  the  carriage  of  139  111.  401,  28  N.  E.  1088;  State, 
freight  and  passengers.  C.rand  Trunk  Badger  Ilium.  Co.,  v.  Anderson,  97 
Railroad  v.  Richardson,  91  U.  S.  Wis.  114,  72  N.  W.  386. 
454,  23  L.  ed.  356.  And  it  must  20  Michigan  Teleph.  Co.  v.  City  of 
provide  reasonable  means  and  facil-  St.  Joseph,  1-1  Midi.  502,  80  N.  W. 
ities  for  receiving  goods  offered  by  383,47  1..  R.  A.  87,  7  Am.  Elec.  Cas. 
the  public  to  be  transported  over  1.  See  Moorshead  v.  United  Hys. 
its  road.  Covington  Stockyards  v.  Co.,  119  Mo.  App.  541,  96  S.  W. 
Keith,  139  U.  S.  128,  35  L.  ed.  73,  11    261. 

831 


§   465  ALIENATION    AND    FORFEITURE 

make  or  take  a  lease  of  a  railroad  may  be  limited  to  connecting 
or  continuous  lines.21  So  the  act  of  the  legislature  of  Ken- 
tucky of  January  22,  1858,  authorizing  any  railroad  company 
to  lease  its  road  to  another  railroad  company,  provided  its  road 
so  leased  should  be  so  connected  as  to  form  a  continuous  line, 
permits  the  lessee  company  to  take  leases  of  branches  by  means 
of  which  it  established  continuous  lines  from  their  several  ter- 
mini to  each  of  its  own.22  Under  the  laws  of  North  Carolina  a 
corporation  can  sell,  transfer  or  mortgage  its  franchises,  other 
than  its  franchise  of  existence,  and  the  franchise  so  far  as  it 
relates  to  receiving  fare  or  tolls,  may  be  sold  without  the  other 
property  of  the  corporation.23  In  a  Federal  decision,  rendered 
in  1888,  it  is  held  that  the  constitution  and  general  laws  of 
Oregon  do  not  authorize  a  railroad  corporation,  organized  under 
the  laws  of  the  State,  to  take  a  lease  of  a  railroad  and  franchise ; 
nor  do  the  general  laws  of  that  State  confer  upon  a  foreign  cor- 
poration a  right  to  make  a  lease  of  a  railroad  within  the  State, 
but  only  the  right  to  construct  or  acquire  and  operate  one 
there.24  Under  the  Pennsylvania  act  of  1870,25  authorizing 
leases  to  or  by  "railroad  companies,"  steam,  passenger  and  all 
railroads  are  included; 26  and  under  the  statute  of  1876  of  that 
State  27  water  companies  are  empowered  to  alienate  their  fran- 
chises and  property  and  another  water  company  may  become 
the  purchaser  and  owner  of  such  property.28  In  West  Virginia 
the  act  of  1901  29  vests  corporations  with  the  power  to  sell  all 

21  Chesapeake  &  O.  R.  Co.  v.  nian  Ry.  Co.,  130  U.  S.  1,  32  L.  ed. 
Howard,  14  App.  D.  C.  262,  27  Wash.  837,  9  Sup.  Ct.  409  (decided  in  1888). 
L.  Rep.  146;  W.  Va.  Code,  chap.  54,  25  Act  February  13,  1870,  P.  L.  31. 
§  53;  State,  Leese,  v.  Atchinson  &  26  Rafferty  v.  Central  Traction  Co., 
N.  R.  Co.,  24  Neb.  143,  38  N.  W.  43;  1  Pa.  Adv.  R.  419,  29  W.  N.  C.  542, 
Neb.  Comp.  Stat.,  chap.  16,  §  94.  2  Pitts.  L.  J.  (N.  S.)  319,  50  Am.  & 

22  Hancock  v.  Louisville  &  N.  R.  Eng.  R.  Cas.  239,  23  Atl.  884. 

R.  Co.,  145  U.  S.  409,  36  L.  ed.  755,  27  Act  April  17,  1876,  P.  L.  33, 
12  Sup.  Ct.  969.  amending  Act  April  29,  1874,  §  23, 

23  Central   Trust  Co.   of  N.   Y.   v.    P.  L.  83. 

Western  North  Carolina  Rd.  Co.,  89  28  Hey   v.    Springfield  Water  Co., 

Fed.  24,  31;  Code  N.  C,  §§  671,  673-  207  Pa.  38,  56  Atl.  265. 

675.  29Acts   1901,   p.   93,   c.   35;   Code 

"Oregon   R.  &  N.  Co.  v.   Orego-  1899,  C.  C.  52,  53,54. 

832 


ALIENATION    AND   FORFEITURE  §   466 

their  property,  where  they  act  in  good  faith  and  are  authorized 
so  to  do  by  the  vote  of  a  certain  per  cent  of  outstanding  stock, 
and  the  fact  that  the  company  was  incorporated  before  the  act 
does  not  prevent  its  application.30  Street  and  passenger  rail- 
ways and  traction  companies  are  also  authorized  under  state 
and  municipal  legislative  enactments  to  alienate  their  prop- 
erty.31 

§  466.  Power  to  Alienate  Franchises — Legislative  Au- 
thorization Continued. — It  is  held  that  a  transfer  of  the 
privileges  or  franchise  of  an  elevated  street  railroad  company 
is  not  precluded  by  a  prohibition,  in  the  ordinance  conferring 
such  franchise,  against  its  use  by  any  other  company;  the 
municipality  alone  has  the  right  to  enforce  such  prohibition 
as  it  alone  is  benefited  thereby.32  Nor  does  a  statutory  pro- 
hibition against  a  transfer  or  lease  by  a  corporation  of  its 
franchise  prevent  such  alienation  by  an  individual.33  In  Ken- 
tucky the  word  "franchise"  in  a  statute  providing  that  "no 
corporation  shall  lease  or  alienate  any  franchise  so  as  to  relieve 
the  franchise  or  property  held  thereunder  from  the  liability  of 
the  lessor  or  grantor,  lessee  or  grantee,  contracted  or  incurred 
in  the  operation,  use  or  enjoyment  of  such  franchise  or  any  of 
its  privileges,"  is  the  corporate  existence  or  charter  privileges 

30Germer  v.  Triple  State  Natural  R.  &  L.  Co.,  95  Wis.  29,  69  N.  W. 

Gas  &  Oil  Co.    (W.   Va.,  1906),  54  791,  36  L.  R.  A.  47,  under  Wis.  Laws 

S.  E.  509.  1883,  chap.  221,  as  am'd  by  Laws 

31  Moorshead  v.  United  Rys.  Co.,  1891,  chap.  127. 

119   Mo.   App.   541,   96    S.    W.   261  "Chicago  &  S.  S.  R.  T.  R.  Co.  v. 

(municipal    ordinance);     Hampe    v.  Northern  Trust  Co.,  90  111.  App.  460. 

Pittsburg  &  B.  Traction  Co.,  165  Pa.  See  Oregon  Ry.  &  Nav.  Co.  v.  Ore- 

468,25  Pitts.  L.J.  (N.  S.)  413,30Atl.  gonian  Ry.  Co.,  130  U.  S.  1,  9  Sup. 

931,  under  Pa.  Act  April  23,  1861,  Ct.  409,  32  L.  ed.  837,  noted  under 

P.  L.  410,  and  Pa.  Act  February  17,  §  467,  herein. 

1870,   P.    L.   31    (the   possession   of  M  Long    Acre    Electric    Light    & 

franchises  of  an  inclined  railroad  does  Power  Co.,  In  re,  101   N.  Y.  Supp. 

not   preclude   this   right);    Philadel-  400,  51    Misc.  407,  aff'd    102  N.  Y. 

phia  &  W.  C.  Tump.  Co.  v.  Phila-  Supp.  242,   117  App.   Div.  80,  also 

delphia  &  D.  C.  R.  Co.  (C.  P.),  5  Pa.  aff'd  188  N.  Y.  361,  80  N.  E.  1 101 ; 

Diet.  R.  305,  under  Act  March  22,  Laws  N.  Y.    1905,  p.   2()<J7,  c.  737, 

1887;  Wright  v.  Milwaukee  Electric  §  13. 

53  833 


§   466  ALIENATION    AND    FORFEITURE 

as  distinguished  from  the  corporeal  property  of  the  corpora- 
tion.34 In  that  State  the  statute  of  1903  35  provides  for  consent 
of  court  as  a  condition  to  making  a  sale  of  a  ferry  right  and 
imposes  certain  limitations  as  to  the  time  within  which  a  non- 
resident owner  shall  make  a  sale  to  a  resident  citizen  of  the 
State,  with  other  conditions,  the  non-compliance  with  which 
authorizes  a  revocation  of  the  grant;  but  in  applying  this  stat- 
ute it  was  held  that  such  non-compliance  did  not  per  se  operate 
to  revoke  a  lease,  but  that  this  must  be  done  by  a  direct  pro- 
ceeding for  that  purpose  instituted  by  the  State  or  county 
authorities,  or  by  the  lessor.36  In  New  York  a  lease  made  at 
public  auction  may  include  two  ferries,  in  the  discretion  of  the 
commissioners  of  the  sinking  fund  of  New  York  City.37  In  a 
Connecticut  case  a  bequest  was  made  to  a  charitable  corpora- 
tion located  in  the  State  of  Pennsylvania.  After  the  will  was 
made,  and  before  the  death  of  the  testator,  the  legislature  of 
the  latter  State  authorized  the  corporation  to  transfer  its  entire 
property  and  franchises  to  a  corporation  established  in  the  State 
of  New  York  for  the  same  charitable  purpose,  which  corpora- 
tion was  to  become  its  legal  successor  and  hold  and  enjoy  all 
its  corporate  franchises  and  powers.  The  legislature  of  New 
York  authorized  the  New  York  corporation  to  receive  the 
property  and  franchise  of  the  Pennsylvania  corporation.  The 
transfer  was  effected,  and  the  New  York  corporation  thereafter 
carried  on,  and  at  the  time  of  the  testator's  death  was  carrying 
on,  the  same  charitable  work  that  had  been  carried  on  by  the 
Pennsylvania  corporation,  using  the  same  means  and  employ- 
ing the  same  agencies.  The  legacy  was  a  general  one  with  no 
directions  as  to  the  objects  for  which,  or  the  class  of  persons  for 

34  Bailey  v.  Southern  Ry.  Co.,  112  St.  R.  588;  New  York  City  Consol. 
Ky.    424,   430,    61    S.    W.    31,   per  Act  1882,  chap.  410,  §  716. 
O'Kear,  J.  As   to   powers   to   take   or   make 

35  Ky.  Stat.  1903,  §  1808,  subd.  3.  grant   or  assignment   of  ferry  fran- 

36  Paynter  v.  Miller,  25  Ky.  L.  Rep.  chise,  subject  to  the  rights  of  New 
2222,  80  S.  W.  469.  York  City  or  other  municipal  cor- 

37  Starin  v.  Staten  Island  R.  T.  poration,  etc.,  see  Transp.  Corp. 
R.  Co.,  112  N.  Y.  206,  20  N.  Y.  St.  Law  of  N.  Y.,  Laws  1890,  chap. 
Rep.  898,  19  N.  E.  670,  rev'g  4  N.  Y.  566,  §  4. 

834 


ALIENATION    AND    FORFEITURE  §    467 

whose  benefit  the  money  was  to  be  applied.  It  was  decided 
that  the  legacy  lapsed.  The  court,  per  Park,  C.  J.,  gave  as  one 
of  the  reasons  for  the  above  decision  the  following:  "A  fran- 
chise of  a  corporation  is  its  life — its  being.  *  *  *  Mani- 
festly there  was  nothing  whatever  left  of  this  corporation  after 
the  transfer  was  made."  38 

§  467.  Power  to  Alienate  Franchises — Implied  Legislative 
Authorization — Presumptions — Construction  of  Statutes. — 
A  statute  39  empowering  all  railroad  companies  incorporated 
under  the  laws  of  the  State  to  make  "contracts  and  ar- 
rangements with  each  other,  and  with  railroad  corporations  of 
other  States,  for  leasing  or  running  their  roads,"  authorizes  a 
railroad  company  of  the  State  to  make  a  lease  of  its  road  to  a 
railroad  corporation  of  another  State,  but  confers  no  power  on 
a  railroad  company  of  the  other  State  to  take  such  a  lease,  if 
not  authorized  to  do  so  by  the  laws  of  its  own  State.40  But  it  is 
also  held  that  the  ordinary  clause  in  a  railroad  company's  char- 
ter, authorizing  it  to  contract  with  other  transportation  com- 
panies for  the  mutual  transfer  of  goods  and  passengers  over 
each  other's  roads,  confers  no  authority  to  lease  its  road  and 
franchises.41  And  it  is  further  decided:  That  the  power  to 
lease  a  railroad,  its  appurtenances  and  franchises,  is  not  to  be 
presumed  from  the  usual  grant  of  powers  in  a  railroad  charter; 
and,  unless  authorized  by  legislative  action  so  to  do,  one  com- 
pany cannot  transfer  them  to  another  company  by  lease,  nor 
can  the  other  company  receive  and  operate  them  under  such  a 

38  Cram  v.  Bliss,  47  Conn.  592,  593.    Hestonville,  M.  &  F.  Pass.  Ry.  Co., 

39  III.  Stat.  February  12,  1855.  9  Pa.  Dist.  R.  2,  under  Act  May  15, 
<°  St.  Louis  &  T.  II.  R.  Co.  v.  Terre    1895,   P.  L.  pp.  63,  64;    Michigan  C. 

Haute  &  I.  R.  Co.,  145  U.  S.  393,  12  C.  R.  Co.  v.  Weallcns,  24  Can.  S.  C. 

Sup.   Ct.   953,  36   !,   ed.   748.     See  309. 

Union  Pacific  R.  Co.  v.  Chicago,  R.        "Thomas    v.    Railroad    Co.,    101 

I.  &  P.  R.  Co.,  163  U.S.  564, 41  I. .  ed.  U.  S.  71,  25  L.  ed.  950.    See  Central 

265,  16  Sup.  Ct.  1173;  Beveridge  v.  Transp.  Co.  v.  Pullman's  Palace  Car 

New  York  Elev.   R.  Co.,   ill'  N.   Y.  Co.,  139  U.  S.  24,  35  L.  ed.  55,  11 

1,20  N.  Y.  St.  R.  962,  19  X.  I..  489,  Sup.  Ct.  478,  9  Ry.  &  Corp.  L.  J.  342, 

2  L.  R.  A.  648,  aff'g  5  X.  V.  St.   R  15  Am.  &  Eng.  R.  (as.  (107,  43  Alb. 

59,  under  X.  Y.  Act  L839;  <  >'Neill  v.  I..  .1.  328. 

s:jf, 


§    468  ALIENATION    AND    FORFEITURE 

lease;  that  the  use  of  the  words  "successors  or  assigns"  in  a 
proviso  attached  to  a  statute  making  specific  grants  to  a  cor- 
poration does  not  necessarily  imply  that  the  corporation  can 
transfer  all  its  property  and  its  franchises  to  another  corpora- 
tion, to  be  exercised  by  the  latter;  that  a  provision  in  a  general 
act  for  the  organization  of  corporations  that  a  corporation 
organized  under  it  may  authorize  its  own  dissolution  and  the 
disposition  of  its  property  thereafter,  does  not  authorize  such 
a  corporation,  not  dissolving  but  continuing  in  existence,  to 
dispose  of  all  its  corporate  franchises  and  powers  by  lease;  and 
that  a  provision  in  a  general  act  for  organization  of  corpora- 
tions for  the  purpose  of  navigating  streams,  with  power  to  con- 
struct railroads  where  portage  is  necessary,  and  that  a  corpora- 
tion organized  under  it  shall  not  lease  such  a  railroad,  does  not 
imply  that  without  such  a  restraint  the  corporation  could 
make  such  a  lease.42  Where  the  charter  of  a  railroad  company 
confers  the  right  to  transport  passengers  and  freight,  and  gives 
the  power  to  "farm  out"  the  right  of  transportation,  the  com- 
pany is  thereby  authorized  to  execute  a  valid  lease  of  its  prop- 
erty and  franchises  to  another  railroad  company.43  Again,  if  a 
statute  empowers  ferries  to  be  maintained  and  operated  across 
certain  streams  a  lease  may  be  made,  by  virtue  thereof,  by  a 
county  to  private  individuals.44 

§  468.  Power  to  Alienate  Franchises — Railroad  Com- 
panies.— The  franchises  of  a  railroad  company  cannot  be 
alienated  without  the  consent  of  the  State  which  granted  them. 
It  is  a  state  prerogative  to  put  the  administration  of  its  fran- 
chises into  such  hands  as  it  may  choose  and,  therefore,  the 
State  must  confer  the  right  upon  such  a  corporation  to  make 
a  transfer  of  them.45 


42  Oregon  Ry.  &  Nav.  Co.  v.  Ore-  44  State  v.  King  County  (Wash.), 
gonian  Ry.  Co.,  130  U.  S.  1,  32  L.  ed.  69  Pac.  1106,  under  Sess.  Laws  1899, 
837,    9    Sup.    Ct.    409.      See    §  466,  p.  39. 

herein.  45  State  v.   Morgan,  28  La.   Ann. 

43  Hill  v.  Atlantic  &  North  Caro-  482.  See  also  Louisville  &  N.  R.  Co. 
lina  Rd.  Co.,  143  N.  C.  539,  570.  v.  Kentucky,  161  U.  S.  677,  40  L.  ed. 

836 


ALIENATION    AND    FORFEITURE  §§    469,  470 


§  469.  Power  to  Alienate  Franchises— Banks — Street 
Railway  Companies— Telegraph  Lines.— A  bank  holding  its 
franchise  under  a  special  act  is  held  to  be  within  the  rule  pro- 
hibiting alienation  of  franchises  without  authority  from  the 
legislature.46  The  rule  also  applies  to  a  street  railway  com- 
pany's franchises ; 47  and  to  a  right  to  construct  and  operate  a 
telephone  or  telegraph  line.48 

§  470.  Power  to  Alienate  Franchises — Water  and  Irriga- 
tion Companies. — In    Kansas,    corporations    cannot    transfer 


849,  16  Sup.  Ct.  714,  3  Am.  &  Eng. 
R.  Cas.  (N.  S.)  525;  Branch  v.  Jesup, 
106  U.  S.  468,  27  L.  ed.  279, 1  Sup.  Ct. 
495;  Southern  Pac.  R.  Co.  v.  Esqui- 
bel  (N.  M.),  20  Pac.  109,  5  R.  R.  & 
Corp.  L.  J.  256.  Examine  Canada 
S.  R.  Co.  v.  Niagara  Falls  (Ch.),  22 
Ont.  Rep.  41. 

46  Fietsam  v.  Hay,  122  111.  293,  13 
N.  E.  501.  Compare  New  Hamp- 
shire Savings  Bk.  v.  Rickey,  121  Fed. 
956,  58  C.  C.  A.  194. 

47  French  v.  Jones,  191  Mass.  522, 
78  N.  E.  118.  Examine  Prospect 
Park  &  Coney  Island  R.  Co.  v.  Coney 
Island  &  B.  R.  Co.,  144  N.  Y.  152, 
63  N.  Y.  St.  Rep.  48,  39  N.  E.  17,  1 
Am.  &  Eng.  R.  Cas.  (N.  S.)  222,  26 
L.  R.  A.  610,  case  reverses  66  Hun, 
366,  50  N.  Y.  St.  Rep.  862,  21  N.  Y. 
Supp.  1046,  holding  that  franchise 
may  be  sold  to  rival  company  to  one 
with  which  it  is  under  contract  to 
allow  cars  to  run  over  its  tracks. 

48  Cumberland  Teleph.  &  Teleg. 
Co.  v.  City  of  Evansville,  127  Fed. 
187;  United  States  v.  Western  Un- 
ion Teleg.  Co.  (C.  C),  50  Fed.  28. 
See  Joyce  on  Electric  Law  (2d  cd.), 
§§  203  ct  seq. 

Grant  of  exclusive  franchises  or 
privileges  by  railroad  company  to 
telegraph  company;  extent  of  power. 
See  United  States  v.  Union  Pacific 
R.  Co.    (and  Western  Union  Teleg. 


Co.),  160  U.  S.  1,  16  Sup.  Ct.  190, 
40  L.  ed.  319,  6  Am.  Elec.  Cas.  697, 
rev'g  59  Fed.  813,  19  U.  S.  App. 
531,  aff'g  50  Fed.  28;  Western  Union 
Teleg.  Co.  v.  Western  &  Atlantic 
Teleg.  Co.,  91  U.  S.  283,  23  L.  ed. 
350, 1  Am.  Elec.  Cas.  194;  Mercantile 
Trust  Co.  v.  Atlantic  &  Pacific  R.  Co., 
63  Fed.  910;  Pacific  Postal  Teleg. 
Cable  Co.  v.  Western  Union  Teleg. 
Co.,  50  Fed.  493;  Western  Union 
Teleg.  Co.  v.  American  Union  Teleg. 
Co.,  9  Biss.  (C.  C.)  72;  Western  Union 
Teleg.  Co.  v.  Atlantic  &  Pacific  Teleg. 
Co.,  7  Biss.  (C.  C.)  367;  Western 
Union  Teleg.  Co.  v.  National  Teleg. 
Co.,  22  Blachf.  (C.  C.)  108;  Western 
Union  Teleg.  Co.  v.  American  Union 
Teleg.  Co.,  65  Ga.  160,  38  Am.  Rep. 
781;  St.  Louis  &  C.  R.  Co.  v.  Central 
Teleg.  Co.,  173  111.  508,  51  N.  E.  382; 
Union  Trust  Co.  v.  Atchison,  Topeka 
&  S.  F.  R,  Co.,  8  N.  M.  327,  43  Pac 
701 .  Examine  also  Joyce  on  Electric 
Law  (2d  ed.),  §§  35,  191-193. 

Special  franchise;  electrical  conduc- 
tors on  streets  assigned  to  individual 
and  by  him  to  corporation;  title  not 
defective  for  that  reason.  Long  \<n- 
Electric  Light  &  Power  Co.,  In  re, 
101  N.  Y.  Supp.  450,  51  Misc.  107. 
alTM  102  N.  Y.  Supp.  2VJ}  117  App, 
Div.  so,  also  alT'd  188  N.  Y.  301.  80 
N.  Y.  Supp.  101. 

837 


§     171  ALIENATION    AND    FORFEITURE 

those  franchises  received  from  the  State  which  confer  power 
upon  them  to  exist  as  artificial  bodies,  but  those  franchises 
denominated  as  secondary,  which  include  the  privileges  granted 
to  a  water  company,  with  the  right  to  take  tolls,  etc.,  may  by 
statute  be  lawfully  alienated  and  encumbered.49  But  where  a 
water  company  does  not  derive  power  from  the  legislature  to 
transfer  its  franchises  and  other  property,  it  does  not  obtain 
such  power  merely  from  a  city's  consent  to  alienate.50  An 
irrigating  company,  incorporated  under  the  laws  of  a  State,  to 
construct  and  operate  a  canal  for  irrigation,  waterworks  and 
manufacturing  purposes,  has  the  power,  with  the  assent  of  its 
stockholders,  to  sell  and  convey  to  another  irrigating  corpora- 
tion its  right  of  way,  canal,  personal  and  real  property,  if  the 
same  is  done  in  good  faith,  and  not  for  the  purpose  of  defraud- 
ing or  delaying  creditors.51 

§  471.  Power  to  Mortgage. — A  corporation  which  is  au- 
thorized to  sell  its  franchises  is  empowered  to  mortgage  them. 
Thus  a  statute  which  confers  upon  a  corporation  the  right  to 
take  water  from  a  river  and  to  conduct  it  through  canals, 
and  the  exclusive  right  to  the  hydraulic  power  and  privileges 
created  by  the  water  and  the  right  to  use,  rent  or  sell  the  same 
or  any  portion  thereof,  authorizes  the  corporation  to  mort- 
gage such  powers  and  privileges.52  So  a  grant  by  a  municipal 
corporation  to  a  railway  company  of  a  right  of  way  through 
certain  streets  of  a  municipality,  with  the  right  to  construct 
its  railroad  thereon  and  occupy  them,  in  itself  is  a  franchise 
which  may  be  mortgaged  and  pass  to  the  purchaser  at  a  sale 
under  foreclosure  of  the  mortgage;  and  there  is  nothing  in  the 
laws  of  Louisiana  which  forbids  such  transfer  of  a  franchise  to 
use  and  occupy  the  streets  of  a  municipality  by  a  railroad  cor- 
poration.53   In  1856  that  State  passed  a  general  law  authoriz- 

49  State  v.  Water  Co.,  61  Kan.  547,  Canal  Co.,  40  Kan.  96,  19  Pac. 
60  Pac.  337.  349. 

50  New  Albany  Waterworks  v.  52  Williamette  Mfg.  Co.  v.  Bank  of 
Louisville  Banking  Co.,  122  Fed.  776,  British  Columbia,  119  U.  S.  191,  30 
58  C.  C.  A.  576.  L.  ed.  384,  7  Sup.  Ct.  187. 

51  State     v.     Western     Irrigating  "New  Orleans,  S.  P.  &  L.  R.  R. 

838 


ALIENATION    AND    FORFEITURE  §    472 

ing  railroad  companies  to  mortgage  their  property  and  fran- 
chises. But  until  the  passage  of  such  act  such  franchises  in 
that  State  could  not  be  mortgaged.  Otherwise  that  act  would 
have  been  unnecessary.54  Again,  it  is  "well  settled  that  a  mort- 
gage of  a  railroad  to  be  constructed  and  of  its  appurtenances 
to  be  acquired  by  the  company  chartered  to  build  and  operate 
such  road,  is  valid."  55  Such  a  mortgage,  as  against  the  com- 
pany and  its  privies,  although  given  before  the  road  is  built, 
attaches  itself  thereto  as  fast  as  it  is  built,  and  to  all  property 
covered  by  its  terms  as  fast  as  it  comes  into  existence  as  prop- 
erty.56 

§  472.  Power    to    Make    and   Take    a    Lease— Railroad 
Companies— Natural  Gas,  Gas  and  Electric  Companies. — 

A  lease  by  a  railroad  company  of  all  its  road,  rolling  stock  and 
franchises  for  which  no  authority  is  given  in  its  charter  is 
ultra  vires  and  void.57  And  it  is  held  that  clear  and  specific 
authority  is  necessary  to  enable  a  railroad  company  to  lease  its 
property;  otherwise  such  lease  is  void.58  Again,  unless  specially 
authorized  by  its  charter,  or  aided  by  some  other  legislative 
action,  a  railroad  company  cannot  by  lease  or  other  contract 
turn  over  to  another  company  for  a  long  period  of  time  its  road 
and  all  its  appurtenances,  the  use  of  its  franchises,  and  the 
exercise  of  its  powers,  nor  can  any  other  railroad  company, 
without  similar  authority,  make  a  contract  to  run  and  operate 
such  road,  property,  and  franchises  of  the  first  corporation. 
Such  a  contract  is  not  among  the  ordinary  powers  of  a  railroad 
company,  and  is  not  to  be  inferred  from  the  usual  grant  of 
powers  in  a  railroad  charter.59    So  it  is  held  in  a  case  decided  in 

Co.   v.  Delamorc,  114  U.  S.  501,  5  68  Van  Steuben  v.  Central  R.  Co., 

Sup.  Ct.  1009,  29  L.  ed.  244.  178  Pa.  3G7,  39  W.  N.  C.  217,  35  Atl. 

54  State  v.  Morgan,  28  La.  Ann.  482.  992,  34  L.  R.  A.  577.     See  §§  4G5- 

M  Meyer  v.  Johnston,  53  Ala.  324,  467,  herein, 

per  Manning,  J.  "Pennsylvania  R.   R.  Co.   v.   St. 

"Galveston  Railroad  v.  Cowdrey,  Louis,  A.  &  T.  II.  R.  R.  Co.,   118 

11  Wall.  (78  U.  S.)  459,  20  L.  ed.  199.  U.  S.  290,  30  L.  ed.  83,  0  Sup.  Ct. 

"Thomas    v.    Railroad    Co.,    101  10:M.      See  upon  last   point  in   text 

U.  S.  71,  25  L.  ed.  950.  §  4G7,  herein. 

839 


§    473  ALIENATION    AND    FORFEITURE 

1886  that  no  authority  is  found  in  the  statutes  of  Indiana  for 
the  lease  of  an  entire  railroad  property  and  franchise  for  the 
period  of  ninety-nine  years.60  It  is  also  decided  in  Michigan 
that  a  part  of  a  railroad  company's  right  of  way  may  be  leased 
to  a  manufacturing  concern  where  it  expects  to  obtain  busi- 
ness therefrom.61  And,  under  a  Massachusetts  decision,  real 
property  which  a  corporation  is,  under  its  charter,  entitled  to 
hold,  may  be  leased  for  purposes  of  a  business  which  the  lessor 
could  not  legally  enter  into.62  Again,  a  railroad  company  has 
the  right  to  rely  upon  decisions  that  authority  to  lease  its  road 
exists,  as  such  decisions  when  made  by  the  highest  courts  of 
the  State  constitute  a  part  of  the  contract  which  cannot  be 
impaired  under  the  Constitution.63  The  rule  that  precludes  a 
railroad  company  without  legislative  authorization,  by  charter 
or  other  enactment,  from  leasing  its  entire  plant  for  a  long 
period  of  time,  applies  to  a  natural  gas  company ; 64  and  a  lease 
cannot  validly  be  made  by  a  corporation  of  its  franchise  to 
furnish  a  city  with  gas  and  electricity.65 

§  473.  Illegal  or  Ultra  Vires  Lease— Ratification— Es- 
toppel—Equity— Validating  Statutes.— The  fact  that  the  leg- 
islature, after  an  ultra  vires  lease  is  made,  passes  a  statute 

60  Pennsylvania  R.  R.  Co.  v.  St.  the  purpose  for  which  the  charter  was 
Louis,  A.  &  T.  H.  R.  Co.,  118  U.  S.  granted);  Illinois  Cent.  R.  Co.  v. 
630,  30  L.  ed.  284,  7  Sup.  Ct.  24,  118  Wathen,  17  111.  App.  582;  Gurney  v. 
U.  S.  290,  30  L.  ed.  83,  6  Sup.  Ct.  Minneapolis  Union  Elevator  Co.,  63 
1094.  Compare  Chicago,  R.  I.  &  Minn.  70,  30  L.  R.  A.  546;  Roby  v. 
P.  R.  Co.  v.  Union  Pacific  R.  Co.  New  York  C.  &  H.  R.  R.  Co.,  142 
(C.  C),  47  Fed.  15,  10  Ry.  &  Corp.  N.  Y.  176,  58  N.  Y.  St.  Rep.  642, 
L.  J.  283,  47  Am.  &  Eng.  R.  Cas.  case  reverses  65  Hun,  532,  48  N.  Y. 
340.  St.  Rep.  201,  20  N.  Y.  Supp.  551. 

61  Michigan  C.  R.  v.  Bulard,  120  62  Nye  v.  Storer,  168  Mass.  53,  6 
Mich.  416,  6  Det.  L.  N.  193,  79  N.  W.  Am.  &  Eng.  Corp.  Cas.  (N.  S.)  247, 
635.     Citing  Grand  Trunk  R.  Co.  v.  46  N.  E.  402. 

Richardson,  91  U.  S.  454,  23  L.  ed.  63  Southern  R.  Co.  v.  North  Car- 

356  (this  case  holds  that  the  erection  olina  R.  Co.  (C.  C),  81  Fed.  595. 

of  buildings  by  the  permission  of  a  84  Stowe  v.  Citizens'  Natural  Gas 

railroad  company  within  the  line  of  Co.,  23  Pa.  Co.  Ct.  R.  273. 

its    roadway    by    other    parties,    for  65  Visalia  Gas  &  E.  L.  Co.  v.  Sims, 

convenience  in  delivering  and  receiv-  104  Cal.  326,  37  Pac.  1042,  43  Am. 

ing  freight,  is  not  inconsistent  with  St.  Rep.  105. 

840 


ALIENATION    AND    FORFEITURE  §    474 

forbidding  the  directors  of  the  company,  its  lessees  or  agents, 
from  collecting  more  than  a  fixed  amount  of  compensation  for 
carrying  passengers  and  freight,  is  not  a  ratification  of  the  lease 
or  an  acknowledgment  of  its  validity.66  And  the  operation  of  a 
railroad  and  payment  of  rent  for  three  years  by  a  lessee  under 
a  lease  of  it  for  ninety-six  years,  which  was  executed  in  viola- 
tion of  the  corporate  powers  both  of  the  lessor  and  of  the 
lessee,  does  not  so  far  execute  the  contract  of  lease  by  part 
performance,  as  to  estop  the  lessee  from  setting  up  its  illegality 
in  an  action  at  law  to  recover  after  accruing  rent.67  But  while 
a  lease  for  nine  hundred  and  ninety-nine  years  of  a  railroad  and 
its  franchise  to  another  railroad  corporation  may  be  ultra 
vires  of  one  or  both,  still  it  will  not  be  set  aside  by  a  court  of 
equity  at  the  suit  of  the  lessor,  when  the  lessee  has  been  in 
possession,  paying  the  stipulated  rent  for  seventeen  years,  and 
has  taken  no  steps  to  rescind  the  contract.68  The  legislature 
may  validate  as  to  the  future  an  unauthorized  railroad  lease  of 
a  line  of  road  in  another  State,  where  the  road  is  operated 
thereafter  for  years  and  the  contract  thus  impliedly  readopted.69 

§  474.  Power  to  Assign  Franchises. — A  franchise  of  an 
illuminating  company  may  be  assigned  under  a  statutory  au- 
thorization,70 as  may  also  a  water  company's  exclusive  fran- 
chise.71 And  the  rule  prohibiting  the  sale  of  the  franchise  of  a 
public  or  quasi-public  corporation  is  held  not  applicable  to  a 
franchise,  derived  from  a  municipality,  to  erect  poles  and 
string  electric  wires  in  city  streets,  granted  to  a  company  and 
its  assigns.72     A  constitutional  provision  that  "corporations 

"Thomas    v.    Railroad    Co.,    101  Terre   Haute  &  I.  R.  Co.,  145  U.  S. 

U.  S.  71,  25  L.  ed.  950.  393,  36  L.  ed.  748,  12  Sup.  Ct.  953, 

87  Oregon    R.  &    N.  Co.  v.  Orego-  12  Ry.  &  Corp.  L.  J.  63,  46  Alb.  L. 

nian  Ry.  Co.,  130  U.  S.  1,  32  L.  ed.  J.  84. 

837,  9  Sup.  Ct.  409.    See  Visalia  (las  «•  Terre  Haute  &  I.  R.  Co.  v.  Cox, 

&  E.  L.  Co.  v.  Sims,  104  Cal.  326,  43  102  Fed.  825,  42  C.  C.  A.  654. 

Am.  St.  Rep.  105,  37  Pac.  1042,  as  70  State  Badger  Ilium.  Co.  v.  An- 

to   non-recovery   from   lessee   under  derson,  97  Wis.  114,  72  N.  W.  386. 

guaranty   of    certain    profits,    where  "San  Luis  Water  Co.  v.  Estrada. 

lease  is  void.  117  Cal.  168,  48  Pac.  1075. 

98  St.  Louis,  V.  &  T.  II.  R.  Co.  v.  "  Commercial  Electric  Light  &  P. 

841 


§    475  ALIENATION    AND    FORFEITURE 

may  be  found  under  general  laws,  but  shall  not  be  created  by 
special  act,"  is  held  to  apply  to  the  formation  or  creation  of 
corporations  and  to  the  powers  directly  conferred  upon  them 
by  legislative  enactment,  and  cannot  be  construed  as  prohibit- 
ing the  assignment  of  a  franchise  to  a  legally  organized  cor- 
poration by  persons  having  the  lawful  right  to  exercise  and 
transfer  the  same,  and  a  corporation  may  acquire  a  franchise 
granted  to  individuals.73 

§  475.  Assignment  of  Franchises  of  Insolvent  or  Bank- 
rupt Corporation — What  Passes. — A  statute  authorizing  the 
sale,  through  receivers,  of  franchises  of  insolvent  public  service 
corporations  and  conferring  them  for  the  unexpired  term  of 
the  grant  upon  the  person  or  persons  purchasing  them,  will  not 
receive  that  strict  construction  which  is  applied  to  legislative 
grants,  where  such  enactment  grants  no  new  rights  but  simply 
makes  provision  for  the  transmission  of  title  by  sale  or  lease  of 
the  rights  theretofore  granted.74  All  franchises  of  a  railroad 
company  which  can  be  parted  with  by  mortgage  pass  to  the 
assignee  of  the  company  in  bankruptcy,  and  may  be  trans- 
ferred to  a  purchaser  at  a  bankruptcy  sale.75  In  New  Jersey 
under  the  act  of  1842 76  the  legislature  authorized  the  sale, 
through  the  medium  of  public  receiverships,  of  the  franchises 
of  public  utility  corporations.  This  legislation  has,  with  few 
minor  changes,  been  preserved  since  that  date.77  The  sale  of 
franchises  of  insolvent  public  corporations  was  thereby  au- 
thorized to  be  made  for  the  unexpired  term  of  such  franchises 

Co.   v.   Tacoma,    17  Wash.   661,   50  render    of    its    property,    upon    the 

Pac.  592.  bankruptcy  of  the  company,  carries 

73  People  v.  Stanford,  77  Cal.  360,  the  franchises,  and  they  may  be  sold 

371,  2  L.  R.  A.  92,  18  Pac.  85.  and   passed   to   the  purchaser  at  a 

74McCarter,  Atty.  Genl.,  v.  Vine-  bankruptcy    sale."      New    Orleans, 

land  Light  &  Power  Co.  (N.  J.  Ch.,  Spanish  Fort  &  Lake  Rd.  Co.  v.  Del- 

1907),  65  Atl.  1041.  amore,  114  U.  S.  501,  510,  29  L.  ed. 

76  "It  follows  that  if  the  franchises  244,  5  Sup.  Ct.  1009,  per  Woods,  J. 
of  a  railroad  corporation  essential  to        76  P.  L.  1842,  p.  164. 
the  use  of  its  road,  and  other  tangi-       77  Rev.  Stat.  1846,  p.  136,  tit.  5, 

ble  property,  can  by  law  be  mort-  c.   3,    §  20;   Revision,   p.    192,    §  85; 

gaged  to  secure  its  debts,  the  sur-  P.  L.  1896,  p.  303,  §  82. 

842 


ALIENATION    AND    FORFEITURE  §   476 

to  any  person  or  persons  and  so  sanctioned  the  use  thereof  for 
the  specified  term  by  an  individual  purchaser,  and  also  be- 
stowed upon  him  the  use  and  enjoyment  of  the  franchises  so 
obtained  to  the  same  extent  that  the  stockholders  of  the  cor- 
poration to  which  the  franchises  theretofore  granted  could 
have  used  and  enjoyed  the  same.  These  franchises  are  such 
parts  of  the  sovereign  power  as  had  been  granted  to  the  corpo- 
ration, being  rights  and  privileges  only  held  and  enjoyed 
through  legislative  grant.  The  law  of  1881 78  was,  however,  in 
its  general  scope  and  purpose  the  same  as  that  of  1875,79  and 
clearly  withdrew  whatever  legislative  sanction  might  thereto- 
fore have  existed  for  the  use  by  an  individual,  of  the  sovereign 
prerogatives  purchased  under  decrees  of  courts,  and  required 
their  use  by  corporations  created  by  the  act  ex  proprio  vigore.80 

§  476.  Power  to  Purchase. — Under  a  California  decision 
corporations  formed  under  the  general  law  have  the  power  to 
purchase  and  hold  an  exclusive  franchise  or  privilege  granted 
by  the  legislature  to  an  individual  and  his  assigns.81  A  rail- 
road company  having  the  right  of  constructing  a  particular 
line  of  railroad,  with  general  power  to  purchase  all  kinds  of 
property  of  whatever  nature  or  kind,  may  purchase  from  an- 
other company  a  road  constructed  upon  that  line,  if  the  latter 
company  had  power  to  sell  and  dispose  of  the  same.82  A 
power,  however,  given  in  a  charter  of  a  railroad  company  to 
connect  or  unite  with  other  roads  refers  merely  to  a  physical 
connection  of  the  tracks,  and  does  not  authorize  the  purchase 
or  even  the  lease  of  such  roads  or  road,  or  any  union  of  fran- 
chises. So  where,  from  reasons  of  public  policy,  a  legislature 
declares  that  a  railway  company  shall  not  become  the  purchaser 
of  a  parallel  or  competing  line,  the  purchase  is  not  the  less  un- 
lawful, because  the  parties  choose  to  let  it  take  the  form  of  a 

"Act   February    17,    1881,    P.    L.  land   Light  &  Power  Co.  (N.  J.  Ch., 

p.  33;  Gen.  Stat.,  p.  3G94,  §§  34,  35.  1907),  65  Atl.  1041. 

78  P.  L.  1875,  p.  41.    The  year  that        "California    State    Teleg.    Co.    v. 

the  constitutional  amendments  took  Alta  Teleg.  Co.,  22  Cal   398. 
effect.  "  Branch  v.  Jesup,  106  U.  S.  468, 

80McCarter,  Atty.  Genl.,  v.  Vine-  27  L.  ed.  279,  1  Sup.  Ct.  495. 

843 


§    477  ALIENATION    AND    FORFEITURE 

judicial  sale.  And  where  a  statute83  provides  that  a  certain 
company  may  "from  time  to  time  extend  any  branch  road 
and  may  purchase  and  hold  any  road  constructed  by  another 
company,"  it  does  not  confer  a  general  power  to  purchase  roads 
constructed  by  other  companies  regardless  of  their  relations 
or  connections  with  such  specified  company.84  If  franchises 
and  property  are  acquired  by  a  railroad  corporation  from  an- 
other company,  subsequent  conveyances  of  land  made  to  the 
latter  pass  to  the  former.85  A  charter  authorization  to  supply 
light  and  motive  power,  or  heat,  generated  by  electricity  or 
other  artificial  means,  does  not  enable  a  corporation  to  pur- 
chase a  gas  plant  and  operate  the  same.86  Nor  does  a  statutory 
authority  to  sell  franchises  and  property  to  corporations  or- 
ganized under  similar,  or  the  same  state  laws,  empower  the 
purchase  of  a  foreign  corporation's  franchises  and  privileges.87 
But  if  a  statute  empowers  railroad  corporations,  who,  acting  in 
good  faith,  are  unable  to  complete  their  roads,  to  sell  their 
franchise  rights  and  property  to  any  other  company  without 
the  same  terminal  points,  the  stock  of  such  company  may  be 
purchased  by  another  railroad  company  in  order  to  accom- 
plish the  statutory  purpose.88  It  is  held,  however,  in  the  Fed- 
eral Supreme  Court,  that  unless  express  permission  be  given 
to  do  so,  it  is  not  within  the  general  powers  of  a  corporation  to 
purchase  stock  of  other  corporations  for  the  purpose  of  con- 
trolling their  management.89 

§  477.  Judicial  Sales — Decree — Generally. — Franchise  in- 
terests may  be  transferred  as  property  under  judicial  proceed- 
ings.90   The  power  given  under  the  state  law  to  a  corporation 

83  Ky.  Act  of  1856,  re-enacting  the  87  Dieterle  v.  Ann  Harbor  Paint  & 
Tenn.  Act  of  1855.  Enamel  Co.  (Mich.,  1906),  107  N.  W. 

84  Louisville   &   N.    R.    R.    Co.    v.    79. 

Kentucky,  161  U.  S.  677,  40  L.  ed.  88  Dewey  v.  Toledo,  A.  A.  &  N.  M. 

849,  16  Sup.  Ct.  714.  Co.,  91  Mich.  351,  51  N.  W.  1063. 

85  Smith  v.  Frankfort  &  C.  Ry.  Co.,  89  De  la  Vergne  Refrigerating  Co. 
24  Ky.  L.  Rep.  2040,  72  S.  W.  1088.  v.  German  Savings  Institution,  175 

86  Covington  Gas  Light  Co.  v.  City  U.  S.  40,  44  L.  ed.  65,  20  Sup.  Ct,  20. 
of  Covington,  22  Ky.  L.  Rep.  796,  90  Long  Acre  Electric  Light  & 
58  S.  W.  805.  Power  Co.,  In  re,  101  N.  Y.  Supp. 

844 


ALIENATION    AND   FORFEITURE  §   478 

to  mortgage  its  franchises  and  privileges  necessarily  includes 
the  power  to  bring  them  to  sale  and  make  the  mortgage  ef- 
fectual, and  the  purchaser  acquires  title  thereto  although  the 
corporate  right  to  exist  may  not  be  sold.91  A  sale  under  a 
junior  security  must  be  subordinate  to  one  that  is  prior  and 
paramount.  Successive  sales  of  the  same  franchises  can  no 
more  be  deemed  incompatible  than  successive  sales  of  the 
same  property.  "  We  all  know  that  a  sale  of  land  under  a 
judgment  does  not,  in  the  slightest  manner,  affect  a  prior 
mortgage.  A  subsequent  sale  of  the  same  land  may  be  made 
by  virtue  of  the  latter."  92  In  case  of  a  judicial  sale  to  pay 
debts  the  court  may,  it  is  held,  administer  the  assets  upon 
such  a  basis  as  it  might  have  done  in  case  of  a  dissolution, 
notwithstanding  no  dissolution  is  effected.93  If  a  branch  road 
owned  by  a  lessee  is  essential  to  a  leased  road  which  a  decree 
has  required  to  be  operated,  it  may  properly  be  included  in  the 
terms  thereof.94 

§  478.  Judicial  Sales — What  Does  and  Does  not  Pass — 
Purchasers'  Rights  and  Obligations. — A  grant  by  a  mu- 
nicipal corporation  to  a  railway  company  of  a  right  of  way 
through  the  city  streets  with  the  right  to  construct  a  railroad 
thereon  and  occupy  them  is  a  franchise  which  passes  to  a  pur- 
chaser upon  a  sale  under  foreclosure  of  a  mortgage  thereof.95 

460,  51  Misc.  407,  aff'd   102  N.  Y.  94  Southern  R.  Co.  v.  Franklin  &  P. 

Supp.   242,   117  App.   Div.  80,  also  R.  Co.,  96  Va.  693,  1  Va.  S.  C.  Rep. 

aff'd  188  N.  Y.  361,  80  N.  E.  1101.  113,  32  S.  E.  485,  44  L.  R.  A.  297. 

91  Vicksburg  v.  Vicksburg  Water-  ai  New  Orleans,  Spanish  Fort  & 
works  Co.,  202  U.  S.  453,  50  L.  ed.  Lake  Rd.  Co.  v.  Delamore,  114  U.  S. 
1102,  26  Sup.  Ct.  660.  501,  5  Sup.  Ct.  1009,  29  L.  ed.  244. 

92  Galveston,  etc.,  R.  Co.  v.  Cow-  The  court  said:  "When  there  lias 
drey,  11  Wall.  (78  U.  S.)  459,  476,  been  a  judicial  sale  of  railroad  prop- 
20  L.  ed.  199,  per  Bradley,  J.  Sale  erty  under  a  mortgage  authorized 
made  under  Tex.  Act  of  Dec.  19,  by  law,  covering  its  franchises,  it  is 
1  "v~.7,  Paschal's  Dig.,  arts.  4912-4914.  now  well  settled  that  the  franchises 

93  Toledo,  St.  L.  &  K.  C.  R.  Co.  v.  necessary  to  the  use  ami  enjoymenl 
Continental  Trust  Co.,  95  Fed.  497,  of  the  railroad  passed  to  the  pur- 
36  ' '  C.  A.  155,  96  Fed.  784,  37  C.  C.  chasers."  The  court  also  said: 
A.  587,  modifying  82  Fed.  642  and  "This  was  assumed  to  be  the  law  by 
86  Fed.  929.  the  opinion  of  this  court  pronounced 

sir, 


§   478  ALIENATION    AND    FORFEITURE 

But  it  is  also  held  that  when  a  State  covenants  and  agrees  that 
a  certain  corporation  shall  administer  certain  franchises,  the 
ordinary  judgment  creditors  of  that  corporation  may  seize  and 
sell  its  property,  but  not  its  franchises.96  And  a  franchise 
cannot  be  sold  under  execution  in  the  absence  of  statute  giving 
authority  therefor.97  A  mortgage  of  the  charter  of  a  corpora- 
tion, made  in  the  exercise  of  a  power  given  by  statute,  confers 
no  right  upon  purchasers  at  a  foreclosure  sale  to  exist  as  the 
same  corporation ;  if  it  confers  any  right  of  corporate  existence 
upon  them,  it  is  only  a  right  to  reorganize  as  a  corporation  sub- 
ject to  laws,  constitutional  and  otherwise,  existing  at  the  time 
of  the  reorganization.98  But  where  a  statute  provides  for  the 
sale,  under  foreclosure,  of  the  entire  roadbed,  track,  franchises 
and  chartered  rights  of  a  railroad  company  and  prescribes  the 
rights  of  purchasers,  they  become  vested  with  all  the  rights, 
privileges  and  franchises  of  the  foreclosed  company ;  and  they 
may  continue  the  business  under  the  old  corporate  name  or 
organize  a  new  corporation  therefor.99  So  where  by  statute 
the  purchaser,  in  case  of  a  sale,  under  process,  of  the  property 
or  franchises  of  any  manufacturing  or  other  corporation,  be- 
comes a  body  corporate  with  all  the  rights  of  such  corporation, 
all  the  gas  company's  rights  pass  by  judicial  sale  to  a  pur- 

by  Mr.  Justice  Matthews  in  the  case  Central  Trust  Co.,  193  U.  S.  93,  106, 

of    Memphis    Rd.    Co.    v.    Commis-  24  Sup.  Ct.  399,  48  L.  ed.  629,  per 

sioners,  112  TJ.  S.  609,  619,  28  L.  ed.  Day,  J.;  New  Orleans  Debenture  Re- 

837,  5   Sup.   Ct.   299,  where  it  was  demption  Co.  v.  Louisiana,  180  U.  S. 

said:  'The  franchise  of  being  a  cor-  320,  329,  45  L.  ed.  550,  21  Sup.  Ct. 

poration    need    not    be    implied    as  — ,  per  Peckham,  J. 

necessary  to  secure  to  the  mortgage  96  State  v.   Morgan,  28  La.   Ann. 

bondholders    or    the    purchasers    at  482. 

a    foreclosure    sale    the    substantial  97  Gregory  v.    Blanchard,  98  Cal. 

rights  intended  to  be  secured.    They  311,  33  Pac.  199. 

acquire  the  ownership  of  the  railroad  98  Memphis  &  R.  R.  Co.  v.  Railroad 

and  the  property  incident  to  it  and  Commissioners,    112   TJ.    S.    609,   28 

the    franchise    of    maintaining    and  L.  ed.  837,  5  Sup.  Ct.  299. 

operating  it  as  such.'     See  also  Hall  °9  Denniston   &   Sherman   Ry.   Co. 

v.  Sullivan  Rd.  Co.,  21  Law  Repr.  v.  St.  Louis  &  Southwestern  Ry.  Co., 

138;  Galveston  Rd.  v.  Cowdrey,  11  30  Tex.  Civ.  App.  474,  476,  72  S.  W. 

Wall.  (78  U.  S.)  459,  20  L.  ed.  199,"  201. 

Id.,  510,   per   Woods,  J.;   Julian   v. 

846 


ALIENATION    AND    FORFEITURE  §    479 

chaser.1  But  where  after  purchase  under  a  foreclosure  sale  a 
company  reorganizes,  the  corporation  whose  property  has 
been  so  sold  being  dissolved,  such  new  company  holds  title 
only  to  such  property  as  was  decreed  to  it  by  the  court.2  In  a 
great  public  enterprise  such  as  the  Union  Pacific  Railroad, 
under  a  congressional  charter  reserving  the  right  to  alter, 
amend  or  repeal,  public  interests,  and  not  simply  private  pur- 
poses are  to  be  regarded,  and  the  purchaser  at  judicial  fore- 
closure sale  takes  the  property  subject  to  the  proper  regula- 
tions and  use  established  by  Congress,  notwithstanding  the 
mortgage  foreclosed  may  have  antedated  the  legislation.3 
Under  the  laws  of  North  Carolina,  and  the  decisions  of  the 
highest  court  of  that  State  rendered  prior  to  1894,  there  was 
nothing  to  prevent  property  of  a  railroad  company  sold  under 
foreclosure  passing  to  the  purchaser  free  from  any  obligation 
for  debts  of  the  former  owner  arising  thereafter,  notwith- 
standing the  purchaser  was  not  a  domestic  railroad  corpora- 
tion.4 

§  479.  Exemption  or  Immunity  from  Taxation  or  Gov- 
ernmental Regulation — Not  Transferable  Unless  Expressly 

1  Gas  &  Water  Co.  of  Downington  399.  See  Wiggins  Ferry  Co.  v.  Ohio 
v.  Corporation  of  Borough  of  Down-  &  M.  R.  Co.,  142  U.  S.  396,  12  Sup. 
ington,  193  Pa.  255,  44  Atl.  282;  Ct.  188,  35  L.  ed.  1055;  Campbell  v. 
Act  May  25,  1878.  Pittsburg  &  W.  R.  Co.,  137  Pa.  574, 

2  Frank  v.  New  York,  L.  E.  &  W.  48  Phila.  Leg.  Int.  128,  21  Pitts.  L. 
R.  Co.,  122  N.  Y.  197,  33  N.  Y.  St.  J.  (N.  S.)  149,  20  Atl.  949,  46  Am.  & 
R.  235,  25  N.  E.  332,  8  Ry.  &  Corp.  Eng.  R.  Cas.  353;  Gulf,  C.  &  S.  F. 
L.  J.  470,  46  Am.  &  Eng.  R.  Cas.  356,  R.  Co.  v.  Newell  (Tex.),  11  S.  W.  342, 
aff'g  7  N.  Y.  St.  Rep.  814,  26  Wkly.  6  R.  R.  &  Corp.  L.  J.  533.  Compare 
D.  414.  See  National  Foundry  &  Frank  v.  New  York,  L.  E.  &  W.  Co., 
Pipe  Works  v.  Oconto  City  Water  122  N.  Y.  197,  33  N.  Y.  St.  Rep.  235, 
Supply  Co.,  105  Wis.  48, 81  N.W.  125.  46  Am.  &  Eng.  R.  Cas.  356,  8  Ry. 

3  Union  Pacific  Rd.  Co.  v.  Mason  &  Corp.  L.  J.  470,  25  N.  E.  332,  aff'g 
City  &  Fort  Dodge  Rd.  Co.,  199  U.  S.  7  N.  Y.  St.  Rep.  814,  26  Wkly.  D.  414. 
1P0,  50  L.  ed.  134,  26  Sup.  Ct.  19,  Rights  of  creditor  purchasing  at 
aff'g  128  Fed.  230,  64  C.  C.  A.  348,  foreclosure  sale,  when  extinguished. 
which  aff'd  124  Fed.  409.  See  Vcnner  v.   Farmers'  Loan  &  T. 

4  Julian  v.  Central  Trust  Co.,  193  Co.,  90  Fed.  348,  62  U.  S.  A.  141,  33 
U.  S.  93,  48  L.  ed.  629,  24  Sup.  Ct.  C.  C.  A.  95. 

847 


§   479  ALIENATION    AND    FORFEITURE 

Authorized  by  State.5 — It  is  now  well  settled  that  an  exemp- 
tion or  immunity  from  taxation  cannot  be  transferred  by  the 
immediate  grantee  unless  otherwise  so  declared  in  express 
terms.  And  although  the  obligations  of  a  legislative  contract 
granting  immunity  from  the  exercise  of  governmental  authority 
are  protected  by  the  Federal  Constitution  from  impairment  by 
the  State,  the  contract  itself  is  not  property  which  as  such  can 
be  transferred  by  the  owner  to  another,  but  is  personal  to  him 
with  whom  it  is  made  and  incapable  of  assignment,  unless  by 
the  same  or  a  subsequent  law  the  State  authorizes  or  directs 
such  transfer  in  terms  making  the  legislative  intent  clearly  ap- 
parent. The  rule  that  every  doubt  is  resolved  in  favor  of  the 
continuance  of  governmental  power,  and  that  clear  and  un- 
mistakable evidence  of  the  intent  to  part  therewith  is  required, 
which  applies  to  determining  whether  a  legislative  contract  of 
exemption  from  such  power  was  granted,, also  applies  to  deter- 
mining whether  its  transfer  to  another  was  authorized  or  di- 
rected. If  the  State,  by  virtue  of  the  same  power  which 
created  the  original  contract  of  exemption,  authorizes  or  di- 
rects, either  by  the  same  law  or  by  subsequent  laws,  the  transfer 
of  the  exemption  to  a  successor  in  title,  such  exemption  is  taken 
not  by  reason  of  the  inherent  right  of  the  original  holder  to 
assign  it,  but  by  the  State's  action  in  so  authorizing  or  directing 
the  transfer.  A  legislative  authority,  therefore,  to  transfer  the 
estate,  property,  rights,  privileges  and  franchises  of  a  corpora- 
tion to  another  corporation  does  not  authorize  the  transfer  of  a 
legislative  contract  of  exemption  or  immunity  from  taxation  or 
assessment.6    If  a  railroad  corporation  under  its  charter  is  to  be 

3  See     §  20,    herein,    upon    point  den  of  paving  employed  by  the  rail- 

whether  such  immunity  is  a  franchise,  road     company     from    whom    such 

"Rochester  Railway  Co.  v.  Roch-  rights,  etc.,  had  been  acquired.  It 
ester,  205  U.  S.  236,  247,  248,  254,  was  claimed  that  the  word  "privi- 
51  L.  ed.  — ,  27  Sup.  Ct.  469,  aff'g  leges"  was  sufficiently  broad  to  em- 
182  N.  Y.  116.  In  this  case  the  brace  within  its  meaning  such  ex- 
court  concluded  that  the  words  "the  emption,  and  that  when  added  to  the 
estate,  property,  rights,  privileges,  other  words  the  legislative  intent  to 
and  franchises,"  did  not,  as  to  a  pur-  transfer  the  exemption  was  clearly 
chasing  corporation,  embrace  within  manifested,  and  that  the  above  words 
their  meaning  the  assessment  or  bur-  of  the  law  under  consideration,  "the 

848 


ALIENATION    AND    FORFEITURE 


§  479 


forever  exempt  from  taxation  and  its  franchises  are  purchased 
by  another  railroad  company  and  a  statute  is  passed  reciting 


estate,"  etc.,  indicated  the  purpose  to 
vest  in  the  purchasing  corporation 
every  asset  of  the  selling  corpora- 
tion which  were  of  conceivable  value. 
The  court  said  that  there  was 
"authority  sustaining  this  position" 
which  would  not  "be  set  aside  with- 
out examination."  The  court  then 
reviews  certain  decisions  which  are  as 
follows:  Tennessee  v.  Whitworth,  117 
U.  S.  139,  29  L.  ed.  833,  6  Sup.  Ct. 
649;  Chesapeake  &  Ohio  Railroad  v. 
Virginia,  94  U.  S.  718,  24  L.  ed.  310; 
Southwestern  R.  Co.  v.  Georgia,  92 
U.  S.  665,  23  L.  ed.  757;  Humphrey 
v.  Pegucs,  16  Wall.  (83  U.  S.)  244, 
21  L.  ed.  326  (also  citing  Gunter  v. 
Atlantic  Coast  Line,  200  U.  S.  273, 
26  Sup.  Ct.  252,  50  L.  ed.  477). 
The  court  then  says:  "If  the  au- 
thority of  these  four  cases,  supported 
by  some  dicta  which  need  not  be 
cited,  remained  unimpaired,  it  would 
justify  the  opinion  that  a  legislative 
transfer  of  the  'privileges'  of  a  cor- 
poration includes  an  exemption  from 
the  taxing  or  other  governmental 
power  granted  by  a  contract  with  the 
State.  But  other  and  later  cases  have 
essentially  modified  the  rule  which 
may  be  deduced  from  them."  The 
following  cases  are  then  reviewed: 
Gulf  &  Ship  Island  Rd.  Co.  v.  Hewes, 
183  U.  S.  66,  22  Sup.  Ct.  26,  46  L.  ed. 
86;  Phenix  Fire  &  Marine  Ins.  Co.  v. 
Tennessee,  161  U.  S.  174,  16  Sup.  Ct. 
471,  40  L.  ed.  660;  Keokuk  &  West- 
ern Rd.  Co.  v.  Missouri,  152  U.  S, 
301,  14  Sup.  Ct.  592,  38  L.  ed.  450; 
Wilmington  &  Weldon  Rd.  Co.  v. 
Alsbrook,  146  U.  S.  279,  297,  36 
L.  ed.  972,  13  Sup.  Ct.  72;  Picard  v. 
Tennessee,  Virginia  &  Georgia 
Rd.  Co.,  130  U.  S.  637,  9  Sup.  Ct. 
640,  32  L.  ed.  1051,  6  R.  R.  &  Corp 

54 


L.  J.  131;  Chesapeake  &  Ohio  Rd. 
Co.  v.  Miller,  114  U.  S.  176,  21  L.  ed. 
121,  5  Sup.  Ct.  813.  The  court  after 
such  review  of  the  conflicting  cases 
says:  "We  think  it  is  now  the  rule, 
notwithstanding  earlier  decisions  and 
dicta  to  the  contrary,  that  a  statute 
authorizing  or  directing  the  grant  or 
transfer  of  the  'privileges'  of  a  cor- 
poration, which  enjoys  immunity 
from  taxation  or  regulation,  should 
not  be  included  as  including  that 
immunity,"  and  concludes  as  above 
stated. 

See  also  as  supporting  the  rule  in 
the  text  the  following  cases:  Mercan- 
tile Bank  v.  Tennessee,  161  U.  S.  160, 
171,  40  L.  ed.  656,  16  Sup.  Ct.  466 
(exemption  from  taxation  is  "a  per- 
sonal privilege  in  favor  of  the  cor- 
poration therein  specifically  referred 
to,  and  it  did  not  pass  with  the  sale 
of  that  charter,  and  there  is  no  ex- 
press or  clear  intention  of  the  law 
requiring  that  exemption  to  pass  as  a 
continuing  franchise  to  the  pur- 
chaser thereof,"  per  Peckham,  J.). 
.Memphis  &  Little  Rock  Rd.  Co.  v. 
Railroad  Commissioners,  112  U.  S. 
609,  28  L.  ed.  S37,  5  Sup.  Ct.  899 
(right  will  not  pass  to  successor  un- 
less intent  of  statute  to  that  effect 
is  clear  and  express);  Railroad  Coin- 
panics  v.  Gaines,  97  U.  S.  697,  24  L. 
ed.  1091;  Kentucky  C.  R.  Co.  v. 
Commonwealth,  10  Ky.  L.  Rep.  706, 
5  R.  R.  &  Corp.  L.  J.  293,  10  S.  W. 
269;  Baltimore,  Chesapeake  &  At- 
lantic Ky.  Co.  v.  Wicomico  County 
Commrs.,  10)5  Md.  277,  63  All.  678; 
Baltimore,  Chesapeake  &  Atlantic 
Ry.  Co.  v.  Ocean  City,  89  Md.  89,  42 
Atl.  922,  14  Am.  &  Eng.  R.  ("as. 
(N.  S.)  I95j  State  v.  Morgan,  28  La. 
Ann    4S2  (considered  in  note  under 

849 


§  479  ALIENATION   AND   FORFEITURE 

that  the  franchises  and  rights  of  the  former  corporation  had 
been  purchased  by  the  latter,  such  enactment  does  not  exempt 
the  purchasing  company  from  taxation;  especially  so  where  the 
charter  of  the  vendee,  containing  a  permission  for  taxing  its 
property,  was  granted  and  accepted  independently  of  the  old 
corporation,  and  it  is  neither  alleged  nor  proved  that  in  accept- 
ing the  provisions  of  the  last  enacted  statute  the  purchasing 
company  undertook  to  perform  any  duty  to  the  State  in  con- 
sideration of  the  supposed  exemption,  or  that  it  was  thereby 
induced  to  do  anything  of  peculiar  advantage  to  the  State.7 
Again,  where  a  railroad  company  is,  for  the  purpose  of  con- 
structing and  repairing  its  road,  invested  with  the  powers  and 
privileges  and  subjected  to  the  obligations  contained  in  cer- 
tain enumerated  sections  of  the  charter  of  another  company 
which  was  exempt  from  taxation,  such  grant  does  not  include 
immunity  from  taxation.8  Another  and  different  course  of 
reasoning  has  been  applied  as  follows:  Where  a  corporation 
incorporates  under  a  general  act  which  creates  certain  obliga- 
tions and  regulations,  it  cannot  receive  by  transfer  from  an- 
other corporation  an  exemption  which  is  inconsistent  with  its 
own  charter  or  with  the  constitution  or  laws  of  the  State  then 
applicable,  even  though  under  legislative  authority  the  exemp- 
tion is  transferred  by  words  which  clearly  include  it.9 

§  480,  herein);  Rochester,  City  of,  v.  tracks,  and  the  court,  per  Moody,  J., 

Rochester   Ry.  Co.,   182  N.  Y.   116,  said:  "Here  a  corporation,  deriving 

aff' d  205  U.  S.  236.  its  right  to  exist  under  the  act  of 

7  Evansville,  Henderson  &  Nash-  1884,  is  asserting  an  exemption  from 
ville  R.  R.  Co.  v.  Commonwealth,  9  a  duty  imposed  upon  it  by  the  law- 
Bush  (72  Ky.),  438.  See  Seaboard  &  which  created  it.  The  authorities 
R.  R.  Co.  v.  Norfolk  County,  83  Va.  are  numerous  and  conclusive  that  no 
195,  2  S.  E.  278.  corporation  can  receive  by  transfer 

8  Railroad  Co.  v.  Commissioners,  from  another  an  exemption  from  tax- 
103  U.  S.  1,  26  L.  ed.  359.  ation     or    governmental     regulation 

9  Rochester    Ry.    Co.    v.    City    of   which   is   inconsistent  with   its   own 
•  Rochester,  205  U.  S.  236,  51  L.  ed.    charter  or  with  the  constitution  or 

— ,  27  Sup.  Ct.  469  (aff 'g  182  N.  Y.  laws  of  the  State  then  applicable,  and 

116).    In  this  case  this  rule  was  ap-  this  is  true,  even  though,  under  legis- 

plied  to  a  contract  of  exemption  with  lative    authority,    the   exemption   is 

a  street  railway  company  from  as-  transferred  by  words  which  clearly 

sessments    for   paving    between    the  include    it.      Trask   v.    Maguire,    18 

850 


ALIENATION    AND   FORFEITURE  §    4S0 

§  480.  Exemption  or  Immunity  from  Taxation,  etc., 
Continued— Judicial  Sale— Sale  Under  Mortgage  or  Statu- 
tory Lien.— Upon  the  sale  of  the  property  and  franchise  of  a 
railroad  corporation  under  a  decree  founded  upon  a  mortgage 
which  in  terms  covers  the  franchise,  or  under  a  process  upon  a 
money  judgment  against  the  company,  immunity  from  taxa- 
tion upon  the  property  of  the  company  provided  in  the  act  of 
incorporation  does  not  accompany  the  property  in  its  transfer 
to  the  purchaser.  The  immunity  from  taxation  in  such  cases  is 
a  personal  privilege  of  the  company  and  not  transferable.10 

Wall.  (85  U.  S.)  391,  21  L.  ed.  938;  or  in  the  charter  itself."  Id.,  pp.  254, 
Shields  v.  Ohio,  95  U.  S.  319,  24  L.  255.  The  railroad  company  in  this 
ed.  357;  Maine  Central  R.  R.  Co.  v.  case  was  incorporated  on  Febru- 
Maine,  96  U.  S.  499,  24  L.  ed.  836;  ary  25,  1S90,  under  a  law  of  New 
Railroad  Co.  v.  Georgia,  98  U.  S.  359;  York,  enacted  May  6,  1884,  chap. 
Louisville  &  Nashville  R.  R.  Co.  v.  252,  Laws  N.  Y.  1884. 
Palmes,  109  U.  S.  244,  25  L.  ed.  185;  10  Morgan  v.  Louisiana,  93  U.  S. 
Memphis  &  Little  Rock  Rd.  Co.  v.  217,  23  L.  ed.  S60.  See  also  Nor- 
Commissioners,  112  U.  S.  609,  5  Sup.  folk  &  W.  R.  Co.  v.  Pendleton,  156 
Ct.  299,  28  L.  ed.  837;  St.  Louis,  Iron  U.  S.  667,  39  L.  ed.  574,  15  Sup.  Ct. 
Mountain  &  Southern  Rd.  Co.  v.  413,  noted  under  §  481,  herein. 
Berry,  113  U.  S.  465,  28  L.  ed.  1055,        The   privilege   of  exemption   from 

5  Sup.  Ct.  529;  Keokuk  &  Western  taxation  is  not  a  transferable  right 
Rd.  Co.  v.  Missouri,  152  U.  S.  301,  14  where  it  is  apparent  from  the  charter 
Sup.  Ct.  592,  38  L.  ed.  482;  Norfolk    that    the    State    never    intended    to 

6  Western  Rd.  Co.  v.  Pendleton,  156  confer  on  the  grantee  the  power  to 
U.  S.  667,  39  L.  ed.  574,  15  Sup.  Ct.  convey  such  right  to  another  corpo- 
413;  Yazoo  &  Mississippi  Valley  Ry.  ration  or  to  a  natural  person;  such 
Co.  v.  Adams,  180  U.  S.  1,  45  L.  ed.  right  of  exemption  is  an  indivisible 
395,  21  Sup.  Ct.  240;  Grand  Rapids  obligation  and  cannot  be  broken  up 
&  Indiana  Ry.  Co.  v.  Osborn,  193  and  divided  into  as  many  obligations 
U.  S.  17,  21  Sup.  Ct.  310,  48  L.  ed.  and  rights  as  the  incorporators  may 
598;  San  Antonio  Traction  Co.  v.  desire,  nor  can  the  right  to  expro- 
Altgelt,  200  U.  S.  304,  50  L.  ed.  491,  priate  property  be  parceled  out 
26  Sup.  Ct.  261.  among    purchasers    of    the     various 

"The  principle  governing  these  de-  divisions  of  a  railroad.  Several  con- 
cisions, so  plain  that  it  needs  no  porations  possessing  the  rights  and 
reasoning  to  support  it,  is  that  those  franchises  stated  cannot  spring  into 
who  seek  and  obtain  the  benefit  of  a  existence  by  the  act  of  a  railroad 
charter  of  incorporation  must  take  company  in  mortgaging  and  selling 
the  benefit  under  the  conditions  and  separate  divisions  of  their  mad  with 
with  the  burdens  prescribed  by  the  the  rights  and  franchises  applicable  to 
laws  then  in  force,  whether  written  each  division,  because  this  would  be 
in  the  constitution,  in  general   laws  the   exercise   of  a   prerogative   by   a 

851 


§    480  ALIENATION    AND    FORFEITURE 

Where  a  statute  of  West  Virginia  regulated  sales  under  fore- 
closure of  mortgages  by  railroad  companies,  and  provided  that 
"such  sale  and  conveyance  shall  pass  to  the  purchaser  at  the 
sale,  not  only  the  works  and  property  of  the  company,  as  they 
were  at  the  time  of  making  the  deed  of  trust  or  mortgage,  but 
any  works  which  the  company  may,  after  that  time  and  before 
the  sale  have  constructed;"  and  that  "upon  such  conveyance 
to  the  purchaser,  the  said  company  shall  ipso  facto  be  dis- 
solved;" and  further,  that  "said  purchaser  shall  forthwith  be  a 
corporation"  and  "shall  succeed  to  all  such  franchises,  rights 
and  privileges  *  *  *  as  would  have  been  had  *  *  * 
by  the  first  company  but  for  such  sale  and  conveyance,"  it 
was  held  that  purchasers  thus  becoming  a  corporation  derived 
the  corporate  existence  and  powers  of  the  corporation  from 
this  act,  and  were  subject  to  the  general  laws  as  to  corporations 
then  in  force,  and  also  that  an  immunity  from  taxation  was 
not  embraced  in  the  words  of  description  in  the  act,  and  did 
not  pass  to  the  new  corporation.11  A  judicial  sale  and  convey- 
ance made  under  order  of  court,  of  the  franchises  of  a  corpora- 
tion whose  taxation  is  limited  by  statute  of  the  State  incorpo- 
rating it  to  a  rate  therein  named,  carries  to  the  purchaser,  if 
anything,  only  the  franchise  to  be  a  corporation;  and  a  cor- 
poration organized  to  receive  and  receiving  conveyance  of  such 
franchises,  is  not  the  same  corporation  as  the  original  corpora- 
tion, and  is  liable  to  taxation  according  to  the  constitution  and 
laws  of  the  State  in  force  at  the  time  of  the  sale,  or  which  may 
be  subsequently  adopted  or  enacted,  and  is  not  entitled  to  the 
limitation  and  exemption  contained  in  the  original  act  of  in- 
corporation.12 Again,  the  legislature  of  Florida,  acting  under 
the  constitution  of  the  State,  passed  an  improvement  act, 
exempting  from  taxation  the  capital  stock  of  railroad  com- 
panies accepting  its  provisions.     The  Alabama  and  Florida 

creature  that  belongs  exclusively  to  Miller,  114  U.  S.  176,  5  Sup.  Ct.  813, 
its  creator.     State  v.  Morgan,  28  La.    29  L.  ed.  121. 

Ann.  482.  1J  Mercantile   Bank   v.   Tennessee, 

11  Chesapeake  &  Ohio  Ry.  Co.  v.    161  U.  S.  160,  40  L.  ed.  656,  16  Sup. 

Ct.  466. 

852 


ALIENATION    AND    FORFEITURE  §   480 

Railroad  Company  was  organized,  and  constructed  a  railroad 
within  the  state  limits,  and  became  entitled  to  enjoy  the 
exemption.  In  1868  the  State  of  Florida  adopted  a  constitu- 
tion which  provided  for  a  uniform  and  equal  rate  of  taxation, 
and  that  the  property  of  corporations  theretofore  or  thereafter 
to  be  incorporated  should  be  subject  to  taxation.  The  road 
and  property  rights,  privileges  and  franchises  of  the  A.  &  F.  Co. 
being  sold  under  the  decree  of  foreclosure,  became  by  mesne 
conveyances  vested  in  the  Pensacola  and  Louisville  Railroad 
Co.  In  1872  the  legislature  enacted  that  the  P.  &  L.  Co.,  as 
assignees  of  the  A.  &  F.  Co.,  should  be  exempted  from  taxation 
during  the  remainder  of  the  period  for  which  the  A.  &  F.  Co. 
would  have  been  exempted.  In  1877  the  title  of  the  P.  &  L. 
Co.,  to  its  road  and  other  property,  and  its  franchises,  rights, 
privileges,  easements  and  immunities  were  conveyed  to  the 
Pensacola  Railroad  Company,  and  the  legislature  authorized 
the  P.  R.  Co.  to  acquire  and  enjoy  them.  The  P.  &  L.  Co. 
possessed,  among  other  things,  the  power  to  lease  to  a  railroad 
company  out  of  the  State.  It  was  claimed  that  this  right  passe<  1 
to  the  P.  R.  Co.,  and  the  latter  leased  its  railroad  and  property 
rights,  privileges,  easements  and  immunities  to  the  plaintiff  in 
error.  It  was  held  that  the  right  of  exemption  from  taxation 
did  not  pass  from  the  A.  &  F.  Co.  to  the  P.  &  L.  Co.,  by  the 
sale  under  the  mortgage.  It  was  also  decided  that  the  language 
of  the  act  of  1877  was  broad  enough  to  create  that  right  anew, 
if  the  legislative  grant  was  valid;  but  that  the  legislature  of 
Florida,  after  the  adoption  of  the  constitution  of  1868,  could 
not  make  an  original  grant  to  a  railroad,  exempting  its  rail- 
road property  from  taxation;  and  that  any  right  of  this  kind 
that  could  have  been  created  by  the  act  of  1877,  was  personal 
and  not  assignable.13  Where  a  decree  to  enforce  a  statutory 
lien  is  retained  by  the  State,  upon  the  property,  real  and  per- 
sonal, stock  and  franchises  of  a  railroad  company,  and  (lie 
property  and  franchises  are  sold,  such  property  is  thereafter  .sub- 
ject to  taxation  under  the  laws  of  the  State,  as  immunity  there- 

13  Louisville  &  N.  R.  Co.  v.  Palmes,    109  U.  S.  244,  27  L.  ed.  922,  3  Sup. 

Ct.  193. 

853 


§    481  ALIENATION    AND    FORFEITURE 

from,  if  possessed  by  the  company,  does  not  pass  to  the  pur- 
chaser.14 

§  481.  Exemption  or  Immunity  from  Taxation,  etc.. 
Continued— Whether  Passes  on  Consolidation  of  Corpo- 
rations.—The  question  whether  an  exemption  or  immunity 
from  taxation  or  governmental  regulation  passes  on  consolida- 
tion 15  of  corporations  necessarily  involves  the  points  whether 
by  such  consolidation  an  entirely  new  corporation  is  called  into 
existence  and  the  old  constituent  companies  dissolved  and  de- 

14  Railroad  Co.  v.  Hamblen,  5  Sup.  Ct.  529;  Green  County  v.  Con- 
County  of,  102  U.  S.  273,  26  L.  ed.  ness,  109  U.  S.  104,  3  Sup.  Ct.  69,  27 
152.  See  also  Wilson  v.  Gaines,  103  L.  ed.  872;  Railroad  Co.  v.  Georgia, 
U.  S.  417,  421,  26  L.  ed.  401.  "In  98  U.  S.  359,  361,  25  L.  ed.  185; 
the  present  case  the  lien  of  the  State  Clearwater  v.  Meredith,  1  Wall.  (68 
was  put  by  the  statute  only  on  the  U.  S.)  25, 17  I,,  ed.  604;  East  St.  Louis 
property  of  the  company.  It  did  not  Connecting  Rd.  Co.  v.  Jarvis,  92  Fed. 
even  in  express  terms  include  the  735,  743,  34  C.  C.  A.  639;  Tod  v. 
franchises  which  were  necessary  to  Kentucky  Union  Land  Co.,  57  Fed. 
the  operation  of  the  road.  Under  47,  56,  57,  case  rev'd  Marbury  v. 
such  circumstances,  if  there  were  Union  Land  Co.,  62  Fed.  335,  336. 
nothing  more,  it  would  seem  to  be  Alabama:  Meyer  v.  Johnston,  64 
clear  beyond  all  question  that  a  sale  Ala.  603,  656. 

under  the  lien  would  not  necessarily  Indiana:    McMahan    v.  Morrison, 

carry   with   it   any   immunity   from  16  Ind.  172,  79  Am.  Dec.  418. 

taxation  which  the  property  enjoyed  Massachusetts:  Adams  v.  Yazoo 

in   the  hands   of   the   original    com-  &  M.  V.  R.  Co.,  77  Mass.  194,  24  So. 

pany,"  per  Waite,  C.  J.  200,  205,  60  L.  R.  A.  33. 

15  Distinction  between  consolidation  Michigan:  Shadford  v.  Detroit, 
and  merger.  See  Yazoo  &  Mississippi  Y.  &  A.  A.  Ry.  130  Mich.  300,  89  N. 
Valley  Ry.  Co.  v.  Adams,  180  U.  S.  W.  960;  Pingree  v.  Michigan  Central 
1,  21,  45  L.  ed.  395,  21  Sup.  Ct.  240.  R.  Co.,  118  Mich.  314,  338,  76  N.  W. 

Consolidation  is  a  merger.     Green  635,  53  L.  R.  A.  274. 

County  v.  Conness,  109  U.   S.  104,  Montana:  State,  Nolan,  v.  Mon- 

27  L.  ed.  872,  3  Sup.  Ct.  69;  State,  tana  R.  Co.,  21  Mont.  221,  53  Pac. 

Nolan,  v.  Montana  R.  Co.,  21  Mdnt.  623,  11  Am.  &  Eng.  R.  Cas.  (N.  S.) 

221,  53  Pac.  623,  11  Am.  &  Eng.  R.  353,  45  L.  R,  A.  271. 

Cas.  (N.  S.)  353,  45  L.  R.  A.  271.  Nebraska:    State   v.    Atchison   & 

Meaning    of    ivord    consolidation.  N.  R.  Co.,  24  Neb.  143,  38  N.  W.  43, 

See  the  following  cases:  8  Am.  St.  Rep.  464. 

United  States;  Keokuk  &  W.  R.  Oklahoma:     Overstreet    v.    Citi- 

Co.  v.  Missouri,  152  U.  S.  301,  308,  zens'  Bank,  12  Okl.  383,  72  Pac.  37D. 

14  Sup.  Ct.  592,  38  L.  ed.  450;  St.  Pennsylvania:   Lauman    v.    Leb- 

Louis,  I.  M.  &  S.  Ry.  Co.  v.  Berry,  anon  Valley  R.  Co.,  30  Pa.  42,  72  Am. 

113  U.  S.  465,  466,  28  L.  ed.  1055,  Dec.  685. 

854 


ALIENATION    AND    FORFEITURE  §    481 

stroyed;  whether  such  consolidated  company  is  subject  to  a 
new  constitution;  and  also  the  effect  of  a  reservation  of  the 
right  of  the  State  to  alter,  amend  or  repeal  charters  and  statu- 
tory grants.  In  numerous  cases  it  is  held  that  by  consolida- 
tion a  new  corporation  is  created  and  that  the  old  consolidating 
companies  cease  their  existence ; 16  that  such  new  consolidated 
corporation  is  subject  to  an  existing  new  constitution  of  the 
State  adopted  prior  to  the  consolidation;17  that  its  franchises 
are  left  to  be  determined  by  the  general  law  as  it  existed  at  the 
time  of  consolidating ; 18  and  that  a  consolidation  merges  the 
franchises  and  privileges  of  each  original  corporation  in  the 
new  company  so  that  they  continue  to  exist  in  respect  thereto, 
that  is,  the  old  constituent  companies  retain  their  original  status 
towards  the  public  and  the  State  the  same  as  if  the  consolida- 
tion had  not  taken  place.19  The  effect  of  consolidation,  how- 
ever, depends  in  every  case  upon  the  legislative  intent  as  evi- 

18  Shaw  v.  City  of  Covington,  194  1,  21   Sup.  Ct.  240,  45  L.  ed.  395; 

U.  S.  593,  48  L.  ed.  — ,  24  Sup.  Ct.  Keokuk  &  Western  R.  Co.  v.  Mis- 

— ;  Minneapolis  &  St.  L.  Ry.  Co.  v.  souri,  152  U.  S.  301,  14  Sup.  Ct.  592, 

Gardner,  177  U.  S.  332,  24  L.  ed.  793,  38  L.  ed.  450;  Adams  v.  Yazoo  & 

20  Sup.  Ct.  656;  Keokuk  &  Western  Mississippi  Valley  Ry.  Co.,  77  Miss. 

R.  R.  Co.  v.  Missouri,  152  U.  S.  301,  194,  1  Miss.  Dec.  (No.  30)  296,  24  So. 

38  L.  ed.  450,  14  Sup.  Ct.  592;  Pull-  200,  317,  60  L.  R.  A.  33. 

man's  Palace  Car  Co.  v.  Missouri  Pac.  18  Shaw  v.  City  of  Covington,  194 

Ry.  Co.,  115  U.  S.  587,  6  Sup.  Ct.  U.  S.  593,  48  L.  ed.  — ;  24  Sup.  Ct. 

194,  29  L.  ed.  499;  St.  Louis,  I.  M.  &  — ;  Railroad  Company  v.  Maine,  96 

S.  Ry.  Co.  v.  Berry,  113  U.  S.  465,  5  U.  S.  499,  24  L.  ed.  836. 

Sup.  Ct.  529,  28  L.  cd.  1055;  Clear-  19  Green  County  v.   Conness,   109 

water  v.  Meredith,  1  Wall.  (68  U.  S.)  II.  S.  104,  27  L.  ed.  872,  3  Sup.  Ct. 

25,  17  L.  ed.  604;  Winn  v.  Wabash  69;  Railroad  Company  v.  Maine,  96 

R.  Co.,  118  Fed.  55,  58;  Citizens'  St.  U.  S.  499,  24  L.  ed.  836;  Branch  v. 

Ry.  Co.  v.  City  of  Memphis,  53  Fed.  Charleston,  92  U.  S.  677,  23  L.  ed. 

715,  731,  per  Hammond,  J.;  Market  750;  Charleston,  City  of,  v.  Branch, 

St.  R.  Co.  v.  Hellman,  109  Cal.  571,  15  Wall.  (82  U.  S.)  470,  21  L.  ed.  193; 

42  Pac.  225.     See  Rochester  Ry.  Co.  Tomlinson  v.    Branch,   15  Wall.   (82 

v.  City  of  Rochester,  205  U.  S.  236,  U.  S.)  460,  21  L.  cd.  189;  Citizens' 

aff'g   182   N.   Y.    116,   noted   under  St.  Ry.  Co.  v.  City  of  Memphis,  53 

§§  479,  482,  herein.  Fed.    715,    731,    per    Hammond,    J. 

17  San    Antonio    Traction    Co.    v.  See   Chesapeake   <k  Ohio   R.   Co.   v. 

Altgelt,  200  U.  S.  304,  50  L.  ed.  491,  Virginia,  94  U.  S.  718,  24  L.  ed.  310; 

26  Sup.  Ct.  261;  Yazoo  &  Mississippi  Delaware    Railroad    Tax,    IS    Wall. 

Valley  Ry.  Co.  v.  Adams,  180  U.  S.  (85  U.  S.)  206,  21  L.  ed.  888. 

855 


§    482  ALIENATION    AND    FORFEITURE 

denced  by  the  statute  under  which  corporations  are  permitted 
to  consolidate.20  But  it  may  be  stated  generally  that  in  the 
absence  of  express  statutory  direction,  or  of  an  equivalent  im- 
plication by  necessary  construction,  provisions,  in  restriction 
of  the  right  of  the  State  to  tax  the  property  or  to  regulate  the 
affairs  of  its  corporations,  do  not  pass  to  new  corporations 
succeeding,  by  consolidation  or  by  purchase  under  foreclosure, 
to  the  property  and  ordinary  franchises  of  the  first  grantee.21 

§  482.  Same  Subject — When  Exemption  Does  and  Does 
not  Pass — Illustrative  Decisions. — Where  a  railroad  com- 
pany is  reorganized  under  a  special  act  of  the  legislature  but  no 

20  Central  Railroad  &  Bkg.  Co.  v.  185,  it  was  determined  that  these 
Georgia,  92  U.  S.  665,  23  L.  ed.  757;  acts  of  consolidation  were  new  char- 
Edison  Electric  Light  Co.  v.  New  ters,  and  subject  to  amendment  or 
Haven  Electric  Co.,  35  Fed.  233,  236,  repeal,  although  the  act  of  consolida- 
per  Shipman,  J.;  Chicago,  S.  F.  &  tion  gave,  in  terms,  all  of  the  fran- 
C.  R.  Co.  v.  Ashling,  160  111.  373,  43  chises,  privileges  and  immunities  of 
N.  E.  373.  the  old  charters  which  were  passed 

"We  have  been  referred  to  many  without  the  reservation  of  the  State 
cases  in  which  the  courts  have  con-  to  amend  or  repeal  In  Tomlinson 
strued  acts  consolidating  two  or  more  v.  Branch,  15  Wall.  (82  U.  S.)  460, 
existing  corporations  into  one,  and  462,  21  L.  ed.  189,  and  Central  R.  R. 
some  acts  where  the  legislature  has  Co.  v.  Georgia,  92  U.  S.  665,  23  L.  ed. 
authorized  a  merger  of  the  stock  of  757,  the  Supreme  Court  decided  that 
an  existing  corporation  into  another  it  was  not  the  legislative  intent  to 
existing  corporation,  and  united  the  dissolve  the  existing  charters  and 
property  and  management  of  the  create  a  new  one,  and  hence  the  privi- 
two  corporations  into  one.  In  these  leges  and  immunities  of  the  original 
cases  it  has  often  become  important  charters,  which  were  not  subject  to 
to  determine  whether  the  act  au-  the  reserved  right  of  the  State  to 
thorizing  the  consolidation  or  merger  repeal  or  annul,  could  not  be  changed 
created  a  new  corporation  and  dis-  without  the  consent  of  the  corpora- 
solved  the  old  ones,  or  whether  the  tion.  The  conclusions  in  these  cases, 
legislative  intent  was  to  leave  the  as  in  the  other  cases,  were  arrived  at 
original  corporation  still  existing,  by  a  construction  of  the  legislative 
with  its  rights,  privileges  and  im-  act,  construed  by  the  light  of  the 
munities.  This  is  always  a  question  surrounding  circumstances  in  each 
of  intent,  to  be  gathered  from  the  case."  Henderson  v.  Central  Pas- 
language  of  the  act  and  circumstan-  senger  Ry.  Co.,  21  Fed.  358,  364,  per 
ces     surrounding     each     enactment.  Barr,  J. 

Thus,  in  Railroad  Co.  v.  Maine,  96        21  Norfolk  &  W.  R.  R.  Co.  v.  Pen- 

U.  S.  499,  24  L.  ed.  836,  and  Railroad  dleton,  156  U.  S.  667,  39  L.  ed.  574, 

Co.  v.  Georgia,  98  U.  S.  359,  25  L.  ed.  15  Sup.  Ct.  413. 

856 


ALIENATION    AND    FORFEITURE  §   482 

new  corporation  is  chartered,  a  statutory  exemption  from  taxa- 
tion is  not  destroyed.22    So  the  act  of  Minnesota  of  1881,23 
authorizing  the  consolidation  of  several  railroad  companies, 
created  a  new  corporation  upon  which  it  conferred  the  fran- 
chises and  immunities  of  the  constituent  companies  except  an 
exemption  of  stockholders  from  corporate  debts.24    And  when 
two  railroad  corporations,  whose  shares  are  by  a  state  statute 
exempt  from  taxation  in  the  State,  consolidate  themselves  into 
a  new  company  under  a  state  law  which  makes  no  provision  to 
the  contrary,  and  issue  shares  in  the  new  company  in  exchange 
for  shares  in  the  old  company,  the  right  of  exemption  from 
taxation  in  the  State  passes  into  the  new  shares,  and  into  each 
of  them.25    The  following  case  is  important  as  to  the  effect  on 
franchises  and  exemptions  of  the  consolidation  of  railroads  in 
different  States.    The  facts  were  as  follows:  By  an  act  of  the 
legislature  of  Maryland,  passed  in  1831,  and  its  supplement,  a 
corporation  called  the  Delaware  and  Maryland  Railroad  Com- 
pany was  created,  with  authority  to  construct  and  maintain  a 
railroad  from  a  point  on  the  Delaware  and  Maryland  line  to 
some  point  on  the  Susquehanna  River;  and  by  the  nineteenth 
section  of  the  act  it  was  provided  that  the  shares  of  the  capital 
stock  of  the  company  should  be  exempt  from  the  imposition  of 
any  tax  or  burden  by  the  State  assenting  to  the  act,  except 
upon  that  portion  of  the  permanent  and  fixed  works  of  the 
company,  which  might  be  within  the  State  of  Maryland.    By 
an  act  of  the  legislature  of  Delaware,  passed  in   1832,  and 
its  supplement,   another   corporation  was  created,  called  the 
Wilmington  and  Susquehanna  Railroad  Company,  with  au- 
thority to  construct  and  maintain  a  railroad  from  a  point  on 
the  boundary  line  of  Pennsylvania  and  Delaware  to  the  city  of 

22  Powers  v.  Detroit,  Grand  Haven    Minneapolis   &   St.    L.    Ry.    Co.,   73 
&  M.  Ry.  Co.,  201  U.  S.  543,  50  L.  ed.    Minn.  517,  7G  N.  W.  282. 

860,  20  Sup.  Ct.  556.  "Tennessee     v.     Whitworth,     117 

23  Act  March  2,  1881,  chap.  113.        U.  S.  129,  6  Sup.  Ct.  645,  29  L.  ed. 
"Minneapolis  &  St.  L.  Ry.  Co.  v.    830.     Explained   in   Rochester   Ry. 

Gardner,  177  U.  S.  332, 44  L.  ed.  793,   Co.  v.  City  of  Rochester,  205  U.  S. 
20    Sup.    Ct.    656,    aff'g   Gardner    v.    236.      Sit   note   to   this   case   under 

§§479,482. 

857 


§     182  ALIENATION    AND    FORFEITURE 

Wilmington,  and  thence  towards  the  Susquehanna  in  the  di- 
rection of  Baltimore.  In  1835  these  two  companies  were,  under 
acts  of  the  legislatures  of  Maryland  and  Delaware,  consolidated 
into  one  company,  under  the  name  of  the  latter — the  Wilming- 
ton and  Susquehanna  Railroad  Company.  The  act  of  Dela- 
ware, authorizing  the  consolidation  on  her  part,  provided  that 
the  holders  of  the  stocks  of  the  two  companies  should,  when 
consolidated,  hold,  possess  and  enjoy  all  the  property,  rights 
and  privileges,  and  exercise  all  the  power  granted  to,  and 
vested  in,  the  companies,  or  either  of  them,  by  that  law,  or  any 
other  law  or  laws  of  that  State,  or  of  Maryland.  The  act  of 
Maryland,  authorizing  the  consolidation  on  her  part,  contained 
a  similar  provision.  It  was  held,  that  the  purpose  of  the  two 
provisions  was  to  vest  in  the  new  company  the  rights  and 
privileges  which  the  original  companies  had  previously  pos- 
sessed under  their  separate  charters;  the  rights  and  privileges 
in  Maryland  which  the  Maryland  company  had  there  enjoyed, 
and  the  rights  and  privileges  in  Delaware  which  the  Delaware 
company  had  there  enjoyed;  not  to  transfer  to  either  State  and 
enforce  therein  the  legislation  of  the  other.  The  new  company, 
after  the  consolidation,  stood  in  each  State  as  the  original  com- 
pany had  previously  stood  in  that  State,  invested  with  the  same 
rights,  and  subject  to  the  same  liabilities.  The  act  of  consolida- 
tion, so  far  as  Delaware  was  concerned,  had  only  this  effect.26 
Again,  a  railroad  corporation,  formed,  under  an  act  of  the  legis- 
lature, by  the  consolidation  of  existing  companies,  and  "vested 
with  all  the  rights,  privileges,  franchises  and  property  which 
may  have  been  vested  in  either  company  prior  to  the  act  of 
consolidation,"  acquires  no  greater  immunity  from  taxation 
than  they  severally  enjoyed  as  to  the  portions  of  the  road  which 
belonged  to  them  under  their  respective  charters.  Whatever 
property  was  subject  to  taxation  would,  after  the  consolida- 
tion, remain  so.27  So  a  state  statute  granting  to  a  company 
incorporated  by  it  "all  the  rights  and  privileges"  which  had 
been  granted  by  a  previous  statute  of  the  State  to  another 

26  Delaware  Railroad  Tax,  18  Wall.        27  Chesapeake  &  Ohio  R.  R.  Co.  v. 
(85  U.  S.)  206,  21  L.  ed.  888.  Virginia,  94  U.  S.  718,  24  L.  ed.  310. 

858 


ALIENATION    AXD    FORFEITURE  §   482 

corporation,  does  not  confer  upon  the  new  company  an  exemp- 
tion from  taxation  beyond  a  denned  limit  which  was  conferred 
upon  the  other  company  by  the  act  incorporating  it.28  And 
where  an  exemption  from  liability  to  any  greater  tax  than  one- 
half  of  one  per  centum  of  its  net  annual  income  has  been  con- 
ferred upon  C.  by  its  charter,  it  is  not  in  the  power  of  the  legis- 
lature to  impose  an  increased  tax  after  the  consolidation  is 
effected;  and  inasmuch  as  M.,  the  other  consolidating  com- 
pany, possessed  no  such  immunity  under  its  charter,  the  power 
of  the  legislature  to  tax  its  franchises,  property  and  income, 
remained  unimpaired  after  its  consolidation  with  C.29  But  it  is 
also  held  that  the  consolidation  of  a  Missouri  corporation, 
under  the  Missouri  act  of  18G9,30  with  an  Iowa  corporation, 
operated  to  extinguish  the  old  company,  and  to  form  a  new 
one  as  of  the  date  of  the  consolidation,  and  the  provisions 
concerning  exemption  from  taxation  in  the  old  charter  did  not 
pass  to  the  new  company.  Thus  a  railroad  corporation,  char- 
tered in  Missouri  in  1857,  with  a  provision  that  its  property 
should  be  exempt  from  taxation  for  a  period  of  twenty  years 
after  its  completion,  which  took  place  in  1872,  was  consolidated 
with  an  Iowa  corporation  in  1870,  under  a  general  law  of 
Missouri,  and  in  1886  the  consolidated  road  was  sold  under  a 
decree  of  foreclosure  of  a  mortgage  to  purchasers  who  con- 
veyed it  to  an  Iowa  corporation,  and  it  was  held,  that  the  new 
organization  held  the  Missouri  road  subject  to  the  provision  in 
the  constitution  of  Missouri  adopted  in  1865,  that  "no  prop- 
erty, real  or  personal,  shall  be  exempt  from  taxation,  except 
such  as  may  be  used  exclusively  for  public  schools,  and  such 
as  may  belong  to  the  United  States,  to  this  State,  to  counties, 
or  to  municipal  corporations  within  this  State."  31  In  another 
case,  the  Philadelphia,  Wilmington  and  Baltimore  Railroad 
Company  was  formed  by  the  union  of  several  railroad  com- 

28  Phoenix   Fire  &  M.   Ins.   Co.   v.  30  Act  of  March  2,  1869. 

Tennessee,  161  IJ.  S.  174,  16  Sup.  Ct.  "  Keokuk  &  Western  R.  R.  Co.  v. 

471,  40  L.  ed.  660.  Missouri.  152  Q.  S.  301,  14  Sup.  Ct. 

20  Central  Railroad  &  Bkg.  Co.  v.  592,  38  L.  ed.  450. 
Georgia,  92  U.  S.  665,  23  L.  ed.  757. 

850 


§    482  ALIENATION    AND    FORFEITURE 

panies,  which  had  been  previously  chartered  by  Maryland, 
Delaware  and  Pennsylvania,  two  of  which  were  the  Baltimore 
and  Port  Deposit  Railroad  Company,  whose  road  extended 
from  Baltimore  to  the  Susquehanna,  lying  altogether  on  the 
west  side  of  the  river,  and  the  Delaware  and  Maryland  Rail- 
road Company,  whose  road  extended  from  the  Delaware  line  to 
the  Susquehanna,  and  lying  on  the  east  side  of  the  river.'  The 
charter  of  the  Baltimore  and  Port  Deposit  Railroad  Company 
contained  no  exemption  from  taxation.  The  charter  of  the 
Delaware  and  Maryland  Railroad  Company  made  the  shares 
of  stock  therein  personal  estate,  and  exempted  them  from  any 
tax  "except  upon  that  portion  of  the  permanent  and  fixed 
works  which  might  be  in  the  State  of  Maryland."  It  was  held 
that  under  the  Maryland  law  of  1841,  imposing  a  tax  for  state 
purposes  upon  the  real  and  personal  property  in  the  State,  that 
part  of  the  road  of  the  plaintiff  which  belonged  originally  to  the 
Baltimore  and  Port  Deposit  Railroad  Company,  was  liable  to  be 
assessed  in  the  hands  of  the  company  with  which  it  became 
consolidated,  just  as  it  would  have  been  in  the  hands  of  the 
original  company.  Also,  that  there  was  no  reason  why  the 
property  of  a  corporation  should  be  presumed  to  be  exempted 
from  its  share  of  necessary  public  burdens,  there  being  no  ex- 
press exemption.  The  court  also  held,  as  it  had  on  several 
other  occasions  held,  that  the  taxing  power  of  a  State  should 
never  be  presumed  to  be  relinquished,  unless  the  intention  is 
declared  in  clear  and  unambiguous  terms.32  Again,  although 
two  corporations  may  be  so  united  by  one  of  them  holding  the 
stock  and  franchises  of  the  other,  that  the  latter  may  continue 
to  exist  and  also  to  hold  an  exemption  under  legislative  con- 
tract, that  is  not  the  case  where  its  stock  is  exchanged  for  that 
of  the  former  and  by  operation  of  law  it  is  left  without  stock, 
officers,  property  or  franchises,  but  under  such  circumstances  it 
is  dissolved  by  operation  of  the  law  which  brings  this  condition 
into  existence.33    And  where  two  or  more  corporations,  sub- 

32  Philadelphia,  W.  &  B.  R.  R.  Co.  33  Rochester  Ry.  Co.  v.  City  of 
v.  Maryland,  10  How.  (51  U.  S.)  376,  Rochester,  205  U.  S.  236,  51  L.  ed.  — , 
13  L.  ed.  461.  27  Sup.  Ct.  — ,  aff'g  182  N.  Y.  116. 

860 


ALIENATION    AND    FORFEITURE 


§  482 


jected  to  a  special  tax  upon  income  of  their  roads,  with  im- 
munity from  other  taxation — the  amount  of  such  special  tax 
being  dependent  upon  reports  to  be  made  and  information 
communicated  by  their  directors  and  other  officers — are  con- 
solidated into  a  new  corporation,  with  different  directors  and 
other  officers,  who  are  neither  bound  nor  able  to  make  the 
reports  and  give  the  information  required  of  the  original  com- 
panies, the  new  corporation  thus  created  is  not  entitled  to  the 
immunity  of  the  original  companies  from  general  taxation.34 

Upon  this  point  the  court,  per  road,  as  held  in  43  State  Reporter, 
Moody,  J.,  said:  "It  is  insisted  that  651,  affirmed  133  N.  Y.  690.  An  ex- 
this  is  not  a  case  of  transfer  of  an  animation,  however,  of  the  statute 
exemption;  that  the  rules  governing  under  which  the  union  of  the  two 
transfer  are  not  applicable  here;  that  corporations  was  made,  and  the 
the  Brighton  Railroad  has  not  ceased  transactions  by  which  the  union  was 
to  exist  as  a  corporation;  that  it  has  accomplished,  shows  that  the  Brigh- 
been  merely  joined  by  merger  with  ton  Railroad  has  ceased  to  exist  as  a 
the  Rochester  Railroad,  which  con-  corporation.  The  Rochester  Rail- 
trols  it  by  stock  holdings,  and  oper-  road  first  took  a  lease  of  the  Brighton 
ates  it  by  virtue  of  its  franchises;  and  Railroad,  apparently  for  the  purpose 
that,  therefore,  the  Rochester  Rail-  of  bringing  itself  within  the  provisions 
road  may  claim  and  enjoy  the  exemp-  of  the  act  of  1879.  Then  all  the  stock 
tion  of  the  Brighton  Railroad  in  its  of  the  latter  corporation  was  ac- 
behalf  in  respect  of  its  property.  In  quired  by  exchange  of  shares  of  stock 
support  of  this  view  counsel  cite  of  the  former  corporation.  Then  a 
Tomlinson  v.  Branch,  15  Wall.  (82  certificate  of  the  transfer  of  stock 
U.  S.)  460,  21  L.  ed.  189;  Central  was  filed  with  the  Secretary  of  State. 
Railroad  v.  Georgia,  92  U.  S.  665,  23  Thereupon,  by  operation  of  the  law, 
L.  ed.  757;  Tennessee  v.  Whitworth,  the  'estate,  property,  rights,  privi- 
117  U.  S.  139,  6  Sup.  Ct.  649,  29  leges  and  franchises'  of  the  Brighton 
L.  ed.  833.  These  cases  hold  that  Railroad  vested  in  the  Rochester 
where  corporations  are  united  in  such  Railroad,  to  be  thereafter  controlled 
manner  that  one  continues  to  exist  as  by  the  Rochester  Railroad  in  its  own 
a  corporation,  owning  and  operating  corporate  name.  The  law  does  not 
its  property,  by  virtue  of  its  own  expressly  dissolve  the  selling  corpora- 
charter,  the  corporation  thus  con-  tion,  but  it  leaves  it  without  stock, 
tinuing'  to  exist  still  holds  its  im-  officers,  property,  or  franchise.  A 
munities  and  exemptions  in  respect  corporation  without  shareholders, 
of  the  property  to  which  they  apply,  without  officers  to  manage  its  busi- 
But  the  cases  have  no  application  ness,  without  property  with  which  to 
here.    It  may  well  be  that  a  proceed-  do  business,  is  dissolve!  by  theopera- 


ing  for  condemnation  of  property, 
in    by    the    Brighton    Railroad, 
would  not  abate  by  reason  of  its  con- 
solidation with  the  Rochester   Etail- 


tion  of  the  law  which  brings  this  con- 
dition into  existence."    Id.,  255,  256. 
34  Railroad  Co.  v.  Maine,  96  U.  S. 
499, 24  L.  ed. 836. 

861 


§    483  ALIENATION    AND    FORFEITURE 

§  483.  Exemption  or  Immunity  from  Taxation,  etc. — 
Rule  as  to  Effect  of  Reservation  of  Power  to  Alter,  Amend 
or  Repeal.35 — Whenever  a  consolidated  corporation  becomes, 
by  the  terms  and  intent  of  the  statute  under  which  its  con- 
solidation has  been  effected,  a  new  company  subject  to  exist- 
ing constitutions  and  legislative  enactments  reserving  the  right 
to  alter,  amend  or  repeal  charters  or  grants  of  franchises,  an 
irrepealable  contract  right  to  an  exemption  from  taxation  or 
governmental  regulation  will  not  pass  to  it  as  successor.  The 
rule  is  stated  in  a  case  in  the  Federal  Supreme  Court  as  follows : 
"It  is,  moreover,  conclusively  determined  that  where  the  con- 
stitution of  a  State  reserves  the  power  to  repeal,  alter  or 
amend  a  charter,  such  provision  is  applicable  to  the  charter  of  a 
consolidated  corporation  where,  as  the  result  of  the  consolida- 
tion, a  new  corporation  takes  being,  new  stock  is  provided  for, 
new  franchises  are  conferred  and  new  officers  appointed.  In 
other  words,  that  where  a  legislature  is  inhibited  by  the  con- 
stitution from  making  an  irrepealable  charter  it  cannot  create 
a  new  contract  and  bring  into  being  a  new  corporation,  and 
yet  by  the  charter  of  such  corporation  give  rise  to  the  irrepeal- 
able contract  which  the  constitution  absolutely  prohibits.  To 
state  the  doctrine  in  another  form,  it  is  thus:  That  where  a 
new  corporation  is  chartered,  subject  to  a  constitution  which 
forbids  the  granting  of  an  irrepealable  right,  such  new  corpo- 
ration cannot  become  endowed  by  the  effect  of  a  legislative 
contract  with  an  irrepealable  right  forbidden  by  the  constitu- 
tion. If  one  of  the  constituent  elements  of  the  corporation 
possessed,  prior  to  the  formation  of  the  new  corporation,  such 
right,  and  under  the  assumption  that  the  right  itself  passed  to 
the  new  body,  it  loses  its  irrepealable  character,  because  the  new 
corporation  is  subject  to  the  very  law  of  its  being  to  the  pro- 
vision of  the  constitution  forbidding  irrepealable  grants.  The 
doctrine  as  just  stated  has  been  so  frequently  declared  by  this 
court  that  it  is  no  longer  open  to  discussion."  36 

35  See  §§301-340,  457-461,  herein.    47  L.  ed.   167,  23  Sup.  Ct.  60,  per 

"Northern    Central    Ry.    Co.    v.    White,    J.,    adding    the    following: 

Maryland,  187  U.  S.  258,  267,  268,    "The  whole  subject  has  been  so  re- 

862 


ALIENATION   AND   FORFEITURE  §    484 

§  484.  Same  Subject— Illustrative  Decisions.— In  the  case 
quoted  from  in  the  last  preceding  section  it  is  held  that  when 
a  Maryland  corporation,  chartered  in  1827,  and  possessing 
certain  immunities  from  taxation,  which  under  the  then  con- 
stitution might  have  been  irrepealable,  becomes  merged  with 
other  corporations  in  an  entirely  new  corporation  possessing 
new  rights  and  franchises,  created  after  the  constitution  of 
1850,  under  which  the  legislature  had  power  to  alter  and  repeal 
charters  of,  and  laws  creating,  corporations,  the  right  of  ex- 
emption, if  it  ever  passed  to  the  new  corporation,  was  subject 
to  the  right  of  repeal,  and  hence  was  not  protected  from  repeal 
by  the  contract  clause  of  the  Federal  Constitution.  It  was  also 
decided  that  an  act  of  the  legislature  compromising  litigation 
between  the  State  and  such  new  corporation  arising  from  the 
claim  of  the  latter  that  it  was  exempt  from  taxation  under  the 
immunities  at  one  time  possessed  by  one  of  its  constituent  cor- 
porations, and  fixing  a  rate  of  taxation  to  be  paid  annually 
thereafter  by  the  new  corporation,  could  not  be  regarded  as  a 
legislative  contract  granting  an  irrepealable  right  forbidden  by 
the  then  existing  constitution  of  the  State.  Therefore,  if  the 
legislature  subsequently  passed  another  act  fixing  a  higher  rate 
of  taxation,  and  the  highest  court  of  the  State  has  decided  that 
such  act  repeals  the  former  act  and  subjects  the  corporation  to 
the  higher  rate  of  taxation,  the  latter  act  is  not  bad  as  impairing 
the  obligation  of  contracts  within  the  purview  of  the  Constitu- 
tion of  the  United  States,  as  the  compromise,  when  made,  was 
subject  to  the  right  to  repeal,  reserved  by  the  constitution  of 
the  State  at  that  time.37  In  Covington  &  Lexington  Turnpike 
R.  Co.  v.  Sandford,38  the  legislature  of  Kentucky,  by  an  act 
passed  in  1834,  created  the  Covington  &  Lexington  Turnpike 
Road  Company  with  authority  to  construct  a  turnpike  from 
Covington  to  Lexington.    One  section  prescribed  rates  of  tolls 

cently  fully  reviewed  and  restated  it  37  Northern  Cent.  Ry.  Co.  v.  Mary- 
is  sufficient  to  refer  to  that  ease:  land,  187  U.  S.  258,  47  L.  ed.  167, 23 
Yazoo  &  Mississippi  Valley  Ry.  Co.  v.  Sup.  Ct.  60. 

Adams,   180  U.   S.   1,   17  et  seq.,  21  38  164  U.  S.  578,  41  L.  ed.  5G0,  17 

Sup.  Ct.  240,  45  L.  ed.  395,  and  au-  Sup.  Ct.  198. 
thorities  there  cited." 

863 


§   484  ALIENATION    AND    FORFEITURE 

which  might  be  exacted;  another  provided:  "That  if  at  the 
expiration  of  five  years  after  the  said  road  had  been  com- 
pleted, it  shall  appear  that  the  annual  net  dividends  for  the 
two  years  next  preceding  of  said  company,  upon  the  capital 
stock  expended  upon  said  road  and  its  repairs,  shall  have 
exceeded  the  average  of  fourteen  per  cent  per  annum  thereof, 
then  and  in  that  case,  the  legislature  reserves  to  itself  the  right, 
upon  the  fact  being  made  known,  to  reduce  the  rates  of  toll,  so 
that  it  shall  give  that  amount  of  dividends  per  annum,  and  no 
more."  In  1851  two  new  corporations  were  created  out  of  the 
one  created  by  the  act  of  1834,  one  to  own  and  control  a  part  of 
the  road,  and  the  other  the  remaining  part,  and  each  of  the 
new  companies  was  to  possess  and  retain  "all  the  powers, 
rights  and  capacities  in  severalty  granted  by  the  act  of  in- 
corporation, and  the  amendments  thereto,  to  the  original  com- 
pany." In  1865  an  act  was  passed  reducing  the  tolls  to  be 
collected  on  the  Covington  and  Lexington  turnpike.  In  1890 
another  act  was  passed  largely  reducing  still  further  the  tolls 
which  might  be  exacted.  It  was  held:  (1)  That  the  new  cor- 
porations created  out  of  the  old  one  did  not  acquire  the  im- 
munity and  exemption  granted  by  the  act  of  1834  to  the 
original  company  from  legislative  control  as  to  the  extent  of 
dividends  it  might  earn;  (2)  that  the  statute  of  1856,39  reserving 
to  the  legislature  the  power  to  amend  or  repeal  at  will  charters 
granted  by  it,  had  no  application  to  charters  granted  prior  to 
that  date ;  (3)  that  an  exemption  of  immunity  from  taxation  is 
never  sustained  unless  it  has  been  given  in  language  clearly  and 
unmistakably  evincing  a  purpose  to  grant  such  immunity  or 
exemption.  In  Hoge  v.  Railroad  Co.40  it  appeared  that  in 
1856,  the  legislature  of  South  Carolina  incorporated  the  Air 
Line  Railroad  Company,  with  power  to  construct  a  road  be- 
tween certain  points,  and  to  equip,  use  and  enjoy  the  same, 
with  all  the  rights,  privileges  and  immunities,  granted  to  a  cer- 
tain other  company  which  had  been  incorporated  in  1845  by 
an  act  exempting  it  from  taxation  for  the  period  of  thirty-six 

39  Kentucky  Act  of  February   14,        <°  99  U.  S.  348,  25  L.  ed.  303. 
1856. 

864 


ALIENATION    AND    FORFEITURE  §    484 

years,  and  from  the  operation  of  the  provisions  of  the  act  of 
1841. 41  The  latter  act  declared  "that  it  shall  become  part  of 
the  charter  of  every  corporation  which  shall,  at  the  present  or 
any  succeeding  session  of  the  General  Assembly,  receive  a  grant 
of  a  charter,  or  any  renewal,  amendment,  or  modification 
thereof  (unless  the  act  granting  such  charter,  renewal,  amend- 
ment, or  modification  shall,  in  express  terms  except  it),  that 
every  charter  of  incorporation  granted,  renewed,  or  modified  as 
aforesaid  shall  at  all  times  remain  subject  to  amendment, 
alteration,  or  repeal  by  the  legislative  authority."  The  act  of 
1856  also  empowered  the  company  to  unite  with  any  other,  and 
consolidate  their  management,  but  contained  no  clause  except- 
ing, in  express  terms,  the  charter  from  the  operation  of  the  act 
of  1841.  An  amendment,  passed  in  1868,  authorized  it  to 
adopt  another  corporate  name,  and  it  was  consolidated  with  a 
corporation  of  Georgia  under  the  name  of  the  Atlanta  and 
Richmond  Air  Line  Railway  Company.  The  constitution  of 
South  Carolina  of  1868  having  required  that  the  property  of 
corporations  then  existing  or  thereafter  created  should  be  sub- 
ject to  taxation,  the  legislature  imposed  a  tax  on  such  prop- 
erty. A  stockholder  of  the  latter  company,  alleging  that  it  had 
acquired  immunity  from  taxation  for  the  same  period  as  the 
company  chartered  in  1845,  and  that  such  immunity  was  be- 
yond legislative  control,  brought  suit  to  enjoin  the  collection 
of  the  tax.  It  was  held:  (1)  That,  as  the  act  of  1856  granting 
the  charter  did  not  expressly  exempt  it  from  the  provisions  of 
the  act  of  1841,  they  were  applicable  to  it ;  (2)  that  the  charter 
must  be  read  as  if  it  declared  that  the  capital  stock  of  the  com- 
pany and  its  real  estate  should  be  exempt  from  taxation  for 
thirty-six  vein--,  unless  the  legislature  should  in  the  meantime 
withdraw  the  exemption;  (3)  that  if  an  exemption  from  future 
legislative  control  had  been  originally  acquired  by  the  com- 
pany, it  ceased  when  the  amendment  to  the  charter  was  ob- 
tained in  L868.  In  Railroad  Company  v.  Georgia  A2  a  provision 
of  the  statutory  code  of  Georgia43  enacted  that  private  corpo- 

41  Art  of  December  17,  1841.  "  In  effect  January  1,  181 

4298T\  S  359,25  L.  ed.  185. 

55  865 


§    484  ALIENATION    AND    FORFEITURE 

rations  were  subject  to  be  changed,  modified  or  destroyed  at 
the  will  of  the  creator,  except  so  far  as  the  law  prohibited  it, 
and  that  in  all  cases  of  private  charters  thereafter  granted,  the 
State  reserved  the  right  to  withdraw  the  franchise,  unless  such 
right  was  expressly  negatived  in  the  charter.  Two  railroad 
companies  created  prior  to  that  date,  each  of  which  enjoyed 
by  its  charter  a  limited  exemption  from  taxation,  were  con- 
solidated by  virtue  of  an  act  of  the  legislature  44  which  au- 
thorized a  consolidation  of  their  stocks,  conferred  upon  the 
consolidated  company  full  corporate  powers,  and  continued  to 
it  the  franchises,  privileges  and  immunities  which  the  com- 
panies had  held  by  their  original  charters.  It  was  decided  that 
by  the  consolidation  the  original  companies  were  dissolved,  and 
a  new  corporation  was  created,  which  became  subject  to  that 
provision  of  the  Code.  It  was  also  held  that  a  subsequent 
legislative  act,  taxing  the  property  of  such  new  corporation  as 
other  property  in  the  State  was  taxed,  was  not  prohibited  by 
that  provision  of  the  Constitution  of  the  United  States  which 
declares  that  no  State  shall  pass  a  law  impairing  the  obligation 
of  contracts;  and  that  the  judgment  of  the  highest  court  of  a 
State,  that  a  statute  has  been  enacted  in  accordance  with  the 
requirements  of  the  state  constitution,  was  conclusive  upon 
the  Federal  Supreme  Court,  and  would,  therefore,  not  be  re- 
viewed. And  in  Railroad  Company  v.  Maine,45  it  is  held  that 
the  statute  of  Maine  of  1856,  authorizing  two  or  more  existing 
corporations  to  consolidate  and  form  a  new  corporation,  was 
an  act  of  incorporation  of  the  new  company;  and  the  latter, 
upon  its  formation,  became  at  once  subject  to  the  provisions  of 
the  general  law  of  1831,  which  declared  that  any  act  of  incorpo- 
ration subsequently  passed  should  at  all  times  thereafter  "be 
liable  to  be  amended,  altered  or  repealed  at  the  pleasure  of  the 
legislature,  in  the  same  manner  as  if  express  provision  to  that 
effect  were  therein  contained,  unless  there  shall  have  been  in- 
serted in  such  act  of  incorporation  an  express  limitation  or 
provision  to  the  contrary."  Therefore,  so  long  as  this  pro- 
vision remained  unrepealed,  subsequent  legislation  not  re- 
44  Act  of  April  18,  1863.  45  96  U.  S.  499,  24  L.  ed.  836. 

866 


ALIENATION    AND    FORFEITURE  §    485 

pugnant  to  it  was  controlled  by  it,  and  should  be  construed 
and  enforced  in  connection  with  it;  and  there  being  no  limita- 
tion, in  the  act  of  1851,  upon  the  power  of  amendment,  altera- 
tion and  repeal,  the  State,  by  the  reservation  in  the  law  of 
1831,  which  is  to  be  considered  as  embodied  in  that  act,  re- 
tained the  power  to  alter  it  in  all  particulars  constituting  the 
grant  of  corporate  rights,  privileges  and  immunities  to  the 
new  company  formed  under  it,  thereby  keeping  under  control 
of  the  State  the  existence  of  the  corporation,  and  its  franchises 
and  immunities  derived  directly  from  said  State;  although 
rights  and  interests  acquired  by  the  company  and  not  con- 
stituting a  part  of  the  contract  of  incorporation  were  held  to 
stand  upon  a  different  footing. 

§  485.  Forfeiture  of  Franchise— Legislative  Power  as  to. — 

Although  a  franchise  must  have  its  source  in  or  emanate  from 
the  sovereign  power,  and  that  power  alone  can  grant  it  and 
make  possible  its  exercise,46  still  when  it,  or  the  charter  which 
evidences  it,47  is  once  lawfully  granted,  either  under  a  general 
or  special  act  and  accepted,  it  becomes  surrounded  by  con- 
stitutional guarantees  of  protection  which  no  legislative  body 
can  set  aside  and  ignore  by  declaring  a  forfeiture  or  by  other- 
wise unconstitutionally  destroying  the  franchises,  privileges  or 
charter  rights  of  a  lawfully  existing  corporation.  If,  however, 
there  is  reserved  by  the  State  a  right  to  alter,  amend  or  repeal 
a  charter  or  statutory  rights,  such  reservation  enters  into  and 
becomes  a  part  of  the  contract  between  the  State  and  a  grantor, 
and  the  corporation  or  grantee,  and  the  power  of  the  State 
thereunder  may  be  exercised  subject  to  certain  limitations.48 
The  legislative  power  to  enact  any  statute  which  repeals, 
revokes,  forfeits,  or  annuls  charters  or  statutory  grants  of 
rights,  privileges  or  franchises  to  a  corporation  is,  therefore,  re- 
stricted. So  that  any  attempt  of  a  state  Legislature  or  of  the 
council  of  a  municipality  to  take  away,  or  change  the  ownership 
of  a  franchise,  or  to  confiscate  the  same  or  to  forfeit  or  take 

4«  See  §§  122,  132  et  seq.,  herein.  «  Sec  §§  301-340,  hem,,. 

47  See  §§41-46,  herein. 

867 


§    485  ALIENATION    AND    FORFEITURE 

forcible  possession  thereof  or  in  effect  to  condemn  the  com- 
pany's property,  may  constitute  a  taking  of  property  without 
due  process  of  law.49  But  it  is  held  by  the  Federal  Supreme 
Court  that  where  a  grant  of  land  and  connected  franchises  is 
made  to  a  corporation  for  the  construction  of  a  railroad  by  a 
statute,  which  provides  for  their  forfeiture  upon  failure  to  per- 
form the  work  within  a  prescribed  time,  the  forfeiture  may  be 
declared  by  legislative  act  without  judicial  proceedings  to 
ascertain  and  determine  the  failure  of  the  grantee;  and  that 
public  assertion  by  legislative  act  of  the  ownership  of  the  State 
after  the  default  of  the  grantee— such  as  an  act  resuming  con- 
trol of  the  road  and  franchises,  and  appropriating  them  to 
particular  uses,  or  granting  them  to  another  corporation  to 
perform  the  work — is  equally  effective  and  operative.  This 
case,  it  will  be  observed,  was  one  of  condition  precedent.50  It  is 
likewise  decided  that  where  an  ordinance  granting  a  franchise 
to  a  street  railway  company  reserves  an  option  to  forfeit,  if  the 
company  defaults  in  paying  certain  expenses  for  street  paving, 
the  city  has  a  right  to  declare  such  forfeiture  in  case  of  such 
default.51 

49  Iron  Mountain  R.  Co.  v.  Mem-  530.  See  Atlantic  &  Pacific  R.  Co. 
phis,  96  Fed.  113,  37  C.  C.  A.  410;  v.  Mingue,  165  U.  S.  413,  433,  41  L. 
People  v.  O'Brien,  111  N.  Y.  1,  19  ed.  770,  17  Sup.  Ct.  348;  Schlesinger 
N  Y  St.  Rep.  173,  18  N.  E.  692,  7  v.  Kansas  City  &  S.  Ry.  Co.,  152 
Am.  St.  Rep.  684,  2  L.  R.  A.  255.  U.  S.  444,  453,  14  Sup.  Ct.  647,  38 
Examine  Farmers'  Loan  &  Tr.  Co.  v.  L.  ed.  507;  Bybee  v.  Oregon  &  Cali- 
Galesburg,  133  U.  S.  156,  34  L.  ed.  fornia  Ry.  Co.,  139  U.  S.  663,  675,  11 
573, 10  Sup.  Ct. —;  Nebraska  Teleph.  Sup.  Ct.  641,  35  L.  ed.  305;  Mc- 
Co.  v.  City  of  Fremont  (Neb.),  99  Michen  v.  United  States,  97  U.  S. 
N.  W.  811;  United  Electric  Co.  v.  204,  218,  24  L.  ed.  947;  Oakland  R. 
City  of  Bayonne  (N.  J.,  1906),  63  Co.  v.  Oakland,  etc.,  R.  Co.,  45  Cal. 
Atl.  996;  Phillipsburg  Electric  Light-  365.  Examine  Seaboard  Teleg.  & 
ing,  H.  &  P.  Co.  v.  Town  of  Phillips-  Teleph.  Co.  v.  Kearney,  74  N.  Y. 
burg,  66  N.  J.  L.  505,  49  Atl.  445,  8  Supp.  15,  68  App.  Div.  283;  Dusen- 
Am.  Elec.  Cas.  149;  Seaboard  Teleg.  berry  v.  New  York,  W.  &  C.  Traction 
&  Teleph.  Co.  v.  Kearney,  74  N.  Y.  Co.,  61  N.  Y.  Supp.  420.  Compare 
Supp.  15,  68  App.  Div.  283;  Archbald  Utah,  N.  &  C.  R.  Co.  v.  Utah  &  C. 
v.   Carbondale  Traction  Co.,  3   Pa.  Ry.  Co.,  110  Fed.  879. 

Dist.  R.  751,  15  Pa.  Co.  Ct.  159.  As   to    condition   subsequent   and 

50  Farnsworth  v.  Minnesota  &  Pa-  ipso  facto,  forfeiture  see  §  486,  herein, 
cific  Rd.  Co.,  92  U.  S.  49,  23  L.  ed.        51  Union  St.  Ry.  Co.  v.  Snow,  113 

868 


ALIENATION    AND    FORFEITURE  §    486 

§  486.  Forfeiture  of  Franchise— Judicial  Determination  of 
— Quo  Warranto —State  Officials— Ipso  Facto  Forfeiture. — 

Although  an  exception  may  exist  in  that  class  of  cases  which 
rest  upon  an  expressed  condition  for  forfeiture  in  the  grant,  as 
appears  in  the  Federal  decision  given  in  the  last  preceding  sec- 
tion, nevertheless  it  seems  to  be  a  generally  conceded  rule  that 
the  question,  whether  or  not  a  corporation  has  committed  or 
omitted  any  act  which  should  result  in  a  forfeiture  of  its  fran- 
chise or  charter,  is  one  which,  in  the  absence  of  a  reserved 
legislative  power  to  repeal,  alter  or  amend,  is  a  matter  for 
judicial  cognizance,  and  can  only  be  inquired  into  by  a  pro- 
ceeding consistent  with  the  law  and  appropriate  for  that  pur- 
pose, instituted  by  the  proper  authorities.  In  other  words,  the 
default  and  forfeiture  must  be  judicially  determined,  and  the 
legislature  excluded  from  the  exercise  of  judicial  junctions.52 
The  State  has,  however,  the  right  to  determine  through  its 
courts  whether  the  conditions  upon  which  a  charter  was  granted 
to  a  corporation  have  been  complied  with;53  and  a  proper 

Mich.  694,  4  Det.  Leg.  N.  455,  71  Line  R.  Co.  v.  Olive,  142  N.  C.  257, 

N.  W.  1073.  55  S.  E.  263. 

"Alabama:    Block    v.    O'Connor  South    Carolina:    State,   Spartan- 

Min.  &  Mfg.  Co.,  129  Ala.  528,  29  So.  burg,  v.  Spartanburg,  C.  &  G.  R.  Co., 

925,  Code,  §  3417.  51  S.  C.  129,  28  S.  E.  145  (so  unless 

California:   Los   Angeles  Holiness  contrary  legislative  intent  clearly  ap- 

Band  v.  Spires,  126  Cal.  541,  58  Pac.  parent ). 

1049;  Areata  v.  Areata  &  M.  R.  Co.,  Texas:  Rippstein  v.  Haynes  Me- 

92  Cal.  639,  28  Pac.  676.  dina  Valley  Ry.  Co.  (Tex.  Civ.  App.), 

Illinois;     Lincoln     Park    Chapter,  85  S.  W.  314. 

etc.,  v.  Swatek,  204  111.  228,  68  N.  E.  See  Oliphant  Sewage  Drainage  Co. 

429,  aff'g  105  111.  App.  604.  v.   Borough   of  Oliphant   (Pa.   Com. 

Maine:   rimer  v.   Lime  Rock  R.  PI.),  5  Lack.  Leg.  N.  346. 

Co.,9X  Me.  579,57  Ail.  1001.  M  New  Orleans  Debenture  Redemp- 

Nebraska:   Nebraska  Teleph.   Co.  tion  Co.  v.  Louisiana,  180  U.  S.  320, 

v.  City  of  Fremont  (Neb.),  99  X.  W.  15  L.  ed.  550,  21  Sup.  Ct.       ;  Utah, 

811.  N.  &  C.  i:.  Co.  v.  Utah  *  C.  Ry.  Co., 

New   York:     Brooklyn    Elevated  L10  Fed.  879. 

R.  Co.,  In  re,  125  N.  Y.  434,  35  N.  Y.  Equity   jurisdiction   /«   <\<cr<c  for- 

St.  Rep.  451,  26  N.  E.  474,  9  Ry.  &  feiture.     See  United  States  v.  Union 

Corp.  I..  J.  264,  46  Am.  A-  Eng.  R.  Pac.  Ry.  Co.,  98  U.  S  569,  25  L.  ed. 

251,aff'g32N.  Y.St.  Rep.  1065,  143;   Coquard    v.    National    Linseed 

11  N.  Y.  Supp.  161.  Oil  C,,..  171   111.  480,  49  N.  E.  563, 

North    Carolina:     Seaboard     Air  aff'g  67  111.  App.  20  (has  no  general 

869 


486 


ALIENATION    AND    FORFEITURE 


remedy  is  by  quo  warranto,  or  an  action  in  the  nature  of  quo 
warranto  at  the  suit  of  the  State  to  test  the  right  of  a  corpora- 
tion to  exercise  its  franchises,  or  to  declare  them  forfeited.54 
A  state  banking  board  may  also  be  empowered  by  the  State  to 
revoke  a  certificate  of  an  investment  company  where  sufficient 
grounds  exist  therefor  under  the  statute.55  But  it  is  held  in 
Texas  that  the  Secretary  of  State  has  no  power  to  forfeit  a 
franchise  under  the  statute  of  1897. 56  A  non-performance  of  a 
condition  subsequent  does  not  ipso  facto  forfeit  the  existence  or 
rights  of  a  corporation,  but  only  constitutes  a  ground  of  for- 
feiture through  proper  judicial  proceedings.57 


power  to);  Seymour  Water  Co.  v. 
City  of  Seymour  (Ind.),  70  N.  E.  514 
(when  will  not  be  decreed);  Harrigan 
v.  Gilchrist,  121  Wis.  127,  99  N.  W. 
909  (when  will  not;  but  within  ju- 
dicial power  to  do  so). 

54  New  Orleans  Waterworks  Co.  v. 
Louisiana,  185  U.  S.  336,  22  Sup.  Ct. 
691,  46  L.  ed.  936;  United  States  v. 
Union  Pac.  Ry.  Co.,  98  U.  S.  569, 
25  L.  ed.  143;  Utah,  N.  &  C.  R. 
Co.  v.  Utah  &  C.  Ry.  Co.,  110  Fed. 
879;  People  v.  Chicago  Telephone  Co., 
220  111.  238,  77  N.  E.  245;  People, 
Mcllhany,  v.  Chicago  Live  Stock 
Exch.,  170  111.  556,  48  N.  E.  1062,  39 
L.  R.  A.  373,  7  Am.  &  Eng.  Corp. 
Cas.  (N.  S.)  341;  Ulmer  v.  Lime  Rock 
R.  Co.,  98  Me.  579,  57  Atl.  1001. 

The  ancient  writ  of  quo  warranto 
is  the  proper  remedy  to  seize  into 
the  hands  of  the  State  the  franchises 
of  a  corporation  which  has  for- 
feited them  by  misuser  or  nonuser. 
State  v.  Real  Estate  Bank,  5  Pike 
(5  Ark.),  595,  41  Am.  Dec.  509. 

55  State  v.  Northwestern  Trust  Co. 
(Neb.),  101  N.  W.  14,  under  Laws 
1903,  p.  275,  c.  29,  §  9. 

56  Rippstein  v.  Haynes  Medina 
Valley  Ry.  Co.  (Tex.  Civ.  App.),  85 
S.  W.  314,  under  Sayles'  Ann.  Civ. 
Stat.  1897,  art,  5243i. 

870 


Private  person;  right  of  to  insist 
on  forfeiture.  See  People,  Byars,  v. 
Grand  River  Bridge  Co.  (Colo.),  21 
Pac.  898,  2  Denver  Leg.  N.  225 
(when  cannot;  when  can);  Brooklyn 
Elev.  R.  Co.,  In  re,  125  N.  Y.  434,  35 
N.  Y.  St.  R.  451,  26  N.  E.  474,  9  Ry. 
&  Corp.  L.  J.  264,  46  Am.  &  Eng. 
R.  Cas.  251,  aff'g  32  N.  Y.  St.  Rep. 
1065,  11  N.  Y.  Supp.  161;  Attorney 
Genl.  v.  Continental  Life  Ins.  Co., 
53  How.  (N.  Y.)  16  (attorney  gen- 
eral's power  exclusive  under  N.  Y. 
Laws  1853,  ch.  463);  Dern  v.  Salt 
Lake  City  R.  Co.,  19  Utah,  46,  56 
Pac.  556  (when  cannot). 

57  Utah,  N.  &  C.  R.  Co.  v.  Utah  & 
C.  Ry.  Co.,  110  Fed.  879. 

Examine  as  to  ipso  facto  forfeiture 
or  dissolution  the  following  cases: 

New  York;  Coney  Island,  Ft. 
H.  &  B.  R.  Co.  v.  Kennedy,  44  N.  Y. 
Supp.  825,  15  App.  Div.  588  (when 
failure  to  construct  street  railway  in 
certain  time  not  ipso  facto  a  for- 
feiture). 

Pennsylvania;  West  Manayunk 
Gas  Light  Co.  v.  New  Gas  Light  Co., 
21  Pa.  Co.  Ct.  369  (franchises  revert 
ipso  facto  for  failure  to  construct 
within  certain  time,  under  Pa.  Act 
April  29,  1874,  as  ara'd  by  Pa.  Act 
April  17,  1876,  P.  L.  37). 


ALIENATION    AND    FORFEITURE  §§   487,    488 

§  487.  Courts  Reluctant  to  Adjudge  Forfeitures  and  Will 
Proceed  with  Caution. — Because  of  their  reluctance  in  ad- 
judging a  forfeiture  58  the  courts  will  proceed  with  extreme 
caution  in  proceedings  which  are  intended  to  effect  a  forfeiture 
of  corporate  franchises,  and  such  forfeiture  will  not  be  allowed, 
except  under  express  limitation,  or  for  a  plain  abuse  of  power 
by  which  the  corporation  fails  to  fulfill  the  design  and  purpose 
of  its  organization.59 

§  488.  Forfeiture  of  Franchise — Abuse,  Misuser  or  Non- 
user  of  Corporate  Powers. — A  grant  of  corporate  franchises 
is  necessarily  subject  to  the  condition  that  the  privileges  and 
franchises  conferred  shall  not  be  abused;  or  employed  to  de- 
feat the  ends  for  which  they  were  conferred;  and  that  when 
abused  or  misemployed,  they  may  be  withdrawn  by  proceed- 
ings consistent  with  law.60  It  is  the  neglect  of  corporate  duties, 
or  the  abuse  of  them ;  or,  in  other  words,  the  failure  to  live  up 
to  the  fundamental  law  of  their  being,  which  the  law  regards  as 
sufficient  cause  for  extinguishing  the  existence  of  corpora- 
tions;61 and  where  the  corporation  does  not  fulfill  the  pur- 
poses for  which  it  was  organized  or  there  is  an  abuse  or  a 
misuser,  or  non-user  of  corporate  powers,  or  the  express  pro- 
visions of  the  law  from  which  those  powers  are  derived  are 

South    Carolina:   State,   Spartan-  67  N.  W.  1138  (not  ipso  facto  dis- 

burg,  v.  Spartanburg,  C.  &  G.  R.  Co.,  solved  by  suspension  of  business  for 

51  S.  C.  129,  28  S.  E.  145  (when  non-  one  year  or  by  non-user), 

user  or  misuser  does  not  ipso  facto  58  Topeka  v.  Topeka  Water  Co.,  58 

dissolve).  Kan.  349,  49  Pac.  79. 

Texas:  Houston  v.  Houston  B.  59  Commonwealth  v.  Monongahela 
&  M.  P.  R.  Co.,  81  Tex.  581,  19  S.  Bridge  Co.,  216  Pa.  108,  116,  64  Atl. 
W.  786  (statute  self-executing;  fail-  909  (quoting  from  High  on  l.\ imm- 
ure to  construct  and  operate  in  spec-  dinary  Leg,  Rem.,  §649).  In  this 
ified  time);  Bywatere  v.  Paris  &  G.  case  all  the  shares  in  a  bridge  com- 
W.  R.  Co.,  7:'>  Tex.  624,  11  S.  W.  pany  were  held  by  a  municipality. 
856  (judicial  proceedings  unnece  sary  ""Chicago  Life  Ins.  Co.  v.  Needles, 
where  construction  nol  begun  within  113  I'.  S.  574,  5  Sup.  Ct.  681,  28  L. 
time  limit  of  Rev.  Stat.,  art.  4278).  ed.  lost. 

Wisconsin:  Attorney  Genl.  v.  Su-  C1  State   v.   Real    Estate    Bank,  5 

perior  A-  St.  C.  R.  Co.,  93  Wi     604,  Pike  (5  Ark.),  595,  41  Am.  Dec.  509. 

871 


§  489 


ALIENATION    AND    FORFEITURE 


violated  its  franchises  may  be  forfeited  and  the  State  has  power 
to  so  forfeit  through  the  courts.62 


§  489.  Nature  and  Extent  of  Misuser  or  Non-user  Justify- 
ing Forfeiture. — As  to  misuser,  it  must  appear  that  there  has 


62  United  States;  New  Orleans 
Waterworks  Co.  v.  Louisiana,  185 
U.  S.  336,  46  L.  ed.  936,  22  Sup.  Ct. 
691;  Given  v.  Wright,  117  U.  S.  648, 
656,  6  Sup.  Ct.  907,  29  L.  ed.  1021 
("non-user  is  one  of  the  common 
grounds");  Illinois  Trust  &  Savings 
Bank  v.  Doud,  105  Fed.  123,  44  C. 
C.  A.  389,  52  L.  R.  A.  481;  Illinois 
Trust  &  Savings  Bank  v.  Ottumwa 
Electric  Ry.  (C.  C),  89  Fed.  325. 

Arkansas;  State  v.  Real  Estate 
Bank,  5  Pike  (5  Ark.),  595,  41  Am. 
Dec.  509  (misuser  and  non-user  are 
the  only  grounds). 

Illinois :  People  v.  Chicago  Teleph. 
Co.,  220  111.  238,  77  N.  E.  245  (in- 
formation alleging  misuse  and  abuse; 
State's  ground  for  relief). 

Louisiana:  State  v.  New  Orleans 
Waterworks  Co.,  107  La.  1,  31  So. 
395  (misuse  and  injury  to  the  pub- 
lic; and  acts  or  omissions  willful 
and  continued). 

Maine:  Ulmerv. Lime  Rock R. Co., 
98  Me.  579,  57  Atl.  1001  (unreason- 
able neglect  of  public  duty  and  dis- 
crimination may  constitute  ground 
for  forfeiture). 

Minnesota:  See  Tower  v.  Tower 
&  S.  Street  R.  Co.,  68  Minn.  500,  38 
L.  R.  A.  541,71  N.  W.  691. 

Missouri:  State,  Hadley,  v.  Del- 
mar  Jockey  Club  (Mo.,  1906),  92 
S.  W.  185  (substantial  failure  to 
fulfill  purposes  for  which  organized); 
State,  Kansas  City,  v.  East  Fifth  St. 
R.  Co.,  140  Mo.  539,  41  S.  W.  955, 
38  L.  R.  A.  218  (non-user;  entire 
failure  to  operate  as  required  by  or- 
dinance, continued  for  three  years). 

872 


New  Jersey:  Phillipsburg  Elec- 
tric Lighting,  H.  &  P.  Co.  v.  Town  of 
Phillipsburg,  66  N.  J.  L.  505,  49 
Atl.  445,  8  Am.  Elec.  Cas.  149  (vio- 
lation of  charter  or  laws  of  State 
renders  liable  to  proceedings  to  for- 
feit; but  ordinance  of  common  coun- 
cil granting  permission  to  erect  poles 
and  wires  cannot  for  that  reason  be 
repealed). 

Tennessee:  State  v.  Chilowee 
Woolen  Mills,  115  Tenn.  266,  89 
S.  W.  741  [statute  (Shannon's  Code, 
§§5165,  5181)  as  to  forfeiture  for 
non-user,  omissions,  negligence, 
abuse,  or  surrender  of  corporate 
powers]. 

Texas:  City  Water  Co.  v.  State 
(Tex.  Civ.  App.),  33  S.  W.  259 
(neglect  to  perform  corporate  duties, 
such  as  non-election  of  officers  or 
directors,  failure  to  hold  meetings, 
etc.,  for  eight  years). 

What  does  not  constitute  misuse, 
non-use  or  abuse  of  corporate  powers, 
etc.  See  Commonwealth  v.  New- 
port L.  &  A.  Turnpike  Co.,  29  Ky. 
L.  Rep.  1285,  997  S.  W.  375,  30  Ky. 
L.  Rep.  1235,  100  S.  W.  871;  Belton, 
In  re,  47  La.  Ann.  1614,  18  So.  642, 
30  L.  R.  A.  648,  2  Am.  &  Eng.  Corp. 
Cas.  (N.  S.)  219  (death  of  or  failure 
to  elect  officers,  or  burning  of  corpo- 
rate plant  works  of  itself  no  disso- 
lution); Philadelphia  &  M.  R.  Co.'s 
Appeal,  187  Pa.  123,  42  W.  N.  C. 
419,  40  Atl.  967  (non-exercise  of 
added  privilege  or  of  one  of  several 
privileges);  Wright  v.  Milwaukee 
Electric  R.  &  L.  Co.,  95  Wis.  29,  69 
N.  W.  791,  36  L.  R.  A.  47  (no  such 


ALIENATION    AND    FORFEITURE 


489 


been  such  neglect  or  disregard  of  the  trust,  or  such  perversion 
of  it  to  the  private  purposes  of  the  corporation  or  corporations, 
as  in  some  manner  or  degree  to  lessen  its  utility  to  those  for 
whose  benefit  it  was  instituted,  or  else  to  work  some  other 
public  injury.  It  must  be,  in  some  sense  or  other,  a  misde- 
meanor in  violation  of  the  trust.63    So  a  single  case  of  misuser 


abandonment  or  non-user  of  to  war- 
rant presumption  of  surrender  of 
franchise;  non-user  continued  for  four 
years  although  old,  but  worthless 
rails  and  ties  removed,  some  of  the 
property  was  left  in  place,  however, 
and  the  period  was  one  of  great 
financial  and  industrial   depression). 

See  also  as  to  abandonment,  Mc- 
Cutcheon  v.  Merz  Capsule  Co.,  71 
Fed.  787,  19  C.  C.  A.  108  (holding 
stock  in  other  corporations);  Africa 
v.  Knoxville  (C.  C),  70  Fed.  729 
(franchise  of  street  railway  under 
city's  consent;  abandonment  must 
arise  in  same  way  as  though  franchise 
directly  from  State);  Babcock  v. 
Scranton  Traction  Co.  (Pa.  C.  P.),  1 
Lack.  L.  News,  223  (permitting,  with- 
out objection,  another  street  rail- 
way company  to  lay  tracks  in  same 
street  abandons  franchise  of  street 
railway  company). 

Consent  of  sovereign  power  nec- 
essary to  enable  corporation  to  cease 
operation  of  street  railway  lines. 
State,  C.rinsfelder,  v.  Spokane  St. 
R.  Co.,  19  Wash.  518,  11  Am.  &  Eng. 
R.  c:is.  (N.  S.)  62,  53  Pac.  719,  41 
L.  R.  A.  515. 

Municipality  cannot  contract  away 
ri'/lii  toforfeitun  for  non-user  of  a  fran- 
chise of  a  s1  ii  i  i  railway  company  to 
its  streets.  State,  Kansas  City,  v. 
I. a  I  Fifth  St.  I;.  Co.,  I  10  Mo.  539, 
11  S.  \V.  955,  38  L.  R.  A.  248. 

"For  all  Franchises  are  derived 
from  the  Crown,  and  therefore  are 
extinguished,    if    they    come    to    the 


Crown  again,  by  Escheat,  Forfeiture, 
or  the  like,  for  the  greater  drowns  the 
less.  A  Franchise  *  *  *  is  for- 
feited by  Misuser  thereof.  *  *  * 
Misuser  of  any  Point,  where  there  is 
many  in  one  Franchise,  is  a  For- 
feiture of  the  whole;  but  not  where 
the  Franchises  are  several."  Finch's 
Laws  of  Eng.,  126  [38]. 

"A  private  corporation  created  by 
the  legislature  may  lose  its  fran- 
chises by  a  misuser  or  non-user  of 
them,  and  they  may  be  resumed  by 
the  government  under  a  judicial 
judgment  upon  a  quo  icarranto  to  as- 
certain and  enforce  the  forfeiture. 
This  is  the  common  law  of  the  land, 
and  is  a  tacit  condition  annexed  to 
the  creation  of  every  such  corpora- 
tion. Upon  a  change  of  government, 
too,  it  may  be  admitted  that  such 
exclusive  privileges  attached  to  a 
private  corporation  as  are  incon- 
sistent with  the  new  government 
may  be  abolished."  Terrett  v.  Tay- 
lor, 9  Cranch  (13  U.  S.),  43,  51,  3 
L.  ed.  650,  per  Story,  J. 

"State   v.    Real    Estate    Bank,   5 
Pike  (•'.  Ark.i,  595,  41  Am.  Dee.  509. 

"  1  fence,  if  they  engage  in  any 
business  not  authorized  by  the  stat- 
ute, it  is  ultra  vires,  Or  in  excess  of 
their  powers,  but  not  a  usurpation 
of  franchises  not,  granted,  not  nec- 
essarily a  misuser  of  those  granted 
Acts  in  excess  of  power  may  un- 
doubtedly lie  carried  so  far  as  to 
amounl  to  a  misuser  of  the  franchise 
tn  be  a  corporation  and  a  ground  for 

873 


§    490  ALIENATION    AND    FORFEITURE 

without  resulting  public  injury,  or  suspension,  or  delay  or 
non-user  for  a  limited  time,  or  a  temporary  interruption  by 
vis  major  of  the  use  of  a  franchise  will  not  constitute  a  ground 
of  forfeiture,64  and  in  New  York,  under  the  Code,  the  period 
of  non-user  must  have  been  continued  for  at  least  one  year; 
that  is,  the  corporation  must  have  suspended  its  ordinary  and 
lawful  business  for  that  period.65 

§  490.  When  Franchise  Will  Be  Forfeited— Instances. — 

Where  a  statute  or  charter  imposes  upon  a  railroad  corpora- 
tion any  or  all  of  the  conditions  that  it  shall  begin  construction 
or  complete  or  operate  its  road  within  a  certain  time,  its  fran- 
chise may  be  forfeited  or  the  corporation  dissolved  by  non- 
compliance therewith.66    A  failure  to  furnish  pure  water,  or  to 

its  forfeiture.  How  far  it  must  go  to  monwealth  v.  New  York,  L.  E.  &  W. 
amount  to  this  the  courts  have  wisely  C.  &  R.  Co.,  10  Pa.  Co.  Ct.  129. 
never  attempted  to  define,  except  in  65  People  v.  Atlantic  Ave.  R.  Co., 
very  general  terms,  preferring  the  125  N.  Y.  513,  35  N.  Y.  St.  Rep.  872, 
safer  course  of  adopting  a  gradual  26  N.  E.  622,  9  Ry.  &  Corp.  L.  J. 
process  of  judicial  inclusion  and  ex-  262,  aff  'g  10  N.  Y.  Supp.  907,  32  N.  Y. 
elusion  as  the  cases  arise.  But  we  St.  Rep.  717,57  Hun,  378,  under  N.Y. 
think  it  may  be  safely  stated  as  the  Code  Civ.  Proc,  §  1785.  Examine 
general  consensus  of  the  authorities  People  v.  Seneca  Lake  Grape  &  Wine 
that,  to  constitute  a  misuser  of  the  Co.,  52  Hun  (N.  Y.),  174,  17  C.  P. 
corporate  franchise,  such  as  to  war-  130,  23  N.  Y.  St.  Rep.  346,  5  N.  Y. 
rant  its  forfeiture,  the  ultra  vires  acts  Supp.  136,  aff'd  126  N.  Y.  631,  36 
must  be  so  substantial  and  continued  N.  Y.  St.  Rep.  1013,  27  N.  E.  410; 
as  to  amount  to  a  clear  violation  of  Ward  v.  Sea  Ins.  Co.,  7  Paige  (N.  Y.), 
the  condition  upon  which  the  fran-  294;  Bliven  v.  Peru  S.  &  I.  Co.,  9 
chise  was  granted,  and  so  derange  and  Abb.  N.  C.  (N.  Y.)  205. 
destroy  the  business  of  the  corpora-  66  Commonwealth  v.  Middletown 
tion  that  it  no  longer  fulfills  the  end  Electric  Ry.  Co.,  23  Pa.  Co.  Ct.  R. 
for  which  it  was  created.  But,  in  262,  2  Dauph.  Co.  Rep.  316,  6  Lack. 
case  of  excess  of  powers,  it  is  only  Leg.  N.  81  (holding  also  that  delay 
where  some  public  mischief  is  done  or  was  occasioned  by  injunction  no  ex- 
threatened  that  the  State,  by  the  cuse);  State,  Ellis,  v.  Nonconnah 
Attorney  General,  should  interfere."  Turnp.  Co.  (Tenn.),  17  S.  W.  128. 
State  v.  Minnesota  Thresher  Mfg.  Examine  Bonaparte  v.  Baltimore,  H. 
Co.,  40  Minn.  213,  225,  226,  41  N.  W.  &  L.  R.  Co.,  75  Md.  340,  23  Atl.  784, 
1020,  3  L.  R.  A.  510,  per  Mitchell,  J.  49  Am.  &  Eng.  R.  Cas.  198  (where 
64  Bridgewater  Ferry  Co.  v.  Sharon  time  limit  for  commencing  and  corn- 
Bridge  Co.,  145  Pa.  404,  29  W.  N.  C.  pleting  road  has  expired,  street  rail- 
141,  22  Pitts.  L.  J.  (N.  S.)  143,48  way  company  has  no  legal  existence); 
Leg.  Int.  516,  22    Atl.    1039;    Com-  Brooklyn,  Q.  C.  &  S.  R.  Co.,  In  re,  94 

874 


ALIENATION    AND    FORFEITURE  §    491 

furnish  a  proper  supply  of  water  may  warrant  a  forfeiture;67 
and  discrimination  to  prevent  competition  may  be  a  ground 
for  a  forfeiture.68  So  a  forfeiture  will  be  adjudged  for  charging 
higher  rates  for  water  than  are  charged  by  a  city ; 69  and  for 
failure  to  keep  general  offices  and  the  treasurer's  office  and  its 
moneys  within  a  State.70 

§  491.  When  Franchise  Will  not  Be  Forfeited —Instances. 

— A  franchise  will  not  be  forfeited  or  the  corporation  dissolved 
for  non-compliance  with  a  condition  in  its  charter  or  statute 
requiring  it  to  organize  and  commence  business  within  a 
specified  time,  or  where  there  is  a  failure  on  the  part  of  a  rail- 
road company  to  comply  with  any  or  all  of  the  conditions 
imposed  by  its  charter  or  statute  as  to  beginning,  completing 
or  operating  its  road  within  a  certain  time,  where  the  circum- 
stances are  such  as  to  excuse  such  non-compliance  or  failure  or 

N.  Y.  Supp.  113,  106  App.  Div.  240,  Water  Co.,  212  Pa.  463,  61  Atl.  1099; 
aff'd  185  N.  Y.  171,  77  N.  E.  994  Palestine  Water  Co.  v.  Palestine,  91 
(statutory  limitation  as  to  beginning  Tex.  540,  44  S.  W.  814,  40  L.  R.  A. 
construction,  expending  a  certain  per  203,  aff'g  41  S.  W.  659.  Examine 
cent  of  stock  on  road,  completing  and  Farmers'  Loan  &  Tr.  Co.  v.  Gales- 
operating  same  includes  extensions);  burg,  133  U.  S.  156,  34  L.  ed.  573,  10 
Dusenberry  v.  New  York,  W.  &  C.  Sup.  Ct.  — ;  St.  Cloud,  City  of,  v. 
Traction  Co.,  61  N.  Y.  Supp.  420  (if  Water,  Light  &  Power  Co.  (Minn.), 
no  excuse  offered  for  street  railway's  92  N.  W.  1112. 

failure  to  comply  with  condition  as  to  68  Ulmer  v.  Lime  Rock  R.  Co.,  98 
completion  and  operation  it  will  be  Me.  579,  57  Atl.  1001. 
temporarily  enjoined);  Houston  v.  69  State  v.  New  Orleans  Water- 
Houston,  B.  &  M.  P.  R.  Co.,  84  Tex.  works  Co.,  107  La.  1,  31  So.  395. 
581,  19  S.  \V.  7XC  (forfeiture  applies  Writ  of  error  dismissed  in  New  Or- 
only  to  uncompleted  portions  of  rail-  leans  Waterworks  Co.  v.  Louisiana, 
way  in  accordance  with  condition;  L85  U.  S.  336,  46  L.  ed.  936,  22  Sup. 
substantial     completion     necessary);  Ct.  691. 

Rio  Grande  A-  W.  R.  Co.  v.  Telluride  Collection  of  lolls  by  turnpike  corn- 
Power  Transmission  Co.,  16  Utah,  pany.  Sec  Commonwealth  v.  New- 
125,51  Pac.  146,  under  Comp.  Laws  pori  L.  &  A.  Turnpike  Co.,  29  Ky.  L. 
1888,  chap.  3,  J  §  2360  el  seq.  (when  Rep.  1285,  07  S.  W.  375,  30  Ky.  L. 
time  limit  for  completion  and  opera-  Rep.  1235,  100  S.  W.  871. 
tion  commences  to  run).  '"State,  Safford,  v.  Topeka  Water 
"Capital  City  Water  Co.  v.  State.  Co.,  59  Kan.  L51,  52  Pac.  422,  8  Am. 
Macdonald,  id:.  Ala.  406,  is  So.  &  Eng.  Corp.  Cas.  (N.  S.)  771.  See 
62;  Commonwealth  v.  Potter  County  §  491 ,  herein. 

875 


§  491 


ALIENATION    AND    FORFEITURE 


it  is  evident  that  the  acts  of  the  corporation,  in  attempting  to 
comply  with  the  imposed  conditions,  are  such  as  to  exclude  it 
from  the  operation  of  the  forfeiture  or  dissolution  clause.71 
Nor  will  a  forfeiture  be  decreed  for  non-user  of  privileges  not 
required  to  be  exercised  under  the  grant ; 72  nor  where  the 
statute  does  not  declare  that  the  omission  to  do  the  specified 
act  shall  constitute  a  ground  for  forfeiture ; 73  nor  for  exacting 
more  than  ten  hours'  labor  contrary  to  a  statute ; 74  nor  by  the 
assumption  of  questionable  rights,  or  for  wrong  to  creditors 
and  stockholders  where  there  is  an  adequate  remedy  for  the 
claimed  injury.75  Nor  by  the  failure  to  elect  officers,76  or  to 
file  sworn  reports,77  or  to  keep  books  at  a  certain  place  in  the 
State.78 


71  California:  People  v.  Rosentein- 
Cohn  Cigar  Co.,  131  Cal.  153,  63  Pac. 
163  (in  this  case  the  corporation  or- 
ganized, elected  officers,  made  by- 
laws and  adopted  a  seal  within  the 
time  limit);  Areata  v.  Areata  &  M. 
R.  R.  Co.,  92  Cal.  639,  28  Pac.  676 
(no  time  limit  for  construction;  fran- 
chise must  be  accepted  and  exercised 
within  reasonable  time). 

Iowa:  Young  v.  Webster  City  & 
So.  West.  R.  Co.,  75  Iowa,  140,  39 
N.  W.  234  (capital  stock  not  paid, 
but  persistent  efforts  made  to  pro- 
cure means  for  constructing  road). 

Maryland:  Murphy  v.  Wheatley, 
102  Md.  501,63  Atl.  62. 

New  York:  People  v.  Ellison,  101 
N.  Y.  Supp.  444,  51  Misc.  413,  aff'd 
101  N.  Y.  Supp.  55,  115  App.  Div. 
254,  also  aff'd  188  N.  Y.  523,  81  N.  E. 
447. 

North    Carolina:     Seaboard    Air 


Line  R.  Co.  v.  Olive,  142  N.  C.  257, 
55  S.  E.  263. 

72  Cincinnati,  City  of,  v.  Covington 
&  C.  Bridge  Co.,  20  Ohio  Cir.  Ct.  Rep. 
396. 

73  State  v.  Cumberland  Teleph.  & 
Teleg.  Co.,  114  Tenn.  194,  86  S.  W. 
390.  See  State  v.  United  States  En- 
dowment &  Trust  Co.,  140  Ala.  610, 
37  So.  442. 

74  People  v.  Atlantic  Ave.  Rd.  Co., 
125  N.  Y.  513,  35  N.  Y.  St.  Rep.  872, 
26  N.  E.  622,  9  Ry.  &  Corp.  L.  J. 
262,  aff'd  10  N.  Y.  Supp.  907,  57 
Hun,  378,  32  N.  Y.  St.  Rep.  717. 

75  State  v.  Southern  Bldg.  &  Loan 
Assoc.  (Ala.),  31  So.  375. 

76  Youree  v.  Home  Town  Mut.  Ins. 
Co.,  180  Mo.  153,  79  S.  W.  175. 

77  State  v.  Galena  Water  Co. 
(Kan.),  65  Pac.  257. 

78  State  v.  United  States  Endow- 
ment &  Trust  Co.,  140  Ala.  610,  37 
So.  442.    See  §  490,  herein. 


876 


APPENDIX  A. 

PUBLIC   SERVICE   COMMISSIONS    LAW 

OF 

NEW  YORK. 


APPENDIX  A. 


LAWS  OF  NEW  YORK. 

[Every  law,  unless  a  different  time  shall  be  prescribed  therein,  shall  not 
take  effect  until  the  twentieth  day  after  it  shall  have  become  a  law.  Sec- 
tion 43,  article  II,  chapter  8,  General  Laws.] 

CHAPTER  429. 

AN  ACT  to  establish  the  public  service  commissions  and  pre- 
scribing their  powers  and  duties,  and  to  provide  for  the  regu- 
lation and  control  of  certain  public  service  corporations  and 
making  an  appropriation  therefor. 

Became  a  law,  June  6,  1907,  with  the  approval  of  the  Governor.     Passed, 
three-fifths  being  present. 

Passed  without  the  acceptance  of  the  city  of  New  York. 

The  People  of  the  State  of  Neio  York,  represented  in  Senate 
and  Assembly,  do  enact  as  follows: 

THE  PUBLIC  SERVICE  COMMISSIONS  LAW. 

Article       I.  Public   service   commissions;   general   provisions 
(§§  1-23). 
II.  Provisions  relating  to  railroads,  street    railroads 
and  common  carriers  (§§25-40). 

III.  Provisions  relating  to  the  powers  of  the  commis- 

sions in  respect  to  railroads,  street   railroads 
and  common  carriers  (§§45  60). 

IV.  Provisions  relating  to  gas  and  electric  corpora- 

tions; regulation  of  price  of  gas  and  electricity 
(§§65-77). 
V.  Commissions  and  offices  abolished;  saving  clause; 

repeal   (§§80-89). 

879 


§§  1,  2 


APPENDIX   A 


ARTICLE  J. 


PUBLIC    SERVICE    COMMISSIONS;    GENERAL  PROVISIONS. 


1.  Short  Title. 

2.  Definitions. 

3.  Public  Service  Districts. 

4.  Commissions  Established;  Ap- 

pointment; Removal;  Terms 
of  Office. 

5.  Jurisdiction  of  Commissions. 

6.  Counsel  to  the  Commissions. 

7.  Secretary  to  the  Commissions. 

8.  Additional    Officers    and    Em- 

ployees. 

9.  Oath   of   Office;   Eligibility   of 

Commissioners  and  Officers. 

10.  Offices  of  Commissions;  Meet- 

ings;  Official   Seal;   Station- 
ery. 

11.  Quorum;  Powers  of  a  Commis- 

sioner. 

12.  Counsel   to   the   Commissions; 

Duties. 


§   13.  Salaries  and  Expenses. 

14.  Payment  of  Salaries  and  Ex- 

penses. 

15.  Certain  Acts  Prohibited. 

1G.  Annual    Report    of    Commis- 
sions. 

17.  Certified     Copies     of      Papers 

Filed  to  Be  Evidence. 

18.  Fees  to  Be  Charged  and  Col- 

lected by  the  Commissions. 

19.  Attendance  of   Witnesses   and 

Their  Fees. 

20.  Practice   Before   the   Commis- 

sions;    Immunity     of    Wit- 
nesses. 

21.  Court     Proceedings;      Prefer- 

ence. 

22.  Rehearing     Before      Commis- 

sion. 

23.  Service  and  Effect  of  Orders. 


Section  1.  Short  Title. — This  chapter  shall  be  known  as 
the  public  service  commissions  law,  and  shall  apply  to  the 
public  services  herein  described,  and  to  the  commissions 
hereby  created. 

§2.  Definitions. — The  term  "commission,"  when  used  in 
this  act,  means  either  public  service  commission,  hereby 
created,  which  by  the  terms  of  this  act  is  vested  with  the 
power  or  duty  in  question. 

The  term  "commissioner,"  when  used  in  this  act,  means 
one  of  the  members  of  such  commission. 

The  term  "corporation,"  when  used  in  this  act,  includes  a 
corporation  company,  association  and  joint-stock  association. 

The  word  "person,"  when  used  in  this  act,  includes  an 
individual  and  a  firm  or  copartnership. 

The  term  "street  railroad,"  when  used  in  this  act,  includes 
880 


PUBLIC   SERVICE   COMMISSIONS   LAW   OF   NEW   YORK        §   2 

every  railroad  by  whatsoever  power  operated,  or  any  exten- 
sion or  extensions,  branch  or  branches  thereof,  for  public  use 
in  the  conveyance  of  persons  or  property  for  compensation, 
being  mainly  upon,  along,  above  or  below  any  street,  avenue, 
road,  highway,  bridge  or  public  place  in  any  city,  village  or 
town,  and  including  all  switches,  spurs,  tracks,  right  of  track- 
age, subways,  tunnels,  stations,  terminals  and  terminal  fa- 
cilities of  every  kind  used,  operated,  controlled  or  owned  by 
or  in  connection  with  any  such  street  railroad;  but  the  said 
term  "street  railroad,"  when  used  in  this  act,  shall  not  include 
a  railroad  constituting  or  used  as  part  of  a  trunk  line  railroad 
system. 

The  term  "railroad,"  when  used  in  this  act,  includes  every 
railroad,  other  than  a  street  railroad,  by  whatsoever  power 
operated  for  public  use  in  the  conveyance  of  persons  or  prop- 
erty for  compensation,  with  all  bridges,  ferries,  tunnels, 
switches,  spurs,  tracks,  stations  and  terminal  facilities  of 
every  kind  used,  operated,  controlled  or  owned  by  or  in  con- 
nection with  any  such  railroad. 

The  term  "street  railroad  corporation,"  when  used  in  this 
act,  includes  every  corporation,  company,  association,  joint- 
stock  association,  partnership  and  person,  their  lessees,  trustees 
or  receivers  appointed  by  any  court  whatsoever,  owning, 
operating,  managing  or  controlling  any  street  railroad  or  any 
cars  or  other  equipment  used  thereon  or  in  connection  there- 
with. 

The  term  "railroad  corporation,"  wrhen  used  in  this  act, 
includes  every  corporation,  company,  association,  joint-stock 
association,  partnership  and  person,  their  lessees,  trustees  or 
receivers  appointed  by  any  court  whatsoever,  owning,  operat- 
ing, managing  or  controlling  any  railroad  or  any  cars  or  other 
equipment  used  thereon  or  in  connection  therewith. 

The  term  "common  carrier,"  when  used  in  this  act,  includes 
all  railroad  corporations,  street  railroad  corporations,  express 
companies,  car  companies,  sleeping-car  companies,  freight  com- 
panies, freight-line  companies  and  all  persons  and  associations 
of  persons,  whether  incorporated  or  not,  operating  such  agencies 
56  sx  | 


§§    3,    4  APPENDIX    A 

for  public  use  in  the  conveyance  of  persons  or  property  within 
this  State. 

The  term  "gas  corporation,"  when  used  in  this  act,  includes 
every  corporation,  company,  association,  joint-stock  associ- 
ation, partnership  and  person,  their  lessees,  trustees  or  receivers 
appointed  by  any  court  whatsoever,  owning,  operating,  manag- 
ing or  controlling  any  plant  or  property  for  manufacturing  and 
distributing  and  selling  for  distribution  or  distributing  illu- 
minating gas  (natural  or  manufactured)  for  light,  heat  or  power. 

The  term  "electrical  corporation,"  when  used  in  this  act,  in- 
cludes every  corporation,  company,  association,  joint-stock 
association,  partnership  and  person,  their  lessees,  trustees  or 
receivers  appointed  by  any  court  whatsoever  (other  than  a 
railroad  or  street  railroad  corporation  generating  electricity  for 
its  own  use  exclusively),  owning,  operating,  managing  or  con- 
trolling any  plant  or  property  for  generating  and  distributing, 
or  generating  and  selling  for  distribution,  or  distributing  elec- 
tricity for  light,  heat  or  power  or  for  the  transmission  of  electric 
current  for  such  purposes. 

The  term  "transportation  of  property  or  freight,"  when  used 
in  this  act,  includes  any  service  in  connection  with  the  receiving, 
delivery,  elevation,  transfer  in  transit,  ventilation,  refriger- 
ation, icing,  storage  and  handling  of  the  property  or  freight 
transported. 

The  term  "municipality,"  when  used  in  this  act,  includes  a 
city,  village,  town  or  lighting  district,  organized  as  provided  by 
a  general  or  special  act. 

§  3.  Public  Service  Districts. — There  are  hereby  created 
two  public  service  districts,  to  be  known  as  the  first  district  and 
the  second  district.  The  first  district  shall  include  the  counties 
of  New  York,  Kings,  Queens  and  Richmond.  The  second  dis- 
trict shall  include  all  other  counties  of  the  State. 

§  4.  Commissions  Established ;  Appointment ;  Removal ; 
Terms  of  Office. — There  shall  be  a  public  service  commission 
for  each  district,  and  each  commission  shall  possess  the  powers 
882 


PUBLIC   SERVICE   COMMISSIONS   LAW   OF   NEW   YORK         §    5 

and  duties  hereinafter  specified,  and  also  all  powers  necessary 
or  proper  to  enable  it  to  carry  out  the  purposes  of  this  act.  The 
commission  of  the  first  district  shall  consist  of  five  members 
and  the  commission  of  the  second  district  shall  consist  of  five 
members,  to  be  appointed  by  the  governor,  by  and  with  the  ad- 
vice and  consent  of  the  senate,  one  of  whom  designated  by  the 
governor  shall,  during  his  term  of  office,  be  the  chairman  of  the 
commission  of  which  he  is  a  member.  Each  commissioner  shall 
be  a  resident  of  the  district  for  which  he  is  appointed. 

The  governor  may  remove  any  commissioner  for  inefficiency, 
neglect  of  duty  or  misconduct  in  office,  giving  to  him  a  copy  of 
the  charges  against  him,  and  an  opportunity  of  being  publicly 
heard  in  person  or  by  counsel  in  his  own  defense,  upon  not  less 
than  ten  days'  notice.  If  such  commissioner  shall  be  removed 
the  governor  shall  file  in  the  office  of  the  Secretary  of  State  a 
complete  statement  of  all  charges  made  against  such  commis- 
sioner, and  his  findings  thereon,  together  with  a  complete  record 
of  the  proceedings. 

Of  the  members  of  the  commission  in  each  district  first  ap- 
pointed hereunder,  one  shall  hold  office  until  February  first, 
nineteen  hundred  and  nine,  one  until  February  first,  nineteen 
hundred  and  ten,  one  until  February  first,  nineteen  hundred 
and  eleven,  one  until  February  first,  nineteen  hundred  and 
twelve,  and  one  until  February  first,  nineteen  hundred  and 
thirteen;  the  term  of  office  of  each  commissioner  so  appointed 
shall  begin  on  the  first  day  of  July,  nineteen  hundred  and  seven. 
Upon  the  expiration  of  each  of  such  terms,  the  term  of  office  of 
each  commissioner  thereafter  appointed  shall  be  five  years  from 
the  first  of  February.  Vacancies  shall  be  filled  by  appointment 
for  the  unexpired  term. 

§  5.  Jurisdiction  of  Commissions. — The  jurisdiction,  super- 
vision, powers  and  duties  of  the  public  service  commission  in 

the  first  district  shall  extend  under  this  act: 

1.  To  railroads  and  streel  railroads  lying  exclusively  within 
that  district,  and  to  the  persons  or  corporations  owning,  leas- 
ing, operating  or  controlling  the  same. 

883 


§   5  APPENDIX   A 

2.  To  street  railroads  any  portion  of  whose  lines  lies  within 
that  district,  to  all  transportation  of  persons  or  property  thereon 
within  that  district  or  from  a  point  within  either  district  to  a 
point  within  the  other  district,  and  to  the  persons  or  corpora- 
tions owning,  operating,  controlling  or  leasing  the  said  street 
railroads;  provided,  however,  that  the  commission  for  the 
second  district  shall  have  jurisdiction  over  such  portion  of  the 
lines  of  said  street  railroads  as  lies  within  the  second  district, 
and  over  the  persons  or  corporations  owning,  operating,  con- 
trolling or  leasing  the  same,  so  far  as  concerns  the  construction, 
maintenance,  equipment,  terminal  facilities  and  local  transpor- 
tation facilities  of  said  street  railroads  within  the  second  district. 

3.  To  such  portion  of  the  lines  of  any  other  railroad  as  lies 
within  that  district,  and  to  the  person  or  corporation  owning, 
leasing,  operating  or  controlling  the  same,  so  far  as  concerns  the 
construction,  maintenance,  equipment,  terminal  facilities  and 
local  transportation  facilities,  and  local  transportation  of  per- 
sons or  property  within  that  district. 

4.  To  any  common  carrier  operating  or  doing  business  exclu- 
sively within  that  district. 

5.  To  the  manufacture,  sale  or  distribution  of  gas  and  elec- 
tricity for  light,  heat  and  power  in  said  district,  and  to  the  per- 
sons or  corporations  owning,  leasing,  operating  or  controlling 
the  same. 

6.  And  in  addition  thereto,  the  commission  in  the  first  dis- 
trict shall  have  and  exercise  all  powers  heretofore  conferred 
upon  the  board  of  rapid  transit  railroad  commissioners  under 
chapter  four  of  the  laws  of  eighteen  hundred  and  ninety-One, 
entitled:  "An  act  to  provide  for  rapid  transit  railways  in  cities 
of  over  one  million  inhabitants,"  and  the  acts  amendatory 
thereto. 

All  jurisdiction,  supervision,  powers  and  duties  under  this 
act  not  specifically  granted  to  the  public  service  commission  of 
the  first  district  shall  be  vested  in,  and  be  exercised  by,  the  pub- 
lic service  commission  of  the  second  district,  including  the  regu- 
lation and  control  of  all  transportation  of  persons  or  property, 
and  the  instrumentalities  connected  with  such  transportation, 
884 


PUBLIC   SERVICE   COMMISSIONS   LAW   OF   NEW   YORK     §§   5-8 

on  any  railroad  other  than  a  street  railroad  from  a  point  within 
either  district  to  a  point  within  the  other  district. 

§  6.  Counsel  to  the  Commissions. — Each  commission  shall 
appoint  as  counsel  to  the  commission  an  attorney  and  counsel- 
lor-at-law  of  the  State  of  New  York,  who  shall  hold  office  during 
the  pleasure  of  the  commission.  Each  counsel  to  the  commission 
shall,  subject  to  the  approval  of  the  commission,  have  the  power 
to  appoint,  and  at  pleasure  remove,  attorneys  and  counsellors- 
at-law,  to  assist  him  in  the  performance  of  his  duties,  and  also 
to  employ  and  remove  stenographers  and  process-servers. 

§  7.  Secretary  to  the  Commissions. — Each  commission  shall 
have  a  secretary  to  be  appointed  by  it  and  to  hold  office  during 
its  pleasure.  It  shall  be  the  duty  of  the  secretary  to  keep  a  full 
and  true  record  of  all  proceedings  of  the  commission,  of  all 
books,  maps,  documents  and  papers  ordered  filed  by  the  com- 
mission and  of  all  orders  made  by  a  commissioner  and  of  all 
orders  made  by  the  commission  or  approved  and  confirmed  by 
it  and  ordered  filed,  and  he  shall  be  responsible  to  the  commis- 
sion for  the  safe  custody  and  preservation  of  all  such  documents 
at  its  office.  Under  the  direction  of  the  commission  the  secre- 
tary shall  have  general  charge  of  its  office,  superintend  its  cleri- 
cal business  and  perform  such  other  duties  as  the  commission 
may  prescribe.  He  shall  have  power  and  authority  to  ad- 
minister oaths  in  all  parts  of  the  State,  so  far  as  the  exercise  of 
such  power  is  properly  incidental  to  the  performance  of  his  duty 
or  that  of  the  commission.  The  secretary  shall  designate,  from 
time  to  time,  one  of  the  clerks  appointed  by  the  commission  to 
perform  the  duties  of  secretary  during  his  absence  and,  during 
such  time,  the  clerk  so  designated  shall  :it  the  office  possess  the 
powers  of  the  secretary  of  the  commission. 

§  S.  Additional  Officers  and  Employees. — Each  commission 
shall  have  power  to  employ,  during  its  pleasure,  such  officers, 
clerks,  inspectors,  experts  and  employees  as  it  may  deem  to  be 
necessary  to  carry  out  the  provisions  of  this  act,  or  to  perform 

885 


§§    9-11  APPENDIX   A 

the  duties  and  exercise  the  powers  conferred  by  law  upon  the 
commission. 

§  9.  Oath  of  Office ;  Eligibility  of  Commissioners  and 
Officers. — Each  commissioner  and  each  person  appointed  to 
office  by  a  commission  or  by  counsel  to  a  commission  shall,  be- 
fore entering  upon  the  duties  of  his  office,  take  and  subscribe 
the  constitutional  oath  of  office.  No  person  shall  be  eligible 
for  appointment  or  shall  hold  the  office  of  commissioner  or  be 
appointed  by  a  commission  or  by  counsel  to  a  commission  to,  or 
hold,  any  office  or  position  under  a  commission,  who  holds  any 
official  relation  to  any  common  carrier,  railroad  corporation, 
street  railroad  corporation,  gas  corporation  or  electrical  corpo- 
ration subject  to  the  provisions  of  this  act,  or  who  owns  stocks 
or  bonds  therein. 

§  10.  Offices  of  Commissions;  Meetings;  Official  Seal; 
Stationery,  etc. — The  principal  office  of  the  commission  of  the 
the  first  district  shall  be  in  the  borough  of  Manhattan,  city  of 
New  York;  and  the  office  of  the  second  district  shall  be  in  the 
city  of  Albany,  in  rooms  designated  by  the  trustees  of  public 
buildings.  Each  commission  shall  hold  stated  meetings  at 
least  once  a  month  during  the  year  at  its  office.  Each  shall  have 
an  official  seal  to  be  furnished  and  prepared  by  the  Secretary  of 
State  as  provided  by  law.  The  offices  shall  be  supplied  with  all 
necessary  books,  maps,  charts,  stationery,  office  furniture,  tele- 
phone and  telegraph  connections  and  all  other  necessary  ap- 
pliances, to  be  paid  for  in  the  same  manner  as  other  expenses 
authorized  by  this  act. 

2.  The  offices  of  each  commission  shall  be  open  for  business 
between  the  hours  of  eight  o'clock  in  the  morning  and  eleven 
o'clock  at  night  every  day  in  the  year,  and  one  or  more  re- 
sponsible persons,  to  be  designated  by  the  commission  or  by 
the  secretary  under  the  direction  of  the  commission,  shall  be  on 
duty  at  all  times  in  immediate  charge  thereof. 

§  11.  Quorum;  Powers  of  a  Commissioner. — A  majority 
of  the  commissioners  shall  constitute  a  quorum  for  the  transac- 

886 


PUBLIC   SERVICE    COMMISSIONS   LAW   OF  NEW   YORK     §§    12,    13 

tion  of  any  business,  for  the  performance  of  any  duty  or  for  the 
exercise  of  any  power  of  the  commission,  and  may  hold  meet- 
ings of  the  commission  at  any  time  or  place  within  the  State. 
Any  investigation,  inquiry  or  hearing  which  either  commission 
has  power  to  undertake  or  to  hold  may  be  undertaken  or  held 
by  or  before  any  commissioner.  All  investigations,  inquiries, 
hearings  and  decisions  of  a  commissioner  shall  be  and  be  deemed 
to  be  the  investigations,  inquiries,  hearings  and  decisions  of  the 
commission  and  every  order  made  by  a  commissioner,  when  ap- 
proved and  confirmed  by  the  commission  and  ordered  filed  in 
its  office,  shall  be  and  be  deemed  to  be  the  order  of  the  commis- 
sion. 

§  12.  Counsel  to  the  Commissions ;  Duties. — It  shall  be  the 
duty  of  counsel  to  a  commission  to  represent  and  appear  for 
the  people  of  the  State  of  New  York  and  the  commission  in  all 
actions  and  proceedings  involving  any  question  under  this  act, 
or  under  or  in  reference  to  any  act  or  order  of  the  commission, 
and,  if  directed  to  do  so  by  the  commission,  to  intervene,  if  pos- 
sible, in  any  action  or  proceeding  in  which  any  such  question  is 
involved;  to  commence  and  prosecute  all  actions  and  proceed- 
ings directed  or  authorized  by  the  commission,  and  to  expedite 
in  every  way  possible  final  determination  of  all  such  actions  and 
proceedings;  to  advise  the  commission  and  each  commissioner 
when  so  requested  in  regard  to  all  matters  in  connection  with 
the  powers  and  duties  of  the  commission  and  of  the  members 
thereof,  and  generally  to  perform  all  duties  and  services  as  at- 
torney and  counsel  to  the  commission  which  the  commission 
may  reasonably  require  of  him. 

§  13.  Salaries  and  Expenses. — The  annual  salary  of  each 
commissioner  shall  be  fifteen  thousand  dollars  ($15,000).  The 
annual  salary  of  counsel  to  a  commission  shall  be  ten  thousand 
dollars  ($10,000).  The  annual  salary  of  a  secretary  to  a  com- 
mission shall  be  six  thousand  dollars  ($0,000).  All  officers, 
clerks,  inspectors,  experts  and  employees  of  a  commission,  and 
all  persons  appointed  by  the  counsel  to  a  commission,  shall  re- 
ceive the  compensation  fixed  by  the  commission. 

887 


§    14  APPENDIX    A 

The  commissioners,  counsel  to  the  commission  and  the  secre- 
tary, and  their  officers,  clerks,  inspectors,  experts  and  other 
employees,  shall  have  reimbursed  to  them  all  actual  and  neces- 
sary travelling  and  other  expenses  and  disbursements  incurred 
or  made  by  them  in  the  discharge  of  their  official  duties. 

§  14.  Payment  of  Salaries  and  Expenses. — 1.  The  salaries 
of  the  commissioners,  the  counsel  to  the  commission,  and  the 
secretary  to  the  commission  in  the  first  district  shall  be  audited 
and  allowed  by  the  state  comptroller,  and  paid  monthly  by  the 
state  treasurer  upon  the  order  of  the  comptroller  out  of  the 
funds  provided  therefor.  All  other  salaries  and  expenses  of  the 
commission  of  the  first  district  shall  be  audited  and  paid  as 
follows :  The  board  of  estimate  and  apportionment  of  the  city  of 
New  York,  or  other  board  or  public  body  on  which  is  imposed 
the  duty  and  in  which  is  vested  the  power  of  making  appropri- 
ations of  public  moneys  for  the  purposes  of  the  city  government 
shall,  from  time  to  time,  on  requisition  duly  made  by  the  public 
service  commission  of  the  first  district,  appropriate  such  sum 
or  sums  of  money  as  may  be  requisite  and  necessary  to  enable 
it  to  do  and  perform,  or  cause  to  be  done  and  performed,  the 
duties  in  this  or  in  any  other  act  prescribed,  and  to  provide  for 
the  expenses  and  the  compensation  of  the  employees  of  such 
commission,  and  such  appropriation  shall  be  made  forthwith 
upon  presentation  of  a  requisition  from  the  said  commission, 
which  shall  state  the  purposes  for  which  such  moneys  are  re- 
quired by  it.  In  case  the  said  board  of  estimate  and  apportion- 
ment, or  such  other  board  or  public  body,  fail  to  appropriate 
such  amount  as  the  said  commission  deems  requisite  and  neces- 
sary, the  said  commission  may  apply  to  the  appellate  division 
of  the  Supreme  Court  in  the  first  department,  on  notice  to  the 
board  of  estimate  and  apportionment  or  such  other  board  or 
public  body  aforesaid,  to  determine  what  amount  shall  be  ap- 
propriated for  the  purposes  so  required  and  the  decision  of  said 
appellate  division  shall  be  final  and  conclusive;  and  the  city 
shall  not  be  liable  for  any  indebtedness  incurred  by  the  said 
commission  in  excess  of  such  appropriation  or  appropriations. 
888 


PUBLIC   SERVICE    COMMISSIONS   LAW   OF   NEW   YORK      §    14 

It  shall  be  the  duty  of  the  auditor  and  comptroller  of  said  city, 
after  such  appropriation  shall  have  been  duly  made,  to  audit 
and  pay  the  proper  expenses  and  compensation  of  the  employees 
of  said  commission  other  than  its  counsel  and  secretary,  upon 
vouchers  therefor,  to  be  furnished  by  the  said  commission,  which 
payments  shall  be  made  in  like  manner  as  payments  are  now 
made  by  the  auditor,  comptroller  or  other  public  officers  of 
claims  against  and  demands  upon  such  city;  and  for  the  purpose 
of  providing  funds  with  which  to  pay  the  said  sums,  the  comp- 
troller or  other  chief  financial  officer  of  said  city,  is  hereby  au- 
thorized and  directed  to  issue  and  sell  revenue  bonds  of  such 
city  in  anticipation  of  receipt  of  taxes  and  out  of  the  proceeds 
of  such  bonds  to  make  the  payments  in  this  section  required 
to  be  made.  The  amount  necessary  to  pay  the  principal  and 
interest  of  such  bonds  shall  be  included  in  the  estimates  of 
moneys  necessary  to  be  raised  by  taxation  to  carry  on  the 
business  of  said  city,  and  shall  be  made  a  part  of  the  tax  levy 
for  the  year  next  following  the  year  in  which  such  appropri- 
ations are  made.  The  commission  may  provide  that  all  or  any 
portion  of  the  expenses  so  incurred  and  paid  by  said  city  as  in 
this  section  provided,  and  for  which  said  city  shall  be  liable, 
shall  be  repaid,  with  interest,  by  the  bidder  or  bidders  at  the 
public  sale  of  the  rights,  privileges  and  franchises,  as  provided 
in  chapter  four  of  the  laws  of  eighteen  hundred  and  ninety-one, 
entitled :  "An  act  to  provide  for  rapid  transit  railways  in  cities 
of  over  one  million  inhabitants,"  and  the  acts  amendatory 
thereto.  The  said  comptroller  shall  pay  the  proper  salaries 
and  the  expenses  of  the  said  commission  upon  its  requisition, 
for  the  remainder  of  the  fiscal  year  after  this  act  shall  take 
effect,  from  any  funds  that  may  have  been  heretofore  appro- 
priated for  the  board  of  rapid  transit  railroad  commissioners, 
which  appropriation  is  hereby  transferred  to  the  credil  of  the 
public  service  commission  of  the  first  district.  In  case  the  said 
appropriation  shall  not  be  Bufficienl  to  meet  such  salaries  and 
expenses,  the  comptroller  of  said  city  is  hereby  authorized  and 
directed  to  issue  and  sell  revenue  bonds  of  said  city,  in  anticipa- 
tion of  receipt  of  taxes,  as  hereinbefore  provided. 

889 


§§    15,    16  APPENDIX   A 

2.  All  salaries  and  expenses  of  the  commission  in  the  second 
district  shall  be  audited  and  allowed  by  the  state  comptroller 
and  paid  monthly  by  the  state  treasurer  upon  the  order  of  the 
comptroller,  out  of  the  funds  provided  therefor. 

§  15.  Certain  Acts  Prohibited. — Every  commissioner,  coun- 
sel to  a  commission,  the  secretary  of  a  commission,  and  every 
person  employed  or  appointed  to  office,  either  by  a  commission 
or  by  the  counsel  to  a  commission,  is  hereby  forbidden  and 
prohibited  to  solicit,  suggest,  request  or  recommend,  directly  or 
indirectly,  to  any  common  carrier,  railroad  corporation  or  street 
railroad  corporation,  or  to  any  officer,  attorney,  agent  or  em- 
ployee thereof,  the  appointment  of  any  person  to  any  office, 
place,  position  or  employment.  And  every  common  carrier, 
railroad  corporation,  street  railroad  corporation,  gas  corpo- 
ration and  electrical  corporation,  and  every  officer,  attorney, 
agent  and  employee  thereof,  is  hereby  forbidden  and  probibited 
to  offer  to  any  commissioner,  to  counsel  to  a  commission,  to  the 
secretary  thereof,  or  to  any  person  employed  by  a  commission 
or  by  the  counsel  to  a  commission,  any  office,  place,  appoint- 
ment or  position,  or  to  offer  or  give  to  any  commissioner,  to 
counsel  to  a  commission,  to  the  secretary  thereof,  or  to  any 
officer  employed  or  appointed  to  office  by  the  commission  or  by 
the  counsel  to  the  commission,  any  free  pass  or  transportation 
or  any  reduction  in  fare  to  which  the  public  generally  are  not 
entitled  or  free  carriage  for  freight  or  property  or  any  present, 
gift  or  gratuity  of  any  kind.  If  any  commissioner,  counsel  to  a 
commission,  the  secretary  thereof  or  any  person  employed  or 
appointed  to  office  by  a  commission  or  by  counsel  to  a  com- 
mission, shall  violate  any  provision  of  this  section  he  shall  be 
removed  from  the  office  held  by  him.  Every  commissioner, 
counsel  to  the  commission,  the  secretary  thereof  and  every  per- 
son employed  or  appointed  to  office  by  the  commission  or  by 
counsel  to  the  commission,  shall  be  and  be  deemed  to  be  a  public 
officer. 

§  16.  Annual  Report  of  Commissions. — All  proceedings  of 
each  commission  and  all  documents  and  records  in  its  posses- 
890 


PUBLIC  SERVICE   COMMISSIONS   LAW  OF  NEW  YORK    §§    17,    18 

sion  shall  be  public  records,  and  each  commission  shall  make  an 
annual  report  to  the  legislature  on  or  before  the  second  Mon- 
day of  January  in  each  year,  which  shall  contain  copies  of  all 
orders  issued  by  it,  and  any  information  in  the  possession  of  the 
commission  which  it  shall  deem  of  value  to  the  legislature  and 
the  people  of  the  State.  Five  hundred  copies  of  each  report,  to- 
gether with  the  abstracts  of  the  reports  to  such  commission  of 
common  carriers,  railroad  corporations  and  street  railroad 
corporations,  and  gas  and  electrical  corporations,  in  addition  to 
the  regular  number  prescribed  by  law,  shall  be  printed  as  a  pub- 
lic document  of  the  State,  bound  in  cloth,  for  the  use  of  the 
commissioners  and  to  be  distributed  by  them  in  their  discretion 
to  railroad,  street  railroad,  gas  and  electrical  corporations  and 
other  persons  interested  therein. 

§  17.  Certified  Copies  of  Papers  Filed  to  Be  Evidence. — 

Copies  of  all  official  documents  and  orders  filed  or  deposited  ac- 
cording to  law  in  the  office  of  either  commission,  certified  by  a 
commissioner  or  by  the  secretary  of  the  commission  to  be  true 
copies  of  the  originals,  under  the  official  seal  of  the  commission, 
shall  be  evidence  in  like  manner  as  the  originals. 

§  18.  Fees  to  Be  Charged  and  Collected  by  the  Commis- 
sions.— Each  commission  shall  charge  and  collect  the  follow- 
ing fees:  For  copies  of  papers  and  records  not  required  to  be 
certified  or  otherwise  authenticated  by  the  commission,  ten 
cents  for  each  folio;  for  certified  copies  of  official  documents  and 
orders  filed  in  its  office,  fifteen  cents  for  each  folio,  and  one 
dollar  for  every  certificate  under  seal  affixed  thereto;  for  certi- 
fying a  copy  of  any  report  made  by  a  corporation  to  the  com- 
mission, two  dollars;  for  each  certified  copy  of  the  annual  report 
of  the  commission,  one  dollar  and  fifty  cents;  for  certified  copies 
of  evidence  and  proceedings  before  the  commission,  fifteen 
cents  for  each  folio.  No  fees  shall  be  charged  or  collected  for 
copies  of  papers,  records  or  official  documents,  furnished  to 
public  officers  for  use  in  their  official  capacity,  or  for  the  annual 
reports  of  the  commission  in  the  ordinary  course  of  distribution. 

89] 


§    19  APPENDIX   A 

All  fees  charged  and  collected  by  the  commission  of  the  first 
district  shall  belong  to  the  city  of  New  York,  and  shall  be  paid 
monthly,  accompanied  by  a  detailed  statement  thereof,  into 
the  treasury  of  the  city  to  the  credit  of  the  general  fund,  and  all 
fees  charged  and  collected  by  the  commission  of  the  second 
district  shall  belong  to  the  people  of  the  State,  and  shall  be  paid 
monthly,  accompanied  by  a  detailed  statement  thereof,  into 
the  treasury  of  the  State  to  the  credit  of  the  general  fund. 

§  19.  Attendance  of  Witnesses  and  Their  Fees.— 1.  All  sub- 
poenas shall  be  signed  and  issued  by  a  commissioner  or  by  the 
secretary  of  a  commission  and  may  be  served  by  any  person 
of  full  age.  The  fees  of  witnesses  required  to  attend  before  a 
commission,  or  a  commissioner,  shall  be  two  dollars  for  each 
day's  attendance,  and  five  cents  for  every  mile  of  travel  by  the 
nearest  generally  travelled  route  in  going  to  and  from  the  place 
where  attendance  of  the  witness  is  required,  such  fees  to  be  paid 
when  the  witness  is  excused  from  further  attendance ;  and  the 
disbursements  made  in  the  payment  of  such  fees  shall  be  audited 
and  paid  in  the  first  district  in  the  same  manner  provided  for  the 
payment  of  expenses  of  the  commission. 

2.  If  a  person  subpoenaed  to  attend  before  a  commission, 
or  a  commissioner  fails  to  obey  the  command  of  such  subpoena, 
without  reasonable  cause,  or  if  a  person  in  attendance  before  a 
commission,  or  commissioner,  shall,  without  reasonable  cause, 
refuse  to  be  sworn  or  to  be  examined  or  to  answer  a  question  or 
to  produce  a  book  or  papers,  when  ordered  so  to  do  by  the  com- 
mission, or  a  commissioner,  or  to  subscribe  and  swear  to  his 
deposition  after  it  has  been  correctly  reduced  to  writing,  he 
shall  be  guilty  of  a  misdemeanor  and  may  be  prosecuted  there- 
for in  any  court  of  competent  criminal  jurisdiction. 

If  a  person  in  attendance  before  a  commission  or  a  com- 
missioner refuses  without  reasonable  cause  to  be  examined  or 
to  answer  a  legal  and  pertinent  question  or  produce  a  book  or 
paper,  when  ordered  so  to  do  by  a  commission  or  a  commis- 
sioner, the  commission  may  apply  to  any  justice  of  the  Supreme 
Court  upon  proof  by  affidavit  of  the  facts  for  an  order  returnable 
892 


PUBLIC  SERVICE   COMMISSIONS  LAW  OF  NEW  YORK      §§   20,21 

in  not  less  than  two  nor  more  than  five  days  directing  such  par- 
son to  show  cause  before  the  justice  who  made  the  order,  or  any 
other  justice  of  the  Supreme  Court,  why  he  should  not  be  com- 
mitted to  jail;  upon  the  return  of  such  order  the  justice  before 
whom  the  matter  shall  come  on  for  hearing  shall  examine  under 
oath  such  person  whose  testimony  may  be  relevant,  and  such 
person  shall  be  given  an  opportunity  to  be  heard;  and  if  the 
justice  shall  determine  that  such  person  has  refused  without 
reasonable  cause  or  legal  excuse  to  be  examined;  or  to  answer  a 
legal  and  pertinent  question,  or  to  produce  a  book  or  paper 
which  he  was  ordered  to  bring,  he  may  forthwith,  by  warrant, 
commit  the  offender  to  jail,  there  to  remain  until  he  submits  to 
do  the  act  which  he  was  so  required  to  do  or  is  discharged  ac- 
cording to  law. 

§  20.  Practice  Before  the  Commissions;  Immunity  of 
Witnesses. — All  hearings  before  a  commission  or  a  commis- 
sioner, shall  be  governed  by  rules  to  be  adopted  and  prescribed 
by  the  commission.  And  in  all  investigations,  inquiries  or  hear- 
ings the  commission,  or  a  commissioner,  shall  not  be  bound  by 
the  technical  rules  of  evidence.  No  person  shall  be  excused 
from  testifying  or  from  producing  any  book  or  papers  in  any 
investigation  or  inquiry  by  or  upon  any  hearing  before  a  com- 
mission or  any  commissioner,  when  ordered  to  do  so  by  the 
commission,  upon  the  ground  that  the  testimony  or  evidence, 
books  or  documents  required  of  him  may  tend  to  incriminate 
him  or  subject  him  to  penalty  or  forfeiture,  but  no  person  shall 
be  prosecuted,  punished  or  subjected  to  any  penalty  or  forfeit- 
ure for  or  on  account  of  any  act,  transaction,  matter  or  thing 
concerning  which  he  shall  under  oath  have  testified  or  produced 
documentary  evidence;  provided,  however,  that  no  person  so 
testifying  shall  be  exempt  from  prosecution  or  punishment  for 
any  perjury  committed  by  him  in  his  testimony.  Nothing 
herein  contained  is  intended  to  give,  or  shall  be  construed  as  in 
any  manner  giving  unto  any  corporation  immunity  of  any  kini  I . 

§21.  Court  Proceedings;  Preferences. — All  actions  and 
proceedings  under  this  act,  and  all  actions  and  proceedings 

s'.i:; 


§§   22,   23  APPENDIX   A 

commenced  or  prosecuted  by  order  of  either  commission,  and 
all  actions  and  proceedings  to  which  either  commission  or  the 
people  of  the  State  of  New  York  may  be  parties,  and  in  which 
any  question  arises  under  this  act  or  under  the  railroad  law,  or 
under  or  concerning  any  order  or  action  of  the  commission,  shall 
be  preferred  over  all  other  civil  causes  except  election  causes  in 
all  courts  of  the  State  of  New  York  and  shall  be  heard  and  deter- 
mined in  preference  to  all  other  civil  business  pending  therein 
excepting  election  causes,  irrespective  of  position  on  the  calen- 
dar. The  same  preference  shall  be  granted  upon  application  of 
counsel  to  the  commission  in  any  action  or  proceeding  in  which 
he  may  be  allowed  to  intervene. 

§  22.  Rehearing  Before  Commission. — After  an  order  has 
been  made  by  a  commission  any  party  interested  therein  may 
apply  for  a  rehearing  in  respect  to  any  matter  determined 
therein,  and  the  commission  may  grant  and  hold  such  a  re- 
hearing if  in  its  judgment  sufficient  reason  therefor  be  made  to 
appear;  if  a  rehearing  shall  be  granted,  the  same  shall  be  deter- 
mined by  the  commission  within  thirty  days  after  the  same 
shall  be  finally  submitted.  An  application  for  such  a  rehearing 
shall  not  excuse  any  common  carrier,  railroad  corporation  or 
street  railroad  corporation  from  complying  with  or  obeying  any 
order  or  any  requirement  of  any  order  of  the  commission,  or 
operate  in  any  manner  to  stay  or  postpone  the  enforcement 
thereof  except  as  the  commission  may  by  order  direct.  If,  after 
such  rehearing  and  a  consideration  of  the  facts,  including  those 
arising  since  the  making  of  the  order,  the  commission  shall  be  of 
opinion  that  the  original  order  or  any  part  thereof  is  in  any 
respect  unjust  or  unwarranted,  the  commission  may  abrogate, 
change  or  modify  the  same.  An  order  made  after  any  such  re- 
hearing abrogating,  changing  or  modifying  the  original  order 
shall  have  the  same  force  and  effect  as  an  original  order  but 
shall  not  affect  any  right  or  the  enforcement  of  any  right  arising 
from  or  by  virtue  of  the  original  order. 

§  23.  Service  and  Effect  of  Orders.— Every  order  of  a  com- 
mission shall  be  served  upon  every  person  or  corporation  to  be 
894 


PUBLIC   SERVICE    COMMISSIONS   LAW   OF   NEW    YORK       §    23 

affected  thereby,  either  by  personal  delivery  of  a  certified  copy 
thereof,  or  by  mailing  a  certified  copy  thereof,  in  a  sealed  pack- 
age with  postage  prepaid,  to  the  person  to  be  affected  thereby 
or,  in  the  case  of  a  corporation,  to  any  officer  or  agent  thereof 
upon  whom  a  summons  may  be  served  in  accordance  with  the 
provisions  of  the  code  of  civil  procedure.  It  shall  be  the  duty 
of  every  person  and  corporation  to  notify  the  commission  forth- 
with, in  writing,  of  the  receipt  of  the  certified  copy  of  every 
order  so  served,  and  in  the  case  of  a  corporation  such  notification 
must  be  signed  and  acknowledged  by  a  person  or  officer  duly 
authorized  by  the  corporation  to  admit  such  service.  Within 
a  time  specified  in  the  order  of  the  commission  every  person 
and  corporation  upon  whom  it  is  served  must  if  so  required  in 
the  order  notify  the  commission  in  like  manner  whether  the 
terms  of  the  order  are  accepted  and  will  be  obeyed. 

Every  order  of  a  commission  shall  take  effect  at  a  time  therein 
specified  and  shall  continue  in  force  for  a  period  therein  desig- 
nated unless  earlier  modified  or  abrogated  by  the  commission  or 
unless  such  order  be  unauthorized  by  this  or  any  other  act  or  be 
in  violation  of  a  provision  of  the  constitution  of  the  State  or  of 
the  United  States. 

ARTICLE  II. 

PROVISIONS   RELATING   TO   RAILROADS,    STREET  RAILROADS    AND 
COMMON    CARRIERS. 

§  25.  Application  of  Article.  §  33.  Transportation  Prohibited  l*n- 

26.  Adequate    Service;    Just    and  til  Publication  of  Schedules; 

Reasonable  Charges.  Pates     as      Fixed     to     Be 

27.  Switch    and    Side-track    Con-  Charged;  Passes  Prohibited. 

nections;  Powers  of  Commis-  34.   False   Billing,  etc.,  by  Carrier 
sions.  or  Shipper. 

28.  Tariff  Schedules;    Publication.  35.  Discrimination         Prohibited; 

29.  Changes    in    Schedule;    Notice  Connecting  Lines. 

Required.  30.   Long  and  Shorl   Haul. 

30.  Concurrence   in   Joint  Tariffs;        37.   Distribution  of  Cars. 

Contracts,     Agreements     or  38.  Liability  for  Damage  to  I'rop- 
Arrangements  Between  any  erty  in  Transit. 

Carriers.  39.  Continuous   Carriage. 

31.  Unjust  Discrimination.  40.  Liability  for  Loss  or  Damage 

32.  Unreasonable  Preference.  by   Violation  of  This  Act. 

895 


§§   25-27  APPENDIX   A 

§  25.  Application  of  Article.— The  provisions  of  this  article 
shall  apply  to  the  transportation  of  passengers,  freight  or  prop- 
erty, from  one  point  to  another  within  the  State  of  New  York, 
and  to  any  common  carrier  performing  such  service. 

§  26.  Safe  and  Adequate  Service;  Just  and  Reasonable 
Charges.— Every  corporation,  person  or  common  carrier  per- 
forming a  service  designated  in  the  preceding  section,  shall 
furnish,  with  respect  thereto,  such  service  and  facilities  as  shall 
be  safe  and  adequate  and  in  all  respects  just  and  reasonable. 
All  charges  made  or  demanded  by  any  such  corporation,  person 
or  common  carrier  for  the  transportation  of  passengers,  freight 
or  property  or  for  any  service  rendered  or  to  be  rendered  in  con- 
nection therewith,  as  defined  in  section  two  of  this  act,  shall  be 
just  and  reasonable  and  not  more  than  allowed  by  law  or  by 
order  of  the  commission  having  jurisdiction  and  made  as  au- 
thorized by  this  act.  Every  unjust  or  unreasonable  charge 
made  or  demanded  for  any  such  service  or  transportation  of 
passengers,  freight  or  property  or  in  connection  therewith  or  in 
excess  of  that  allowed  by  law  or  by  order  of  the  commission  is 
prohibited. 

§  27.  Switch  and  Side-track  Connections ;  Powers  of  Com- 
missions.—1.  A  railroad  corporation,  upon  the  application 
of  any  shipper  tendering  traffic  for  transportation,  shall  con- 
struct, maintain  and  operate  upon  reasonable  terms  a  switch 
connection  or  connections  with  a  lateral  line  of  railroad  or  pri- 
vate side-track  owned,  operated  or  controlled  by  such  shipper, 
and  shall,  upon  the  application  of  any  shipper,  provide  upon  its 
own  property  a  side-track  and  switch  connection  with  its  line  of 
railroad,  whenever  such  sidetrack  and  switch  connection  is 
reasonably  practicable,  can  be  put  in  with  safety  and  the  busi- 
ness therefor  is  sufficient  to  justify  the  same. 

2.  If  any  railroad  corporation  shall  fail  to  install  or  operate 

any  such  switch  connection  with  a  lateral  line  of  railroad  or  any 

such  side-track  and  switch  connection  as  aforesaid,  after  written 

application  therefor  has  been  made  to  it,  any  corporation  or 

896 


PUBLIC   SERVICE    COMMISSIONS   LAW   OF   NEW   YORK       §   28 

person  interested  may  present  the  facts  to  the  commission  hav- 
ing jurisdiction  by  written  petition,  and  the  commission  shall 
investigate  the  matters  stated  in  such  petition,  and  give  such 
hearing  thereon  as  it  may  deem  necessary  or  proper.  If  the 
commission  be  of  opinion  that  it  is  safe  and  practicable  to  have 
a  connection,  substantially  as  prayed  for,  established  or  main- 
tained, and  that  the  business  to  be  done  thereon  justifies  the 
construction  and  maintenance  thereof,  it  shall  make  an  order 
directing  the  construction  and  establishment  thereof,  specifying 
the  reasonable  compensation  to  be  paid  for  the  construction, 
establishment  and  maintenance  thereof,  and  may  in  like  manner 
upon  the  application  of  the  railroad  corporation  order  the  dis- 
continuance of  such  switch  connection. 

§  28.  Tariff  Schedules;  Publication. — Every  common  car- 
rier shall  file  with  the  commission  having  jurisdiction  and  shall 
print  and  keep  open  to  public  inspection  schedules  showing  the 
rates,  fares  and  charges  for  the  transportation  of  passengers  and 
property  within  the  State- between  each  point  upon  its  route  and 
all  other  points  thereon ;  and  between  each  point  upon  its  route 
and  all  points  upon  every  route  leased,  operated  or  controlled  by 
it;  and  between  each  point  on  its  route  or  upon  any  route  leased, 
operated  or  controlled  by  it  and  all  points  upon  the  route  of 
any  other  common  carrier,  whenever  a  through  route  and  joint 
rate  shall  have  been  established  or  on  lend  between  any  two 
such  points.  If  no  joint  rate  over  a  through  route  has  been 
established,  the  several  carriers  in  such  through  route  shall  file, 
print  and  keep  open  to  public  inspection,  as  aforesaid,  the 
separately  established  rates,  fares  and  charges  applied  to  the 
through  transportation.  The  schedules  printed  as  aforesaid 
shall  plainly  state  the  places  between  which  property  and  pas- 
sengers will  be  carried,  and  shall  also  contain  the  classification 
of -passengers,  freight  or  property  in  force,  and  shall  also  state 
separately  all  terminal  charges,  storage  charges,  icing  charges, 
and  all  other  charges  which  the  commission  may  require  to  be 
stated,  all  privileges  or  facilities  granted  or  allowed,  and  any 
rules  or  regulations  which  may  in  any  wise  change,  affect  or  de- 
57  897 


§   29  APPENDIX   A 

termine  any  part,  or  the  aggregate  of,  such  aforesaid  rates,  fares 
and  charges,  or  the  value  of  the  service  rendered  to  the  pas- 
senger, shipper  or  consignee.  Such  schedules  shall  be  plainly 
printed  in  large  type;  copies  thereof  for  the  use  of  the  public 
shall  be  kept  posted  in  two  public  and  conspicuous  places  in 
every  depot,  station  and  office  of  every  common  carrier  where 
passengers  or  property  are  received  for  transportation,  in  such 
manner  as  to  be  readily  accessible  to  and  conveniently  in- 
spected by  the  public.  The  form  of  every  such  schedule  shall 
be  prescribed  by  the  commission  and  shall  conform  as  nearly  as 
possible  to  the  form  of  schedule  required  by  the  Interstate  Com- 
merce Commission  under  the  act  of  Congress,  entitled:  "An  act 
to  regulate  commerce,"  approved  February  fourth,  eighteen 
hundred  and  eighty-seven,  as  amended  by  act  approved  June 
twenty-ninth,  nineteen  hundred  and  six,  and  other  amendments 
thereto.  Where  any  similar  schedule  is  required  by  law  to  be 
filed  with  both  commissions  they  shall  agree  upon  an  identical 
form  for  such  schedule.  The  commission  shall  have  power 
from  time  to  time,  in  its  discretion,  to  determine  and  prescribe 
by  order  such  changes  in  the  form  of  such  schedules  as  may  be 
found  expedient. 

§  29.  Changes  in  Schedule ;  Notice  Required. — Unless  the 
commission  otherwise  orders  no  change  shall  be  made  in  any 
rate,  fare  or  change,  or  joint  rate,  fare  or  charge,  which  shall 
have  been  filed  and  published  by  a  common  carrier  in  com- 
pliance with  the  requirements  of  this  act,  except  after  thirty 
days'  notice  to  the  commission  and  publication  for  thirty  days 
as  required  by  section  twenty-eight  of  this  act,  which  shall 
plainly  state  the  changes  proposed  to  be  made  in  the  schedule 
then  in  force,  and  the  time  when  the  changed  rate,  fare  or 
charge  will  go  into  effect;  and  all  proposed  changes  shall  be 
shown  by  printing,  riling  and  publishing  new  schedules  or  shall 
be  plainly  indicated  upon  the  schedules  in  force  at  the  time  and 
kept  open  to  public  inspection.  The  commission,  for  good 
cause  shown,  may  allow  changes  in  rates  without  requiring  the 
thirty  days'  notice  and  publication  herein  provided  for,  by  duly 
898 


PUBLIC   SERVICE    COMMISSIONS    LAW   OF   NEW    YORK       §§    30-32 

filing  and  publishing  in  such  manner  as  it  may  direct  an  order 
specifying  the  change  so  made  and  the  time  when  it  shall  take 
effect ;  all  such  changes  shall  be  immediately  indicated  upon  its 
schedules  by  the  common  carrier. 

§  30.  Concurrence  in  Joint  Tariffs;  Contracts,  Agree- 
ments or  Arrangements  Between  any  Carriers.— 1.  The  names 
of  the  several  carriers  which  are  parties  to  any  joint  tariff  shall 
be  specified  therein,  and  each  of  the  parties  thereto,  other  than 
the  one  filing  the  same,  shall  file  with  the  commission  such  evi- 
dence of  concurrence  therein  or  acceptance  thereof  as  may  be 
required  or  approved  by  the  commission;  and  where  such  evi- 
dence of  concurrence  or  acceptance  is  filed,  it  shall  not  be  neces- 
sary for  the  carriers  filing  the  same  also  to  file  copies  of  the 
tariffs  in  which  they  are  named  as  parties. 

2.  Every  common  carrier  shall  file  with  the  commission  sworn 
copies  of  every  contract,  agreement  or  arrangement  with  any 
other  common  carrier  or  common  carriers  relating  in  an)'  way 
to  the  transportation  of  passengers,  property  or  freight. 

§  31.  Unjust  Discrimination.— No  common  carrier  shall, 
directly  or  indirectly,  by  any  special  rate,  rebate,  drawback,  or 
other  device  or  method,  charge,  demand,  collect  or  receive  from 
any  person  or  corporation  a  greater  or  less  compensation  for  any 
service  rendered  or  to  be  rendered  in  the  transportation  of  pas- 
sengers, freight  or  property,  except  as  authorized  in  this  act, 
than  it  charges,  demands,  collects  or  receives  from  any  other 
person  or  corporation  for  doing  a  like  and  contemporaneous 
service  in  the  transportation  of  a  like  kind  of  traffic  under  the 
same  or  substantially  similar  circumstances  and  conditions. 

§  32.  Unreasonable  Preference. — No  common  carrier  shall 
make  or  give  any  undue  or  unreasonable  preference  or  ad- 
vantage to  any  person  or  corporal  ion  or  to  any  locality  or  to 
any  particular  description  of  traffic  in  any  respect  whatsoever, 
or  subjeel  any  particular  person  or  corporation  or  locality  or 
any  particular  description  of  traffic,  to  any  prejudice  or  dis- 
advantage in  any  respect  whatsoever. 

S99 


§   33  APPENDIX   A 

§  33.  Transportation    Prohibited    Until    Publication    of 
Schedules ;  Rates  as  Fixed  to  Be  Charged ;  Passes  Prohibited. 

— No  common  carrier  subject  to  the  provisions  of  this  act  shall 
after  the  first  day  of  November,  nineteen  hundred  and  seven, 
engage  or  participate  in  the  transportation  of  passengers, 
freight  or  property,  between  points  within  the  State,  until  its 
schedules  of  rates,  fares  and  charges  shall  have  been  filed  and 
published  in  accordance  with  the  provisions  of  this  act.  No 
common  carrier  shall  charge,  demand,  collect  or  receive  a 
greater  or  less  or  different  compensation  for  transportation  of 
passengers,  freight  or  property,  or  for  any  service  in  connection 
therewith,  than  the  rates,  fares  and  charges  applicable  to  such 
transportation  as  specified  in  its  schedules  filed  and  in  effect  at 
the  time;  nor  shall  any  such  carrier  refund  or  remit  in  any 
manner  or  by  any  device  any  portion  of  the  rates,  fares  or 
charges  so  specified,  nor  extend  to  any  shipper  or  person  any 
privileges  or  facilities  in  the  transportation  of  passengers  or 
property  except  such  as  are  regularly  and  uniformly  extended 
to  all  persons  and  corporations  under  like  circumstances.  No 
common  carrier  subject  to  the  provisions  of  this  act  shall,  di- 
rectly or  indirectly,  issue  or  give  any  free  ticket,  free  pass  or 
free  transportation  for  passengers  or  property  between  points 
within  this  State,  except  to  its  officers,  employees,  agents, 
pensioners,  surgeons,  physicians,  attorneys-at-law,  and  their 
families;  to  ministers  of  religion,  officers  and  employees  of  rail- 
road young  men's  Christian  associations,  inmates  of  hospitals, 
charitable  and  eleemosynary  institutions  and  persons  exclu- 
sively engaged  in  charitable  and  eleemosynary  work;  and  to 
indigent,  destitute  and  homeless  persons  and  to  such  persons 
when  transported  by  charitable  societies  or  hospitals,  and  the 
necessary  agents  employed  in  such  transportation ;  to  inmates  of 
the  national  homes  or  state  homes  for  disabled  volunteer  soldiers 
and  of  soldiers'  and  sailors'  homes,  including  those  about  to 
enter  and  those  returning  home  after  discharge,  and  boards  of 
managers  of  such  homes ;  to  necessary  caretakers  of  property  in 
transit;  to  employees  of  sleeping-car  companies,  express  com- 
panies, telegraph  and  telephone  companies  doing  business  along 
900 


PUBLIC   SERVICE    COMMISSIONS    LAW   OF   NEW   YORK       §   33 

the  line  of  the  issuing  carrier,  to  railway  mail  service  employees, 
post-office  inspectors,  customs  inspectors  and  immigration  in- 
spectors; to  newsboys  on  trains,  baggage  agents,  witnesses  at- 
tending any  legal  investigation  or  proceeding  in  which  the  com- 
mon carrier  is  interested,  persons  injured  in  accidents  or  wrecks 
and  physicians  and  nurses  attending  such  persons;  to  the 
carriage  free  or  at  reduced  rates  of  persons  or  property  for  the 
United  States,  state  or  municipal  governments,  or  of  property 
to  or  from  fairs  and  expositions  for  exhibit  thereat.  Nothing 
in  this  act  shall  be  construed  to  prohibit  the  interchange  of  free 
or  reduced  transportation  between  common  carriers  of  or  for 
their  officers,  agents,  employees,  attorneys  and  surgeons  and 
their  families,  nor  to  prohibit  any  common  carrier  from  carrying 
passengers  or  property  free,  with  the  object  of  providing  relief 
in  cases  of  general  epidemic,  pestilence  or  other  calamitous  visi- 
tation; nor  to  prohibit  any  common  carrier  from  transporting 
persons  or  property  as  incident  to  or  connected  with  contracts 
for  construction,  operation  or  maintenance,  and  to  the  extent 
only  that  such  free  transportation  is  provided  for  in  the  con- 
tract for  such  work. 

Provided  further,  that  nothing  in  this  act  shall  prevent  the 
issuance  of  mileage,  excursion,  or  commutation  passenger  tick- 
ets, or  joint  interchangeable  mileage  tickets,  with  special  priv- 
ileges as  to  the  amount  of  free  baggage  that  may  be  carried 
under  mileage  tickets  of  one  thousand  miles  or  more.  But  bo- 
fore  any  common  carrier,  subject  to  the  provision  of  this  act, 
shall  issue  any  such  mileage,  excursion,  commutation  passenger 
ticket  or  joint  interchangeable  mileage  ticket,  with  special 
privileges  as  aforesaid,  it  shall  file  with  the  commission  copies 
of  the  tariffs  of  rates,  fares  or  charges  on  which  such  tickets  are 
to  be  based,  together  with  the  specifications  of  the  amount  of 
free  baggage  permitted  to  be  carried  under  such  joint  inter- 
changeable  mileage  ticket,  in  the  same  manner  as  common 
carriers  are  required  to  do  with  regard  to  other  rates  by  this 
act.  Nor  shall  anything  in  this  act  prevent  the  issuance  of  pas- 
senger transportation  in  exchange  for  advertising  space  in 
newspapers  at  full  rates. 

901 


§§   34,    35  APPENDIX   A 

§  34.  False  Billing,  etc.,  by  Carrier  or  Shipper. — No  com- 
mon carrier  or  any  officer  or  agent  thereof  or  any  person  acting 
for  or  employed  by  it,  shall  assist,  suffer  or  permit  any  person 
or  corporation  to  obtain  transportation  for  any  passenger, 
freight  or  property  between  points  within  this  State  at  less  than 
the  rates  then  established  and  in  force  in  accordance  with  the 
schedules  filed  and  published  in  accordance  with  the  provisions 
of  this  act,  by  means  of  false  billing,  false  classification,  false 
weight  or  weighing,  or  false  report  of  weight,  or  by  any  other 
device  or  means.  No  person,  corporation  or  any  officer,  agent 
or  employee  of  a  corporation,  who  shall  deliver  freight  or  prop- 
erty for  transportation  within  the  State  to  a  common  carrier, 
shall  seek  to  obtain  or  obtain  such  transportation  for  such  prop- 
erty at  less  than  the  rates  then  established  and  in  force  there- 
for, as  aforesaid,  by  false  billing,  false  or  incorrect  classification, 
false  weight  or  weighing,  false  representation  of  the  contents  of 
a  package,  or  false  report  or  statement  of  weight,  or  by  any 
other  device  or  means,  whether  with  or  without  the  consent  or 
connivance  of  the  common  carrier,  or  any  of  its  officers,  agents 
or  employees. 

§  35.  Discrimination    Prohibited;    Connecting    Lines. — 

Every  common  carrier  is  required  to  afford  all  reasonable, 
proper  and  equal  facilities  for  the  interchange  of  passenger, 
freight  and  property  traffic  between  the  lines  owned,  operated, 
controlled  or  leased  by  it  and  the  lines  of  every  common  carrier, 
and  for  the  prompt  transfer  of  passengers  and  for  the  prompt 
receipt  and  forwarding  of  freight  and  property  to  and  from  its 
said  lines;  and  no  common  carrier  shall  in  any  manner  dis- 
criminate in  respect  to  rates,  fares  or  charges  or  in  respect  to  any 
service  or  in  respect  to  any  charges  or  facilities  for  any  such 
transfer  in  receiving  or  forwarding  between  any  two  or  more 
other  common  carriers  or  between  passengers,  freight  or  prop- 
erty destined  to  points  upon  the  lines  of  any  two  or  more  other 
common  carriers  or  in  any  respect  with  reference  to  passengers, 
freight  or  property  transferred  or  received  from  any  two  or 
more  other  common  carriers.  This  section  shall  not  be  con- 
902 


PUBLIC   SERVICE    COMMISSIONS   LAW   OF  NEW   YORK        §    36 

strued  to  require  a  common  carrier  to  permit  or  allow  any  other 
common  carrier  to  use  its  tracks  or  terminal  facilities.  Every 
common  carrier,  as  such,  is  required  to  receive  from  every  other 
common  carrier,  at  a  connecting  point,  freight  cars  of  proper 
standard,  and  haul  the  same  through  to  destination,  if  the 
destination  be  upon  a  line  owned,  operated  or  controlled  by 
such  common  carrier,  or  if  the  destination  be  upon  a  line  of 
some  other  common  carrier,  to  haul  any  car  so  delivered  through 
to  the  connecting  point  upon  the  line  owned,  operated,  con- 
trolled or  leased  by  it,  by  way  of  route  over  which  such  car  is 
billed,  and  there  to  deliver  the  same  to  the  next  connecting 
carrier.  Nothing  in  this  section  shall  be  construed  as  in  any- 
wise limiting  or  modifying  the  duty  of  a  common  carrier  to 
establish  joint  rates,  fares  and  charges  for  the  transportation 
of  passengers,  freight  and  property  over  the  lines  owned,  oper- 
ated, controlled  and  leased  by  it  and  the  lines  of  other  common 
carriers,  nor  as  in  any  manner  limiting  or  modifying  the  power 
of  the  commission  to  require  the  establishment  of  such  joint 
rates,  fares  and  charges.  A  railroad  corporation  and  a  street 
railroad  corporation  shall  not  be  required  to  interchange  cars 
except  on  such  terms  and  conditions  as  the  commission  may 
direct. 

§  36.  Long  and  Short  Haul. — No  common  carrier,  subject 
to  the  provisions  of  this  act,  shall  charge  or  receive  any  greater 
compensation  in  the  aggregate  for  the  transportation  of  pas- 
sengers or  of  a  like  kind  of  property,  under  substantially  similar 
circumstances  and  conditions,  for  a  shorter  than  for  a  longer 
distance  over  the  same  line  in  the  same  direction,  the  shorter 
being  included  within  the  longer  distance;  but  this  shall  not  be 
construed  as  authorizing  any  such  common  carrier  to  charge 
and  receive  as  great  a  compensation  for  a  shorter  as  for  a  longer 
distance  or  haul.  Upon  application  of  a  common  carrier  the 
commission  may  by  order  authorize  it  to  charge  less  for  longer 
than  for  shorter  distances  for  the  transportation  of  passengers 
or  property  in  special  cases  after  investigation  by  (lie  com- 
mission, but  the  order  must  specify  and  prescribe  the  extent  to 

903 


§§    37,    38  APPENDIX    A 

which  the  common  carrier  making  such  application  is  relieved 
from  the  operation  of  this  section,  and  only  to  the  extent  so 
specified  and  prescribed  shall  any  common  carrier  be  relieved 
from  the  operation  and  requirements  of  this  section. 

§  37.  Distribution  of  Cars.— 1.  Every  railroad  corporation 
or  other  common  carrier  engaged  in  the  transportation  of 
freight  shall,  upon  reasonable  notice,  furnish  to  all  persons  and 
corporations  who  may  apply  therefor,  and  offer  freight  for 
transportation,  sufficient  and  suitable  cars  for  the  transporta- 
tion of  such  freight  in  car-load  lots.  Every  railroad  corpo- 
ration and  street  railroad  corporation  shall  have  sufficient  cars 
and  motive  power  to  meet  all  requirements  for  the  transporta- 
tion of  passengers  and  property  which  may  reasonably  be 
anticipated,  unless  relieved  therefrom  by  order  of  the  commis- 
sion. In  case,  at  any  particular  time,  a  common  carrier  has  not 
sufficient  cars  to  meet  all  requirements  for  the  transportation 
of  property  in  car-load  lots,  all  cars  available  to  it  for  such  pur- 
poses shall  be  distributed  among  the  several  applicants  there- 
for, without  discrimination  between  shippers,  localities  or  com- 
petitive or  non-competitive  points,  but  preference  may  always 
be  given  in  the  supply  of  cars  for  shipment  of  livestock  or 
perishable  property. 

2.  The  commission  shall  have  power  to  make,  and  by  order 
shall  make,  reasonable  regulations  for  the  furnishing  and  dis- 
tribution of  freight  cars  to  shippers,  for  the  switching  of  the 
same,  for  the  loading  and  unloading  thereof,  for  demurrage 
charges  in  respect  thereto,  and  for  the  weighing  of  cars  and 
freight  offered  for  shipment  or  transported  by  any  common 
carrier. 

§  38.  Liability   for   Damage    to   Property   in   Transit. — 

Every  common  carrier  and  every  railroad  corporation  and 
street  railroad  corporation  shall,  upon  demand,  issue  either  a 
receipt  or  bill  of  lading  for  all  property  delivered  to  it  for  trans- 
portation. No  contract,  stipulation  or  clause  in  any  receipt  or 
bill  of  lading  shall  exempt  or  be  held  to  exempt  any  common 
904 


PUBLIC   SERVICE    COMMISSIONS    LAW   OF   NEW   YORK        §    39 

carrier,  railroad  corporation  or  street  railroad  corporation  from 
any  liability  for  loss,  damage  or  injury  caused  by  it  to  freight  or 
property  from  the  time  of  its  delivery  for  transportation  until 
the  same  shall  have  been  received  at  its  destination  and  a 
reasonable  time  shall  have  elapsed  after  notice  to  consignee  of 
such  arrival  to  permit  of  the  removal  of  such  freight  or  prop- 
erty. Every  common  carrier,  railroad  corporation  and  street 
railroad  corporation  shall  be  liable  for  all  loss,  damage  or  in- 
jury to  property  caused  by  delay  in  transit  due  to  negligence 
while  the  same  is  being  carried  by  it,  but  in  any  action  to  re- 
cover for  damages  sustained  by  delay  in  transit  the  burden  of 
proof  shall  be  upon  the  defendant  to  show  that  such  delay  was 
not  due  to  negligence.  Every  common  carrier  and  railroad 
corporation  shall  be  liable  for  loss,  damage  and  injury  to  prop- 
erty carried  as  baggage  up  to  the  full  value  and  regardless  of  the 
character  thereof,  but  the  value  in  excess  of  one  hundred  and 
fifty  dollars  shall  be  stated  upon  delivery  to  the  carrier,  and  a 
written  receipt  stating  the  value  shall  be  issued  by  the  carrier, 
who  may  make  a  reasonable  charge  for  the  assumption  of  such 
liability  in  excess  of  one  hundred  and  fifty  dollars  and  for  the 
carriage  of  baggage  exceeding  one  hundred  and  fifty  pounds  in 
weight  upon  a  single  ticket.  Nothing  in  this  section  shall  de- 
prive any  holder  of  such  receipt  or  bill  of  lading  of  any  remedy 
or  right  of  action  which  he  has  under  existing  law. 

§  39.  Continuous  Carriage. — No  common  carrier  shall  enter 
into  or  become  a  party  to  any  combination,  contract,  agree- 
ment or  understanding,  written  or  oral,  express  or  implied,  to 
prevent  by  any  arrangement  or  by  change  of  arrangement  of 
time  schedule,  by  carriage  in  different  cars  or  by  any  other 
means  or  device  whatsoever  the  carriage  of  freight  am  1  pro]  »er1  y 
from  being  continuous  from  the  place  of  shipment  to  the  place 
of  destination.  No  breakage  of  bulk,  stoppage  or  interruption 
of  carriage  made  by  any  common  carrier  skull  prevenl  the 
carriage  of  freight  and  property  from  being  treated  as  one  con- 
tinuous carriage  from  the  place  of  shipment  to  the  place  of 
destination.    Nor  shall  any  such  breakage  of  bulk,  stoppage  or 

905 


§   40  APPENDIX   A 

interruption  of  carriage  be  made  or  permitted  by  any  common 
carrier  except  it  be  done  in  good  faith  for  a  necessary  purpose 
without  intention  to  avoid  or  unnecessarily  interrupt  or  delay 
the  continuous  carriage  of  such  freight  or  property  or  to  evade 
any  of  the  provisions  of  law,  of  this  act  or  of  an  order  of  the  com- 
mission. 

§  40.  Liabilty  for  Loss  or  Damage  Caused  by  Violation 
of  This  Act. — In  case  a  common  carrier  shall  do,  cause  to  be 
done  or  permit  to  be  done  any  act,  matter  or  thing  prohibited, 
forbidden  or  declared  to  be  unlawful,  or  shall  omit  to  do  any 
act,  matter  or  thing  required  to  be  done,  either  by  any  law  of  the 
State  of  New  York,  by  this  act  or  by  an  order  of  the  commission, 
such  common  carrier  shall  be  liable  to  the  persons  or  corpo- 
rations affected  thereby  for  all  loss,  damage  or  injury  caused 
thereby  or  resulting  therefrom,  and  in  case  of  recovery,  if  the 
court  shall  find  that  such  act  or  omission  was  willful,  it  may  in 
its  discretion  fix  a  reasonable  counsel  or  attorney's  fee,  which 
fee  shall  be  taxed  and  collected  as  part  of  the  costs  in  the  case. 
An  action  to  recover  for  such  loss,  damage  or  injury  may  be 
brought  in  any  court  of  competent  jurisdiction  by  any  such 
person  or  corporation. 

ARTICLE  III. 

PROVISIONS  RELATING  TO  THE  POWERS  OF  THE  COMMISSIONS  IN 

RESPECT    TO    COMMON    CARRIERS,    RAILROADS    AND    STREET 

RAILROADS. 

§  45.  General  Powers  and  Duties  of  §  51.  Power  of  Commissions  to  Order 

Commissions  in  Respect  to  Changes  in  Time  Schedules; 

Common  Carriers,  Railroads  Running  of  Additional  Cars 

and  Street  Railroads.  and  Trains. 

46.  Reports  of  Common  Carriers,  52.  Uniform  System  of  Accounts; 

Railroad    Corporations    and  Access    to    Accounts,    etc.; 

Street     Railroad     Corpora-  Forfeitures. 

tions.  53.  Franchises  and  Privileges. 

47.  Investigation  of  Accidents.  54.  Transfer     of     Franchises      or 

48.  Investigations  by  Commission.  Stocks. 

49.  Rates  and  Service  to  Be  Fixed  55.  Approval  of  Issues  of  Stock, 

by  the  Commissions.  Bonds  and  Other  Forms  of 

50.  Power  of  Commissions  to  Order  Indebtedness. 

Repairs  or  Changes.  56.  Forfeiture;  Penalties. 

906 


PUBLIC   SERVICE    COMMISSIONS    LAW   OF    NEW    YORK       §   45 

§  57.  Summary  Proceedings.  §  59.  Action  to  Recover  Penalties  or 

58.  Penalties  for  Other  Than  Com-  Forfeitures. 

mon  Carriers.  60.  Duties  of  Commissions  as  to 

Interstate  Traffic. 

§  45.  General  Powers  and  Duties  of  Commissions  in  Re- 
spect to  Common  Carriers,  Railroads  and  Street  Railroads.— 

1.  Each  commission  and  each  commissioner  shall  have  power 
and  authority  to  administer  oaths,  in  all  parts  of  the  State,  to 
witnesses  summoned  to  testify  in  any  inquiry,  investigation, 
hearing  or  proceeding;  and  also  to  administer  oaths  in  all  parts 
of  the  State  whenever  the  exercise  of  such  power  is  incidentally 
necessary  or  proper  to  enable  the  commission  or  a  commis- 
sioner to  perform  a  duty  or  to  exercise  a  power. 

2.  Each  commission  shall  have  the  general  supervision  of  all 
common  carriers,  railroads,  street  railroads,  railroad  corpora- 
tions and  street  railroad  corporations  within  its  jurisdiction  as 
hereinbefore  defined,  and  shall  have  power  to  and  shall  examine 
the  same  and  keep  informed  as  to  their  general  condition,  their 
capitalization,  their  franchises  and  the  manner  in  which  their 
lines,  owned,  leased,  controlled  or  operated,  are  managed,  con- 
ducted and  operated,  not  only  with  respect  to  the  adequacy, 
security  and  accommodation  afforded  by  their  service,  but  also 
with  respect  to  their  compliance  with  all  provisions  of  law, 
orders  of  the  commission  and  charter  requirements. 

3.  Each  commission  and  each  commissioner  shall  have  power 
to  examine  all  books,  contracts,  records,  documents  and  papers 
of  any  person  or  corporation  subject  to  its  supervision,  and  by 
subpcena  duces  tecum  to  compel  production  thereof.  In  lieu  of 
requiring  production  of  originals  by  subpcena  duces  tecum,  the 
commission  or  any  commissioner  may  require  sworn  copies  of 
any  such  books,  records,  contracts,  documents  and  papers  or 
parts  thereof  to  be  filed  with  it. 

4.  Either  commission  shall  conduct  a  hearing  and  take  testi- 
mony as  to  the  advisability  of  any  proposed  change  of  law  re- 
lating to  any  common  carrier,  railroad  corporation  or  street 
railroad  corporation,  if  requested  to  do  so  by  the  legislature,  by 
the  senate  or  assembly  committee  on  railroads,  or  by  the  gov- 

907 


§    46  APPENDIX   A 

ernor,  and  may  conduct  such  a  hearing,  when  requested  to  do 
so  by  any  person  or  corporation,  and  shall  report  its  conclusions 
to  the  officer,  body,  person  or  corporation  at  whose  request  the 
hearing  was  held.  The  commission  may  also  recommend  the 
enactment  of  such  legislation,  with  respect  to  any  matter  within 
its  jurisdiction,  as  it  deems  wise  or  necessary  in  the  public  in- 
terest, and  may  draft  or  cause  to  be  drafted  such  bills  or  acts  as 
it  may  deem  necessary  or  proper  to  enact  into  law  the  legisla- 
tion recommended  by  it. 

§  46.  Reports  of  Common  Carriers,  Railroad  Corpora- 
tions and  Street  Railroad  Corporations. — Each  commission 
shall  prescribe  the  form  of  the  annual  reports  required  under 
this  act  to  be  made  by  common  carriers,  railroad  and  street 
railroad  corporations,  and  may  from  time  to  time  make  such 
changes  therein  and  additions  thereto  as  it  may  deem  proper; 
provided,  however,  that  if  any  such  changes  or  additions  re- 
quire any  alteration  in  the  method  or  form  of  keeping  the  ac- 
counts of  such  corporations,  the  commission  shall  give  to  them 
at  least  six  months'  notice  before  the  expiration  of  any  fiscal 
year  of  any  such  changes  or  additions,  and  on  or  before  June 
thirtieth,  in  each  year,  shall  furnish  a  blank  form  for  such  re- 
port. The  contents  of  such  report  and  the  form  thereof  shall 
conform  as  near  as  may  be  to  that  required  of  common  carriers 
under  the  provisions  of  the  act  of  congress,  entitled  "An  act  to 
regulate  commerce,"  approved  February  fourth,  eighteen  hun- 
dred and  eighty-seven,  and  the  act  amendatory  thereof  ap- 
proved June  twenty-ninth,  nineteen  hundred  and  six,  and 
other  amendments  thereto.  The  commission  may  require  such 
report  to  contain  information  in  relation  to  rates  or  regulations 
concerning  fares  or  freights,  agreements  or  contracts  affecting 
the  same,  so  far  as  such  rates  or  regulations  pertain  to  trans- 
portation within  the  State.  When  the  report  of  any  such  cor- 
poration is  defective,  or  believed  to  be  erroneous,  the  commis- 
sion shall  notify  the  corporation  to  amend  the  same  within 
thirty  days.  The  originals  of  the  reports,  subscribed  and  sworn 
to  as  prescribed  by  law,  shall  be  preserved  in  the  office  of  the 
908 


PUBLIC  SERVICE   COMMISSIONS   LAW  OF  NEW  YORK       §   47 

commission.  The  commission  may  also  require  such  corpo- 
rations to  file  monthly  reports  of  earnings  and  expenses  within 
a  specified  time.  The  commission  may  require  of  all  such  cor- 
porations specific  answers  to  questions  upon  which  the  com- 
mission may  need  information.  The  annual  report  required  to 
be  filed  by  a  common  carrier,  railroad  or  street  railroad  corpo- 
ration shall  be  so  filed  on  or  before  the  thirtieth  day  of  Septem- 
ber in  each  year.  The  commission  may  extend  the  time  for 
making  and  filing  such  report  for  a  period  not  exceeding  sixty 
days.  If  such  corporation  shall  fail  to  make  and  file  the  annual 
report  within  the  time  above  specified  or  within  the  time  as 
extended  by  the  commission,  or  shall  fail  to  make  specific  an- 
swer to  any  question,  or  shall  fail  to  make  the  monthly  reports 
when  required  by  the  commission  as  herein  provided,  within 
thirty  days  from  the  time  when  it  is  required  to  make  and  file 
any  such  report  or  answer,  such  corporation  shall  forfeit  to  the 
State  the  sum  of  one  hundred  dollars  for  each  and  every  day 
it  shall  continue  to  be  in  default  with  respect  to  such  report  or 
answer.  Such  forfeiture  shall  be  recovered  in  an  action  brought 
by  the  commission  in  the  name  of  the  people  of  the  State  of  New 
York.  The  amount  recovered  in  any  such  action  shall  be  paid 
into  the  state  treasury  and  credited  to  the  general  fund.  Any 
railroad  corporation  operating  a  line  partly  within  the  second 
district  and  partly  within  the  first  district  shall  report  to  the 
commission  of  the  second  district;  but  the  commission  of  the 
first  district  may,  upon  reasonable  notice,  require  a  special  re- 
port from  such  railroad  corporation.  Any  street  railroad  corpo- 
ration operating  a  line  partly  within  the  first  district  and  partly 
within  the  second  district  shall  report  to  the  commission  of  the 
first  district;  but  the  commission  of  the  second  district  may, 
upon  reasonable  notice,  require  a  special  report  from  such  street 
railroad  corporation. 

§  47.  Investigation  of  Accidents. — Each  commission  shall 
investigate  the  cause  of  all  accidents  on  any  railroad  or  street 
railroad  within  its  district  which  result  in  loss  of  life  or  injury 
to  persons  or  property,  and  which  in  its  judgment  shall  require 

909 


§  48  APPENDIX   A 

investigation.  Every  common  carrier,  railroad  corporation 
and  street  railroad  corporation  is  hereby  required  to  give  im- 
mediate notice  to  the  commission  of  every  accident  happening 
upon  any  line  of  railroad  or  street  railroad  owned,  operated, 
controlled  or  leased  by  it,  within  the  territory  over  which  such 
commission  has  jurisdiction  in  such  manner  as  the  commission 
may  direct.  Such  notice  shall  not  be  admitted  as  evidence  or 
used  for  any  purpose  against  such  common  carrier,  railroad 
corporation  or  street  railroad  corporation  giving  such  notice  in 
any  suit  or  action  for  damages  growing  out  of  any  matter  men- 
tioned in  said  notice. 

§48.  Investigations  by  Commission. — 1.  Each  commission 
may,  of  its  own  motion,  investigate  or  make  inquiry,  in  a  man- 
ner to  be  determined  by  it,  as  to  any  act  or  thing  done  or 
omitted  to  be  done  by  any  common  carrier,  railroad  corporation 
or  street  railroad  corporation,  subject  to  its  supervision,  and 
the  commission  must  make  such  inquiry  in  regard  to  any  act  or 
thing  done  or  omitted  to  be  done  by  any  such  common  carrier, 
railroad  corporation  or  street  railroad  corporation  in  violation 
of  any  provision  of  law  or  in  violation  of  any  order  of  the  com- 
mission. 

2.  Complaints  may  be  made  to  the  proper  commission  by  any 
person  or  corporation  aggrieved,  by  petition  or  complaint  in 
writing  setting  forth  any  thing  or  act  done  or  omitted  to  be  done 
by  any  common  carrier,  railroad  corporation  or  street  railroad 
corporation  in  violation,  or  claimed  to  be  in  violation,  of  any 
provision  of  law  or  of  the  terms  and  conditions  of  its  franchise 
or  charter  or  of  any  order  of  the  commission.  Upon  the  presen- 
tation of  such  a  complaint  the  commission  shall  cause  a  copy 
thereof  to  be  forwarded  to  the  person  or  corporation  complained 
of,  accompanied  by  an  order,  directed  to  such  person  or  corpo- 
ration, requiring  that  the  matters  complained  of  be  satisfied,  or 
that  the  charges  be  answered  in  writing  within  a  time  to  be 
specified  by  the  commission.  If  the  person  or  corporation  com- 
plained of  shall  make  reparation  for  any  injury  alleged  and  shall 
cease  to  commit,  or  to  permit,  the  violation  of  law,  franchise  or 
910 


PUBLIC  SERVICE   COMMISSIONS   LAW   OF  NEW   YORK      §   49 

order  charged  in  the  complaint,  and  shall  notify  the  commission 
of  that  fact  before  the  time  allowed  for  answer,  the  commission 
need  take  no  further  action  upon  the  charges.  If,  however,  the 
charges  contained  in  such  petition  be  not  thus  satisfied,  and  it 
shall  appear  to  the  commission  that  there  are  reasonable 
grounds  therefor,  it  shall  investigate  such  charges  in  such  man- 
ner and  by  such  means  as  it  shall  deem  proper,  and  take  such 
action  within  its  powers  as  the  facts  justify. 

3.  Whenever  either  commission  shall  investigate  any  matter 
complained  of  by  any  person  or  corporation  aggrieved  by  any 
act  or  omission  of  a  common  carrier,  railroad  corporation  or 
street  railroad  corporation  under  this  section  it  shall  be  its  duty 
to  make  and  file  an  order  either  dismissing  the  petition  or  com- 
plaint or  directing  the  common  carrier,  railroad  corporation  or 
street  railroad  corporation  complained  of  to  satisfy  the  cause  of 
complaint  in  whole  or  to  the  extent  which  the  commission  may 
specify  and  require. 

§  49.  Rates  and  Service  to  Be  Fixed  by  the  Commis- 
sion.— Whenever  either  commission  shall  be  of  opinion,  after  a 
hearing,  upon  a  complaint  made  as  provided  in  this  act,  that 
the  rates,  fares  or  charges  demanded,  exacted,  charged  or  col- 
lected by  any  common  carrier,  railroad  corporation  or  street 
railroad  corporation  subject  to  its  jurisdiction  for  the  trans- 
portation of  persons,  freight  or  property  within  the  State,  or 
that  the  regulations  or  practices  of  such  common  carrier,  rail- 
road corporation  or  street  railroad  corporation  affecting  such 
rates  are  unjust,  unreasonable,  unjustly  discriminatory  or  un- 
duly preferential,  or  in  anywise  in  violation  of  any  provision  of 
law,  the  commission  shall  determine  the  just  and  reasonable 
rates,  fares  and  charges  to  be  thereafter  observed  and  in  force  as 
the  maximum  to  be  charged  for  the  service  to  be  performed,  and 
shall  fix  the  same  by  order  to  be  served  upon  all  common  car- 
riers, railroad  corporations  or  street  railroad  corporations  by 
whom  such  rates,  fares  and  charges  are  thereafter  to  be  ob- 
served. And  whenever  the  commission  shall  be  of  opinion, 
after  a  hearing,  had  upon  its  own  motion  or  upon  complaint, 

911 


§    50  APPENDIX   A 

that  the  regulations,  practices,  equipment,  appliances,  or  service 
of  any  such  common  carrier,  railroad  corporation  or  street  rail- 
road corporation  in  respect  to  transportation  of  persons,  freight 
or  property  within  the  State  are  unjust,  unreasonable,  unsafe, 
improper  or  inadequate,  the  commission  shall  determine  the 
just,  reasonable,  safe,  adequate  and  proper  regulations,  prac- 
tices, equipment,  appliances  and  service  thereafter  to  be  in 
force,  to  be  observed  and  to  be  used  in  such  transportation  of 
persons,  freight  and  property  and  so  fix  and  prescribe  the  same 
by  order  to  be  served  upon  every  common  carrier,  railroad 
corporation  and  street  railroad  corporation  to  be  bound  thereby; 
and  thereafter  it  shall  be  the  duty  of  every  common  carrier, 
railroad  corporation  and  street  railroad  corporation  to  observe 
and  obey  each  and  every  requirement  of  every  such  order  so 
served  upon  it,  and  to  do  everything  necessary  or  proper  in 
order  to  secure  absolute  compliance  with  and  observance  of 
every  such  order  by  all  its  officers,  agents  and  employees.  The 
commission  shall  have  power  by  order  to  require  any  two  or 
more  common  carriers  or  railroad  corporations  whose  lines, 
owned,  operated,  controlled  or  leased,  form  a  continuous  line 
of  transportation  or  could  be  made  to  do  so  by  the  construction 
and  maintenance  of  switch  connection,  to  establish  through 
routes  and  joint  rates,  fares  and  charges  for  the  transportation 
of  passengers,  freight  and  property  within  the  State  as  the  com- 
mission may,  by  its  order,  designate;  and  in  case  such  through 
routes  and  joint  rates  be  not  established  by  the  common  carriers 
or  railroad  corporations  named  in  any  such  order  within  the 
time  therein  specified,  the  commission  shall  establish  just  and 
reasonable  rates,  fares  and  charges  to  be  charged  for  such 
through  transportation,  and  declare  the  portion  thereof  to 
which  each  common  carrier  or  railroad  corporation  affected 
thereby  shall  be  entitled  and  the  manner  in  which  the  same 
shall  be  paid  and  secured. 

§  50.  Power  of  Commissions  to  Order  Repairs  or  Changes. 

— If,  in  the  judgment  of  the  commission  having  jurisdiction,  re- 
pairs or  improvements  to  or  changes  in  any  tracks,  switches, 
912 


PUBLIC   SERVICE    COMMISSIONS    LAW   OF   NEW   YORK       §    51 

terminals  or  terminal  facilities,  motive  power,  or  any  other  prop- 
erty or  device  used  by  any  common  carrier,  railroad  corporation 
or  street  railroad  corporation  in  or  in  connection  with  the  trans- 
portation of  passengers,  freight  or  property  ought  reasonably 
to  be  made,  or  that  any  additions  should  reasonably  be  made 
thereto,  in  order  to  promote  the  security  or  convenience  of  the 
public  or  employees,  or  in  order  to  secure  adequate  service  or 
facilities  for  the  transportation  of  passengers,  freight  or  prop- 
erty, the  commission  shall,  after  a  hearing  either  on  its  own 
motion  or  after  complaint,  make  and  serve  an  order  directing 
such  repairs,  improvements,  changes  or  additions  to  be  made 
within  a  reasonable  time  and  in  a  manner  to  be  specified  therein, 
and  every  common  carrier,  railroad  corporation  and  street  rail- 
road corporation  is  hereby  required  and  directed  to  make  all 
repairs,  improvements,  changes  and  additions  required  of  it  by 
any  order  of  the  commission  served  upon  it. 

§  51.  Power  of  Commissions  to  Order  Changes  in  Time 
Schedules ;  Running  of  Additional  Cars  and  Trains.— If,  in  the 
judgment  of  the  commission  having  jurisdiction,  any  railroad 
corporation  or  street  railroad  corporation  does  not  run  trains 
enough  or  cars  enough  or  possess  or  operate  motive  power 
enough,  reasonably  to  accommodate  the  traffic,  passenger  and 
freight,  transported  by  or  offered  for  transportation  to  it,  or 
docs  not  run  its  trains  or  cars  with  sufficient  frequency  or  at  a 
reasonable  or  proper  time  having  regard  to  safety,  or  does  not 
run  any  train  or  trains,  car  or  cars,  upon  a  reasonable  time 
schedule  for  the  run,  the  commission  shall,  after  a  hearing  either 
on  its  own  motion  or  after  complaint,  have  power  to  make  an 
order  directing  any  such  railroad  corporation  or  street  railroad 
corporation  to  increase  the  number  of  its  trains  or  of  its  cars  or 
its  motive  power  or  to  change  the  time  for  starting  its  trains  or 
cars  or  to  change  the  time  schedule  for  the  run  of  any  train  or 
car  or  make  any  other  suitable  order  thai  the  commission  may 
determine  reasonably  necessary  to  accommodate  and  transporl 
the  traffic,  passenger  or  freight ,  transported  or  offered  for  trans- 
portation. 

58  913 


§§   52,  53  APPENDIX   A 

§  52.  Uniform  System  of  Accounts;  Access  to  Accounts, 
etc.;  Forfeitures. — Each  commission  may,  whenever  it  deems 
advisable,  establish  a  uniform  system  of  accounts  to  be  used  by 
railroad  and  street  railroad  corporations  or  other  common 
carriers  which  are  subject  to  its  supervision,  and  may  prescribe 
the  manner  in  which  such  accounts  shall  be  kept.  It  may  also 
in  its  discretion  prescribe  the  forms  of  accounts,  records  and 
memoranda  to  be  kept  by  such  corporations,  including  the  ac- 
counts, records  and  memoranda  of  the  movement  of  traffic  as 
well  as  the  receipts  and  expenditures  of  moneys.  The  system 
of  accounts  established  by  the  commission  and  the  forms  of  ac- 
counts, records  and  memoranda  prescribed  by  it  as  provided 
above  shall  conform  as  near  as  may  be  to  those  from  time 
to  time  established  and  prescribed  by  the  interstate  commerce 
commission  under  the  provisions  of  the  act  of  congress  entitled 
"An  act  to  regulate  commerce"  approved  February  fourth, 
eighteen  hundred  and  eighty-seven,  as  amended  by  the  act  ap- 
proved June  twenty-ninth,  nineteen  hundred  and  six,  and 
amendments  thereto.  The  commission  shall  at  all  times  have 
access  to  all  accounts,  records  and  memoranda  kept  by  railroad 
and  street  railroad  corporations  and  may  prescribe  the  accounts 
in  which  particular  outlays  and  receipts  shall  be  entered,  and  may 
designate  any  of  its  officers  or  employees  who  shall  thereupon 
have  authority  under  the  order  of  the  commission  to  inspect  and 
examine  any  and  all  accounts,  records  and  memoranda  kept 
by  such  corporations.  Where  the  commission  has  prescribed 
the  forms  of  accounts,  records  and  memoranda  to  be  kept  by 
such  corporations  it  shall  be  unlawful  for  them  to  keep  any 
other  accounts,  records  or  memoranda  than  those  so  prescribed, 
or  those  prescribed  by  or  under  authority  of  the  United  States. 
Any  employee  or  agent  of  the  commission  who  divulges  any  fact 
or  information  which  may  come  to  his  knowledge  during  the 
course  of  any  such  inspection  or  examination  except  in  so  far  as 
he  may  be  directed  by  the  commission,  or  by  a  court  or  judge 
thereof,  or  authorized  by  law,  shall  be  guilty  of  a  misdemeanor. 

§  53.  Franchises  and  Privileges. — Without  first  having  ob- 
914 


PUBLIC   SERVICE    COMMISSIONS   LAW   OF   NEW   YORK       §   54 

tained  the  permission  and  approval  of  the  proper  commission 
no  railroad  corporation,  street  railroad  corporation  or  common 
carrier  shall  begin  the  construction  of  a  railroad  or  street  rail- 
road, or  any  extension  thereof,  for  which  prior  to  the  time  when 
this  act  becomes  a  law  a  certificate  of  public  convenience  and 
necessity  shall  not  have  been  granted  by  the  board  of  railroad 
commissioners  or  where  prior  to  said  time  said  corporation  or 
common  carrier  shall  not  have  become  entitled  by  virtue  of  its 
compliance  with  the  provisions  of  the  railroad  law  to  begin 
such  construction;  nor,  except  as  above  provided  in  this  sec- 
tion, shall  any  such  corporation  or  common  carrier  exercise  any 
franchise  or  right  under  any  provision  of  the  railroad  law,  or  of 
any  other  law,  not  heretofore  lawfully  exercised,  without  first 
having  obtained  the  permission  and  approval  of  the  proper 
commission.  The  commission  within  whose  district  such  con- 
struction is  to  be  made,  or  within  whose  district  such  franchise 
or  right  is  to  be  exercised,  shall  have  power  to  grant  the  per- 
mission and  approval  herein  specified  whenever  it  shall  after 
due  hearing  determine  that  such  construction  or  such  exercise 
of  the  franchise  or  privilege  is  necessary  or  convenient  for  the 
public  service.  And  if  such  construction  is  to  be  made,  or  such 
franchise  to  be  exercised  in  both  districts,  the  approval  of  both 
commissions  shall  be  secured. 

§  54.  Transfer  of  Franchises  or  Stocks. — No  franchise  nor 
any  right  to  or  under  any  franchise,  to  own  or  operate  a  rail- 
road or  street  railroad  shall  be  assigned,  transferred  or  leased, 
nor  shall  any  contract  or  agreement  with  reference  to  or  affect- 
ing any  such  franchise  or  right  be  valid  or  of  any  force  or  effect 
whatsoever,  unless  the  assignment,  transfer,  lease,  contract  or 
agreement  shall  have  been  approved  by  the  proper  commission. 
The  permission  and  approval  of  the  commission,  to  the  exercise 
of  a  franchise  under  section  fifty-three,  or  to  the  assignment, 
transfer  or  lease  of  a  franchise  under  this  section  shall  not  be 
construed  to  revive  or  validate  any  lapsed  or  invalid  franchise, 
or  to  enlarge  or  add  to  the  powers  and  privileges  contained  in 
the  grant  of  any  franchise,  or  to  waive  any  forfeiture. 

915 


§    55  APPENDIX    A 

No  railroad  corporation,  or  street  railroad  corporation,  do- 
mestic or  foreign,  shall  hereafter  purchase  or  acquire,  take  or 
hold,  any  part  of  the  capital  stock  of  any  railroad  corporation 
or  street  railroad  corporation  or  other  common  carrier  organized 
or  existing  under  or  by  virtue  of  the  laws  of  this  State,  unless 
authorized  so  to  do  by  the  commission  empowered  by  this  act 
to  give  such  consent;  and  save  where  stock  shall  be  transferred 
or  held  for  the  purpose  of  collateral  security  only  with  the  con- 
sent of  the  commission  empowered  by  this  act  to  give  such  con- 
sent, no  stock  corporation  of  any  description,  domestic  or 
foreign,  other  than  a  railroad  corporation  or  street  railroad  cor- 
poration, shall  purchase  or  acquire,  take  or  hold,  more  than  ten 
per  centum  of  the  total  capital  stock  issued  by  any  railroad  cor- 
poration or  street  railroad  corporation  or  other  common  carrier 
organized  or  existing  under  or  by  virtue  of  the  laws  of  this  State. 
Nothing  herein  contained  shall  be  construed  to  prevent  the  hold- 
ing of  stock  heretofore  lawfully  acquired.  Every  contract,  as- 
signment, transfer  or  agreement  for  transfer  of  any  stock  by  or 
through  any  person  or  corporation  to  any  corporation,  in  viola- 
tion of  any  provision  of  this  act,  shall  be  void  and  of  no  effect, 
and  no  such  transfer  or  assignment  shall  be  made  upon  the 
books  of  any  such  railroad  corporation  or  street  railroad  cor- 
poration, or  shall  be  recognized  as  effective  for  any  purpose. 
The  power  conferred  by  this  section  to  approve  or  disapprove  a 
transaction  relating  to  franchises,  rights  or  stock  of  any  railroad 
corporation  or  street  railroad  corporation,  or  other  common 
carrier,  shall  be  exercised  by  the  commission  which  is  author- 
ized by  this  act  to  approve  the  issue  of  stock  by  such  railroad 
corporation  or  street  railroad  'corporation. 

§  55.  Approval  of  Issues  of  Stock,  Bonds  and  Other 
Forms  of  Indebtedness. — A  common  carrier,  railroad  corpora- 
tion or  street  railroad  corporation  organized  or  existing,  or  here- 
after incorporated,  under  or  by  virtue  of  the  laws  of  the  State 
of  New  York,  may  issue  stocks,  bonds,  notes  or  other  evidence 
of  indebtedness  payable  at  periods  of  more  than  twelve  months 
after  the  date  thereof,  when  necessary  for  the  acquisition  of 
916 


PUBLIC  SERVICE   COMMISSIONS   LAW   OF   NEW  YORK      §   55 

property,  the  construction,  completion,  extension  or  improve- 
ment of  its  facilities,  or  for  the  improvement  or  maintenance  of 
its  service  or  for  the  discharge  or  lawful  refunding  of  its  obliga- 
tions, provided  and  not  otherwise  that  there  shall  have  been 
secured  from  the  proper  commission  an  order  authorizing  such 
issue,  and  the  amount  thereof  and  stating  that,  in  the  opinion  of 
the  commission,  the  use  of  the  capital  to  be  secured  by  the  issue 
of  such  stock,  bonds,  notes  or  other  evidence  of  indebtedness  is 
reasonably  required  for  the  said  purposes  of  the  corporation, 
but  this  provision  shall  not  apply  to  any  lawful  issue  of  stock, 
to  the  lawful  execution  and  delivery  of  any  mortgage  or  to  the 
lawful  issue  of  bonds  thereunder,  which  shall  have  been  duly  ap- 
proved by  the  board  of  railroad  commissioners  before  the  time 
when  this  act  becomes  a  law.  For  the  purpose  of  enabling  it  to 
determine  whether  it  should  issue  such  an  order,  the  commission 
shall  make  such  inquiry  or  investigation,  hold  such  hearings 
and  examine  such  witnesses,  books,  papers,  documents  or  con- 
tracts as  it  may  deem  of  importance  in  enabling  it  to  reach  a 
determination.  Such  common  carrier,  railroad  corporation  or 
street  railroad  corporation  may  issue  notes,  for  proper  corporate 
purposes  and  not  in  violation  of  any  provision  of  this  or  any 
other  act,  pa3'ablc  at  periods  of  not  more  than  twelve  months 
without  such  consent,  but  no  such  notes  shall,  in  whole  or  in 
part,  directly  or  indirectly  be  refunded  by  any  issue  of  stock  or 
bonds  or  by  any  evidence  of  indebtedness  running  for  more  than 
twelve  months  without  the  consent  of  the  proper  commission. 
Provided,  however,  that  the  commission  shall  have  no  power  to 
authorize  the  capitalization  of  any  franchise  to  be  a  corporation 
or  to  authorize  the  capitalization  of  any  franchise  or  the  right 
to  own,  operate  or  enjoy  any  franchise  whatsoever  in  excess  of 
the  amount  (exclusive  of  any  tax  or  annual  charge)  actually 
paid  to  the  Stale  or  to  a  political  subdivision  thereof  as  the  con- 
sideration for  the  grant  of  such  franchise  or  righl ;  nor  shall  the 
capita]  slock  of  a  corporation  formed  by  the  merger  or  consoli- 
dation of  two  or  more  other  corporations,  exceed  the  sum  of  the 
capital  stock  of  the  corporations  so  consolidated,  a1  the  par 
value  thereof,  or  such  sum  and  any  additional  sum  actually  paid 

917 


§   56  APPENDIX   A 

in  cash ;  nor  shall  any  contract  for  consolidation  or  lease  be  cap- 
italized in  the  stock  of  any  corporation  whatever;  nor  shall  any 
corporation  hereafter  issue  any  bonds  against  or  as  a  lien  upon 
any  contract  for  consolidation  or  merger.  Whenever  it  shall 
happen  that  any  railroad  corporation  shall  own  or  operate  its 
lines  in  both  districts  it  shall,  under  this  section,  apply  to  the 
commission  of  the  second  district.  Whenever  it  shall  happen 
that  any  street  railroad  corporation  shall  own  or  operate  its 
lines  in  both  districts,  it  shall,  under  this  section,  apply  to  the 
commission  of  the  first  district.  Any  other  common  carrier  not 
operating  exclusively  in  the  first  district  shall  apply  to  the  com- 
mission of  the  second  district. 

§  56.  Forfeiture ;  Penalties. — 1.  Every  common  carrier,  rail- 
road corporation  and  street  railroad  corporation,  and  all  officers 
and  agents  of  any  common  carrier,  railroad  corporation  or 
street  railroad  corporation  shall  obey,  observe  and  comply  with 
every  order  made  by  the  commission,  under  authority  of  this 
act,  so  long  as  the  same  shall  be  and  remain  in  force.  Any 
common  carrier,  railroad  corporation  or  street  railroad  cor- 
poration which  shall  violate  any  provision  of  this  act,  or  which 
fails,  omits  or  neglects  to  obey,  observe  or  comply  with  any 
order  or  any  direction  or  requirement  of  the  commission,  shall 
forfeit  to  the  people  of  the  State  of  New  York  not  to  exceed 
the  sum  of  five  thousand  dollars  for  each  and  every  offense; 
every  violation  of  any  such  order  or  direction  or  requirement, 
or  of  this  act,  shall  be  a  separate  and  distinct  offense,  and, 
in  case  of  a  continuing  violation,  every  day's  continuance 
thereof  shall  be  and  be  deemed  to  be  a  separate  and  distinct 
offense. 

2.  Every  officer  and  agent  of  any  such  common  carrier  or  cor- 
poration who  shall  violate,  or  who  procures,  aids  or  abets  any 
violation  by  any  such  common  carrier  or  corporation,  of  any 
provision  of  this  act,  or  who  shall  fail  to  obey,  observe  and  com- 
ply with  any  order  of  the  commission  or  any  provision  of  an 
order  of  the  commission,  or  who  procures,  aids  or  abets  any  such 
common  carrier  or  corporation  in  its  failure  to  obey,  observe  and 
918 


PUBLIC   SERVICE   COMMISSIONS   LAW   OF   NEW   YORK       §§    57,  58 

comply  with  any  such  order  or  provision,  shall  be  guilty  of  a 
misdemeanor. 

§  57.  Summary  Proceedings. — Whenever  either  commission 
shall  be  of  opinion  that  a  common  carrier,  railroad  corporation 
or  street  railroad  corporation  subject  to  its  supervision  is  failing 
or  omitting  or  about  to  fail  or  omit  to  do  anything  required  of 
it  by  law  or  by  order  of  the  commission,  or  is  doing  anything  or 
about  to  do  anything  or  permitting  anything  or  about  to  permit 
anything  to  be  done,  contrary  to  or  in  violation  of  law  or  of  any 
order  of  the  commission,  it  shall  direct  counsel  to  the  commis- 
sion to  commence  an  action  or  proceeding  in  the  Supreme  Court 
of  the  State  of  New  York  in  the  name  of  the  commission  for  the 
purpose  of  having  such  violations  or  threatened  violations 
stopped  and  prevented  either  by  mandamus  or  injunction. 
Counsel  to  the  commission  shall  thereupon  begin  such  action  or 
proceeding  by  a  petition  to  the  Supreme  Court  alleging  the  viola- 
tion complained  of  and  praying  for  appropriate  relief  by  way  of 
mandamus  or  injunction.  It  shall  thereupon  be  the  duty  of  the 
court  to  specify  the  time  not  exceeding  twenty  days  after  serv- 
ice of  a  copy  of  the  petition,  within  which  the  common  carrier, 
railroad  corporation  or  street  railroad  corporation  complained 
of  must  answer  the  petition.  In  case  of  default  in  answer  or 
after  answer,  the  court  shall  immediately  inquire  into  the  facts 
and  circumstances  in  such  manner  as  the  court  shall  direct  with- 
out other  or  formal  pleadings,  and  without  respect  to  any  tech- 
nical requirement.  Such  other  persons  or  corporations  as  the 
court  shall  deem  necessary  or  proper  to  join  as  parties  in  order 
to  make  its  order,  judgment  or  writs  effective,  may  be  joined  as 
parties  upon  application  of  counsel  to  the  commission.  The 
final  judgment  in  any  such  action  or  proceeding  shall  either  dis- 
miss the  action  or  proceeding  or  dired  thai  a  writ  of  mandamus 
or  an  injunction  or  both  issue  as  prayed  for  in  the  petition  or  in 
such  modified  or  other  form  as  the  court  may  determine  will 
afford  appropriate  relief. 

§  58.  Penalties  for  Other  Than  Common  Carriers.  -1 .  Any 

919 


§   59  APPENDIX    A 

corporation,  other  than  a  common  carrier,  railroad  corporation 
or  street  railroad  corporation,  which  shall  violate  any  provision 
of  this  act,  or  shall  fail  to  obey,  observe  and  comply  with  every 
order  made  by  the  commission  under  authority  of  this  act,  so 
long  as  the  same  shall  be  and  remain  in  force,  shall  forfeit  to 
the  people  of  the  State  of  New  York  a  sum  not  exceeding  one 
thousand  dollars  for  each  and  every  offense ;  every  such  violation 
shall  be  a  separate  and  distinct  offense,  and  the  penalty  or  for- 
feiture thereof  shall  be  recovered  in  an  action  as  provided  in 
section  fifty-nine  of  this  act. 

2.  Every  person  who,  either  individually  or  acting  as  an 
officer  or  agent  of  a  corporation  other  than  a  common  carrier, 
railroad  corporation  or  street  railroad  corporation,  shall  violate 
any  provision  of  this  act  or  fail  to  obey,  observe  or  comply  with 
any  order  made  by  the  commission  under  this  act,  so  long  as  the 
same  shall  be  or  remain  in  force,  or  who  shall  procure,  aid  or 
abet  any  such  corporation  in  its  violation  of  this  act  or  in  its 
failure  to  obey,  observe  or  comply  with  an)7  such  order,  shall  be 
guilty  of  a  misdemeanor. 

3.  In  construing  and  enforcing  the  provisions  of  this  act  re- 
lating to  forfeitures  and  penalties  the  act  of  any  director,  officer 
or  other  person  acting  for  or  employed  by  any  common  carrier, 
railroad  corporation,  street  railroad  corporation  or  corporation, 
acting  within  the  scope  of  his  official  duties  or  employment,  shall 
be  in  every  case  and  be  deemed  to  be  the  act  of  such  common 
carrier,  railroad  corporation,  street  railroad  corporation  or  cor- 
poration. 

§  59.  Action  to  Recover  Penalties  or  Forfeitures. — An  ac- 
tion to  recover  a  penalty  or  a  forfeiture  under  this  act  may  be 
brought  in  any  court  of  competent  jurisdiction  in  this  State  in 
the  name  of  the  people  of  the  State  of  New  York,  and  shall  be 
commenced  and  prosecuted  to  final  judgment  by  counsel  to  the 
commission.  In  any  such  action  all  penalties  and  forfeitures 
incurred  up  to  the  time  of  commencing  the  same  may  be  sued 
for  and  recovered  therein,  and  the  commencement  of  an  action 
to  recover  a  penalty  or  forfeiture  shall  not  be,  or  be  held  to  be,  a 
920 


PUBLIC   SERVICE    COMMISSIONS    LAW    OF   NEW   YORK       §    60 

waiver  of  the  right  to  recover  any  other  penalty  or  forfeiture; 
if  the  defendant  in  such  action  shall  prove  that  during  any 
portion  of  the  time  for  which  it  is  sought  to  recover  penalties 
or  forfeitures  for  a  violation  of  an  order  of  the  commission  the 
defendant  was  actually  and  in- good  faith  prosecuting  a  suit, 
action  or  proceeding  in  the  courts  to  set  aside  such  order,  the 
court  shall  remit  the  penalties  or  forfeitures  incurred  during  the 
pendency  of  such  suit,  action  or  proceeding.  All  moneys  re- 
covered in  any  such  action,  together  with  the  costs  thereof, 
shall  be  paid  into  the  state  treasury  to  the  credit  of  the  general 
fund. 

§  60.  Duties  of  Commissions  as  to  Interstate  Traffic. — 
Either  commission  may  investigate  freight  rates  on  interstate 
traffic  on  railroads  within  the  State,  and  when  such  rates  are,  in 
the  opinion  of  either  commission,  excessive  or  discriminatory  or 
are  levied  or  laid  in  violation  of  the  interstate  commerce  law,  or 
in  conflict  with  the  rulings,  orders  or  regulations  of  the  inter- 
state commerce  commission,  the  commission  may  apply  by 
petition  to  the  interstate  commerce  commission  for  relief  or 
may  present  to  the  interstate  commerce  commission  all  facts 
coming  to  its  knowledge,  as  to  violations  of  the  rulings,  orders 
or  regulations  of  that  commission  or  as  to  violations  of  the  in- 
terstate commerce  law. 

ARTICLE  IV. 

PROVISIONS  RELATING  TO  GAS  AND   ELECTRICAL  CORPORATIONS; 
REGULATION   OF   PRICE   OF  GAS  AND   ELECTRICITY. 

§  G5.  Application  of  Articles.  Bonds  and  Other  Forms  of 

66.  General    Powers    of    Commis-  Indebtedness. 

in  Respect  to  Gas  and    §  70.  Approval  of  Transfer  of  Fran- 
Electricity,  chises. 

67.  Inspection  of  Gas  and  Electric        71.  Complaints  as  to  Quality  and 

Meters.  Price  of  Cms  arid  Kledricity; 

68.  Approval  of  Incorporation  and  Investigation    by    Commis- 

Francl ;  Certificate.  sion;  Forms  of  Complaints. 

69.  Approval    of    Issue   of   Stock,       72.  Notice    and     Hearing;    Order 

92] 


§§    65,    66  APPENDIX    A 

Fixing  Price  of  Gas  or  Elec-  §  74.  Summary  Proceedings, 

tricity,    or    Requiring    Im-  75.  Defense  in  Case  of  Excessive 

provements.  Charge  for  Gas  or  Electricity. 

§  73.  Forfeiture  for  Noncompliance  76.  Jurisdiction. 

With  Order.  77.  Powers  of  Local  Officers. 

§  65.  Application  of  Article.— This  article  shall  apply  to 
the  manufacture  and  furnishing  of  gas  for  light,  heat  or  power 
and  the  furnishing  of  natural  gas  for  light,  heat  or  power,  and 
the  generation,  furnishing  and  transmission  of  electricity  for 
light,  heat  or  power. 

§  66.  General  Powers  of  Commissions  in  Respect  to  Gas 
and  Electricity. — Each  commission  shall  within  its  jurisdic- 
tion : 

1.  Have  the  general  supervision  of  all  persons  and  corpora- 
tions having  authority  under  any  general  or  special  law  or  under 
any  charter  or  franchise  to  lay  down,  erect  or  maintain  wires, 
pipes,  conduits,  ducts  or  other  fixtures  in,  over  or  under  the 
streets,  highways  and  public  places  of  any  municipality,  for  the 
purpose  of  furnishing  or  distributing  gas  or  of  furnishing  or 
transmitting  electricity  for  light,  heat  or  power,  or  maintain- 
ing underground  conduits  or  ducts  for  electrical  conductors. 

2.  Investigate  and  ascertain,  from  time  to  time,  the  quality 
of  gas  supplied  by  persons,  corporations  and  municipalities; 
examine  the  methods  employed  by  such  persons,  corporations 
and  municipalities  in  manufacturing  and  supplying  gas  or 
electricity  for  light,  heat  or  power  and  in  transmitting  the  same, 
and  have  power  to  order  such  improvements  as  will  best  pro- 
mote the  public  interest,  preserve  the  public  health  and  protect 
those  using  such  gas  or  electricity  and  those  employed  in  the 
manufacture  and  distribution  thereof,  or  in  maintenance  and 
operation  of  the  works,  wires,  poles,  lines,  conduits,  ducts  and 
systems  maintained  in  connection  therewith. 

3.  Have  power  to  fix  the  standard  of  illuminating  power  and 
purity  of  gas,  not  less  than  that  prescribed  by  law,  to  be  manu- 
factured or  sold  by  persons,  corporations  or  municipalities  for 
lighting,  heating  or  power  purposes,  and  to  prescribe  methods 
of  regulation  of  the  electric  supply  system  as  to  the  use  for  in- 

922 


PUBLIC   SERVICE    COMMISSIONS    LAW    OF    NEW    YORK       §    66 

candescent  lighting  and  fix  the  initial  efficiency  of  incandescent 
lamps  furnished  by  the  persons,  corporations  or  municipalities 
generating  and  selling  electric  current  for  lighting,  and  by  order 
to  require  the  gas  so  manufactured  or  sold  to  equal  the  standard 
so  fixed  by  it,  and  to  establish  the  regulations  as  to  pressure  at 
which  gas  shall  be  delivered.  For  the  purpose  of  determining 
whether  the  gas  sold  by  such  persons,  corporations  or  munic- 
ipalities for  lighting,  heating  or  power  purposes  conforms  to 
the  standard  of  illuminating  power  and  purity  and,  of  its  own 
motion,  examine  and  investigate  the  methods  employed  in 
manufacturing,  delivering  and  supplying  the  gas  so  sold,  and 
shall  have  access  through  its  members  or  persons  employed  and 
authorized  by  it  to  make  such  examinations  and  investigations 
to  all  parts  of  the  manufacturing  plants  owned,  used  or  operated 
for  the  manufacture  or  distribution  of  gas  by  any  such  person, 
corporation  or  municipality.  Any  employee  or  agent  of  the 
commission  who  divulges  any  fact  or  information  which  may 
come  to  his  knowledge  during  the  course  of  any  such  inspection 
or  examination,  except  in  so  far  as  he  may  be  directed  by  the 
commission,  or  by  a  court  or  judge  thereof,  or  authorized  In- 
law, shall  be  guilty  of  a  misdemeanor. 

4.  Have  power,  in  its  discretion,  to  prescribe  uniform  methods 
of  keeping  accounts,  records  and  books,  to  be  observed  by  the 
persons,  corporations  and  municipalities  engaged  in  the  manu- 
facture, sale  and  distribution  of  gas  and  electricity  for  light, 
heat  or  power. 

5.  Examine  all  persons,  corporations  and  municipalities  un- 
der its  supervision,  keep  informed  as  to  the  methods  employed 
by  them  in  the  transaction  of  their  business  and  sec  that  their 
property  is  maintained  and  operated  for  the  security  and  ac- 
commodation of  the  public  and  in  compliance  with  the  j di- 
visions of  law  and  of  their  franchise-  and  charters. 

6.  Require  every  person  and  corporation  under  its  super- 
vision to  submit  to  it  an  annual  report,  verified  by  the  <>ath  of 
the  president,  treasurer,  or  general  manager  thereof,  showing 
in  detail  (1)  the  amount  of  it-  authorized  capital  stock  and  the 
amount  thereof  issued  and  outstanding;  (2)  the  amount  <>!'  its 

923 


§   66  APPENDIX   A 

authorized  bonded  indebtedness  and  the  amount  of  its  bonds 
and  other  forms  of  evidence  of  indebtedness  issued  and  out- 
standing; (3)  its  receipts  and  expenditures  during  the  pre- 
ceding year;  (4)  the  amount  paid  as  dividends  upon  its  stock 
and  as  interest  upon  its  bonds;  (5)  the  name  of,  and  the  amount 
paid  as  salary  to  each  officer  and  the  amount  paid  as  wages  to 
its  employees;  (6)  the  location  of  its  plant  or  plants  and  system, 
with  a  full  description  of  its  property  and  franchises,  stating  in 
detail  how  each  franchise  stated  to  be  owned  was  acquired,  and 
(7)  such  other  facts  pertaining  to  the  operation  and  mainte- 
nance of  the  plant  and  system,  and  the  affairs  of  such  person  or 
corporation  as  may  be  required  by  the  commission.  Such  re- 
ports shall  be  in  the  form,  cover  the  period  and  be  submitted  at 
the  time  prescribed  by  the  commission.  The  commission  may, 
from  time  to  time,  make  changes  and  additions  in  such  forms, 
giving  to  the  persons,  corporations  and  municipalities  six 
months'  notice  before  the  time  fixed  by  the  commission  as  the 
expiration  of  the  fiscal  year  of  any  changes  or  additions  which 
would  require  any  alteration  in  the  method  or  form  of  keeping 
their  accounts  for  the  ensuing  year.  When  any  such  report  is 
defective  or  believed  to  be  erroneous,  the  commission  shall 
notify  the  person,  corporation  or  municipality  making  such  re- 
port to  amend  the  same  within  thirty  days.  Any  such  person 
or  corporation  or  municipality  which  shall  neglect  to  make  any 
such  report  within  the  time  specified  by  the  commission,  or 
which  shall  fail  to  correct  any  such  report  within  thirty  days 
after  notice,  shall  be  liable  to  a  penalty  of  one  hundred  dollars 
and  an  additional  penalty  of  one  hundred  dollars  for  each  day 
after  the  prescribed  time  for  which  it  shall  neglect  to  file  or 
correct  the  same,  to  be  sued  for  in  the  name  of  the  people  of  the 
State  of  New  York.  The  amount  recovered  in  any  such  action 
shall  be  paid  into  the  state  treasury  and  be  credited  to  the 
general  fund.  The  commission  may  extend  the  time  herein 
limited  for  cause  shown. 

7.  Require  each  municipality  engaged  in  operating  any  works 
or  systems  for  the  manufacture  and  supplying  of  gas  or  elec- 
tricity to  make  an  annual  report  to  the  commission,  verified  by 
924 


PUBLIC   SERVICE    COMMISSIONS   LAW   OF   NEW   YORK       §   67 

the  oath  of  the  general  manager  or  superintendent  thereof, 
showing  in  detail,  (1)  the  amount  of  its  authorized  bonded  in- 
debtedness and  the  amount  of  its  bonds  and  other  forms  of 
evidence  of  indebtedness  issued  and  outstanding  for  lighting 
purposes;  (2)  its  receipts  and  expenditures  during  the  preceding 
year ;  (3)  the  amount  paid  as  interest  upon  its  bonds  and  upon 
other  forms  of  evidence  of  indebtedness;  (4)  the  name  of  and 
the  amount  paid  to  each  person  receiving  a  yearly  or  monthly 
salary,  and  the  amount  paid  as  wages  to  employees;  (5)  the 
location  of  its  plant  and  system  with  a  full  description  of  the 
property,  and  (6)  such  other  facts  pertaining  to  the  operation 
and  maintenance  of  the  plant  and  system,  as  may  be  required 
by  the  commission.  Such  report  shall  be  in  the  form,  cover  the 
period  and  be  submitted  at  the  time  prescribed  by  the  com- 
mission. 

8.  Have  power,  either  through  its  members  or  inspectors  or 
employees  duly  authorized  by  it,  to  enter  in  or  upon  and  to 
inspect  the  property,  buildings,  plants,  factories,  power  houses 
and  offices  of  any  of  such  corporations,  persons  or  munici- 
palities. 

9.  Have  power  to  examine  the  books  and  affairs  of  any  such 
corporation,  persons  or  municipalities,  and  to  compel  the  pro- 
duction before  it  of  books  and  papers  pertaining  to  the  affairs 
being  investigated  by  it. 

10.  Have  power,  cither  as  a  commission  or  through  its  mem- 
bers, to  subpoena  witnesses,  take  testimony  and  administer 
oaths  to  witnesses  in  any  proceeding  or  examination  instituted 
before  it,  or  conducted  by  it  in  reference  to  any  matter  within 
its  jurisdiction  under  this  article. 

§  67.  Inspection  of  Gas  and  Electric  Meters.— 1.  Each 
commission  shall  appoint  inspectors  of  gas  and  electric  meters 
whose  duty  it  shall  be  when  required,  to  inspect,  examine,  prove 

mid  ascertain  the  accuracy  of  any  and  all  gas  meters  used  or  in- 
tended to  be  used  for  measuring  or  ascertaining  the  quantity  of 
illuminating  or  fuel  gas  or  natural  gas  furnished  by  any  gas 
corporation  to  or  for  the  use  of  any  person  and  any  and  all 

925 


§    68  APPENDIX    A 

electric  meters  used  or  intended  to  be  used  for  measuring  and 
ascertaining  the  quantity  of  electric  current  furnished  for  light, 
heat  and  power  by  any  electrical  corporation  to  or  for  the  use 
of  any  person  or  persons  and  when  found  to  be  or  made  to  be 
correct,  the  inspector  shall  stamp  or  mark  all  such  meters  and 
each  of  them  with  some  suitable  device,  which  device  shall  be 
recorded  in  the  office  of  the  secretary  of  state. 

2.  No  corporation  or  person  shall  furnish  or  put  in  use  any  gas 
meter  which  shall  not  have  been  inspected,  proved  and  sealed, 
or  any  electric  meter  which  shall  not  have  been  inspected,  ap- 
proved, stamped  or  marked  by  an  inspector  of -the  commission. 
Every  gas  and  electrical  corporation  shall  provide  or  keep  in 
and  upon  its  premises  a  suitable  and  proper  apparatus,  to  be 
approved  and  stamped  or  marked  by  the  commission,  for  test- 
ing and  proving  the  accuracy  of  gas  and  electric  meters  fur- 
nished for  use  by  it,  and  by  which  apparatus  every  meter  may 
and  shall  be  tested,  on  the  written  request  of  the  consumer  to 
whom  the  same  shall  be  furnished,  and  in  his  presence  if  he 
desires  it. 

If  any  consumer  to  whom  a  meter  has  been  furnished,  shall 
request  the  commission  in  writing  to  inspect  such  meter,  the 
commission  shall  have  the  same  inspected  and  tested;  if  the 
same  on  being  so  tested  shall  be  found  to  be,  four  per  cent,  if  an 
electric  meter,  or  two  per  cent,  if  a  gas  meter,  defective  or  in- 
correct to  the  prejudice  of  the  consumer,  the  inspector  shall 
order  the  gas  or  electrical  corporation  forthwith  to  remove  the 
same  and  to  place  instead  thereof  a  correct  meter,  and  the  ex- 
pense of  such  inspection  and  test  shall  be  borne  by  the  corpo- 
ration ;  if  the  same  on  being  so  tested  shall  be  found  to  be  cor- 
rect the  expense  of  such  inspection  and  test  shall  be  borne  by 
the  consumer.  A  uniform  reasonable  charge  shall  be  fixed  by 
the  commission  for  this  service. 

§  68.  Approval  of  Incorporation  and  Franchises ;  Certifi- 
cate.— No  gas  corporation  or  electrical  corporation  incorpo- 
rated under  the  laws  of  this  or  any  other  State  shall  begin  con- 
struction, or  exercise  any  right  or  privilege  under  any  franchise 
926 


PUBLIC   SERVICE   COMMISSIONS  LAW  OF  NEW   YORK       §   69 

hereafter  granted,  or  under  any  franchise  heretofore  granted 
but  not  heretofore  actually  exercised  without  first  having  ob- 
tained the  permission  and  approval  of  the  proper  commission. 
Before  such  certificate  shall  be  issued  a  certified  copy  of  the 
charter  of  such  corporation  shall  be  filed  in  the  office  of  the  com- 
mission, together  with  a  verified  statement  of  the  president  and 
secretary  of  the  corporation,*  showing  that  it  has  received  the 
required  consent  of  the  proper  municipal  authorities.  No 
municipality  shall  build,  maintain  and  operate  for  other  than 
municipal  purposes  any  works  or  systems  for  the  manufacture 
and  supplying  of  gas  or  electricity  for  lighting  purposes  without 
a  certificate  of  authority  granted  by  the  commission.  If  the 
certificate  of  authority  is  refused,  no  further  proceedings  shall 
be  taken  before  the  commission,  but  a  new  application  may  be 
made  therefor  after  one  year  from  the  date  of  such  refusal. 

§  69.  Approval  of  Issues  of  Stock,  Bonds  and  Other 
Forms  of  Indebtedness. — A  gas  corporation  or  electrical  corpo- 
ration organized  or  existing,  or  hereafter  incorporated,  under 
or  by  virtue  of  the  laws  of  the  State  of  New  York,  may  issue 
stocks,  bonds,  notes  or  other  evidence  of  indebtedness  payable 
at  periods  of  more  than  twelve  months  after  the  date  thereof, 
when  necessary  for  the  acquisition  of  property,  the  construc- 
tion, completion,  extension  or  improvement  of  its  plant  or 
distributing  system,  or  for  the  improvement  or  maintenance  of 
its  service  or  for  the  discharge  or  lawful  refunding  of  its  obli- 
gations, provided  and  not  otherwise  that  there  shall  have  1  ecu 
secured  from  the  proper  commission  an  order  authorizing  such 
issue,  and  the  amount  thereof,  and  stating  that,  in  the  opinion 
of  the  commission,  the  use  of  the  capital  to  be  secured  by  the 
issue  of  such  stock,  bonds,  notes  or  other  evidence  of  indebted- 
ness is  reasonably  required  for  the  said  purposes  of  the  corpo- 
ration. For  the  purpose  of  enabling  it  to  determine  whether  or 
not  it  should  issue  such  an  order,  the  commission  shall  make 
such  inquiry  or  investigation,  hold  such  hearings  and  examine 
such  witnesses,  books,  papers,  documents  or  contracts  as  it 

*  So  in  original. 

927 


§    70  APPENDIX    A 

may  deem  of  importance  in  enabling  it  to  reach  a  determi- 
nation. Such  gas  corporation  or  electrical  corporation  may  issue 
notes,  for  proper  corporate  purposes  and  not  in  violation  of  any 
provision  of  this  or  of  any  other  act,  payable  at  periods  of  not 
more  than  twelve  months  without  such  consent;  but  no  such 
notes  shall,  in  whole  or  in  part,  directly  or  indirectly  be  re- 
funded by  any  issue  of  stock  or  bonds  or  by  any  evidence  of  in- 
debtedness running  for  more  than  twelve  months  without  the 
consent  of  the  proper  commission.  Provided,  however,  that 
the  commission  shall  have  no  power  to  authorize  the  capitali- 
zation of  any  franchise  to  be  a  corporation  or  to  authorize  the 
capitalization  of  any  franchise  or  the  right  to  own,  operate  or 
enjoy  any  franchise  whatsoever  in  excess  of  the  amount  (ex- 
clusive of  any  tax  or  annual  charge)  actually  paid  to  the  State 
or  to  any  political  subdivision  thereof  as  the  consideration  for 
the  grant  of  such  franchise  or  right.  Nor  shall  the  capital  stock 
of  a  corporation  formed  by  the  merger  or  consolidation  of  two 
or  more  other  corporations,  exceed  the  sum  of  the  capital  stock 
of  the  corporations,  so  consolidated,  at  the  par  value  thereof, 
or  such  sum  and  any  additional  sum  actually  paid  in  cash ;  nor 
shall  any  contract  for  consolidation  or  lease  be  capitalized  in  the 
stock  of  any  corporation  whatever;  nor  shall  any  corporation 
hereafter  issue  any  bonds  against  or  as  a  lien  upon  any  contract 
for  consolidation  or  merger. 

§  70.  Approval  of  Transfer  of  Franchise.— No  gas  corpo- 
ration or  electrical  corporation  shall  transfer  or  lease  its  fran- 
chise, works  or  system  or  any  part  of  such  franchise,  works  or 
system  to  any  other  person  or  corporation  or  contract  for  the 
operation  of  its  works  and  system,  without  the  written  consent 
of  the  proper  commission.  The  permission  and  approval  of  the 
commission,  to  the  exercise  of  a  franchise  under  section  sixty- 
eight  of  this  act,  or  to  the  assignment,  transfer  or  lease  of  a 
franchise  under  this  section  shall  not  be  construed  to  revive  or 
validate  any  lapsed  or  invalid  franchise  or  to  enlarge  or  add  to 
the  powers  and  privileges  contained  in  the  grant  of  any  fran- 
chise or  to  waive  any  forfeiture.  No  such  corporation  shall 
928 


PUBLIC   SERVICE   COMMISSIONS   LAW   OF   NEW   YORK       §    71 

directly  or  indirectly  acquire  the  stock  or  bonds  of  any  other 
corporation  incorporated  for,  or  engaged  in,  the  same  or  a 
similar  business,  or  proposing  to  operate  or  operating  under  a 
franchise  from  the  same  or  any  other  municipality,  unless  au- 
thorized so  to  do  by  the  commission.  Save  where  stock  shall  be 
transferred  or  held  for  the  purpose  of  collateral  security  only 
with  the  consent  of  the  commission  empowered  by  this  act  to 
give  such  consent,  no  stock  corporation  of  any  description,  do- 
mestic or  foreign,  other  than  a  gas  or  electrical  corporation, 
shall  purchase  or  acquire,  take  or  hold,  more  than  ten  per 
centum  of  the  total  capital  stock  issued  by  any  gas  corporation 
or  electrical  corporation  organized  or  existing  under  or  by 
virtue  of  the  laws  of  this  State.  Nothing  herein  contained  shall 
be  construed  to  prevent  the  holding  of  stock  heretofore  law- 
fully acquired.  Every  contract,  assignment,  transfer  or  agree- 
ment for  transfer  of  any  stock  by  or  through  any  person  or  cor- 
poration to  any  corporation,  in  violation  of  any  provision  of 
this  act,  shall  be  void  and  of  no  effect,  and  no  such  transfer  or 
assignment  shall  be  made  upon  the  books  of  any  such  gas  cor- 
poration, or  electrical  corporation,  or  shall  be  recognized  as 
effective  for  any  purpose. 

§  71.  Complaints  as  to  Quality  and  Price  of  Gas  and 
Electricity;  Investigation  by  Commission;  Forms  of  Com- 
plaints.—Upon  the  complaint  in  writing  of  the  mayor  of  a  city, 
the  trustees  of  a  village  or  the  town  board  of  a  town  in  which  a 
person  or  corporation  is  authorized  to  manufacture,  sell  or  sup- 
ply gas  or  electricity  for  heat,  light  or  power,  or  upon  the  com- 
plaint in  writing  of  not  less  than  one  hundred  customers  or 
purchasers  of  such  gas  or  electricity  in  cities  of  the  first  or 
second  class,  or  of  not  less  than  fifty  in  cities  of  the  third  class, 
or  of  not  less  than  twenty-five  elsewhere,  either  as  to  the  illu- 
minating power,  purity,  pressure  or  price  of  gas  or  the  initial 
efficiency  of  the  electric  incandescenl  lamp  supply,  or  the  regu- 
lation of  the  voltage  of  the  supply  system  used  for  incandescent 
lighting,  or  price  of  electricity  sold  and  delivered  in  such  mu- 
nicipality, the  proper  commission  shall  investigate  as  t<>  the 
59  929 


§   72  APPENDIX    A 

cause  for  such  complaint.  When  such  complaint  is  made,  the 
commission  may,  by  its  agents,  examiners  and  inspectors,  in- 
spect the  works,  system,  plant  and  methods  used  by  such  person 
or  corporation  in  manufacturing,  transmitting  and  supplying 
such  gas  or  electricity,  and  may  examine  or  cause  to  be  ex- 
amined the  books  and  papers  of  such  person  or  corporation 
pertaining  to  the  manufacture,  sale,  transmitting  and  supplying 
of  such  gas  or  electricity.  The  form  and  contents  of  complaints 
made  as  provided  in  this  section  shall  be  prescribed  by  the  com- 
mission. Such  complaints  shall  be  signed  by  the  officers,  or  by 
the  customers,  purchasers  or  subscribers  making  them,  who 
must  add  to  their  signatures  their  places  of  residence,  by  street 
and  number,  if  any. 

§  72.  Notice  and  Hearing;  Order  Fixing  Price  of  Gas  or 
Electricity,  or  Requiring  Improvement. — Before  proceeding 
under  a  complaint  presented  as  provided  in  section  seventy-one, 
the  commission  shall  cause  notice  of  such  complaint,  and  the 
purpose  thereof,  to  be  served  upon  the  person  or  corporation 
affected  thereby.  Such  person  or  corporation  shall  have  an 
opportunity  to  be  heard  in  respect  to  the  matters  complained 
of  at  a  time  and  place  to  be  specified  in  such  notice.  If  an  in- 
vestigation be  instituted  upon  motion  of  the  commission  the 
person  or  corporation  affected  by  the  investigation  may  be  per- 
mitted to  appear  before  the  commission  at  a  time  and  place 
specified  in  the  notice  and  answer  all  charges  which  may  be 
preferred  by  the  commission.  After  a  hearing  and  after  such 
investigation  as  may  have  been  made  by  the  commission  or  its 
officers,  agents,  examiners  or  inspectors,  the  commission  within 
lawful  limits  may,  by  order,  fix  the  maximum  price  of  gas  or 
electricity  to  be  charged  by  such  corporation  or  person,  or  may 
order  such  improvement  in  the  manufacture  or  supply  of  such 
gas,  in  the  manufacture,  transmission  or  supply  of  such  elec- 
tricity, or  in  the  methods  employed  by  such  person  or  corpo- 
ration, as  will  in  its  judgment  improve  the  service.  The  price 
so  fixed  by  the  commission  shall  be  the  maximum  price  to  be 
charged  by  such  person  or  corporation  for  gas  or  electricity  in 
930 


PUBLIC   SERVICE   COMMISSIONS   LAW   OF   NEW   YORK       §    73 

such  municipality  until  the  commission  shall  upon  complaint  as 
provided  in  this  section  or  upon  an  investigation  conducted  by 
it  on  its  own  motion,  again  fix  the  maximum  price  of  such  gas  or 
electricity.  In  determining  the  price  to  be  charged  for  gas  or 
electricity  the  commission  may  consider  all  facts  which  in  its 
judgment  have  any  bearing  upon  a  proper  determination  of  the 
question  although  not  set  forth  in  the  complaint  and  not  within 
the  allegations  contained  therein. 

§  73.  Forfeiture  for  Noncompliance  with  Order. — Every  gas 
corporation  and  electrical  corporation  and  the  officers,  agents 
or  employees  thereof  shall  obey,  observe  and  comply  with  every 
order  made  by  the  commission  under  authority  of  this  act,  so 
long  as  the  same  shall  be  and  remain  in  force.  Any  such  corpo- 
ration, or  any  officer,  agent  or  employee  thereof,  who  knowingly 
fails  or  neglects  to  obey  or  comply  with  such  order,  or  any  pro- 
vision of  this  act,  shall  forfeit  to  the  State  of  New  York  not  to 
exceed  the  sum  of  one  thousand  dollars  for  each  offense.  Every 
distinct  violation  of  any  such  order  or  of  this  act,  shall  be  a 
separate  offense,  and  in  case  of  a  continuing  violation  each  day 
shall  be  deemed  a  separate  offense.  An  action  to  recover  such 
forfeiture  may  be  brought  in  any  court  of  competent  jurisdic- 
tion in  this  State  in  the  name  of  the  people  of  the  State  of  New 
York,  and  shall  be  commenced  and  prosecuted  to  final  judg- 
ment by  counsel  to  the  commission.  In  any  such  action  all  pen- 
alties and  forfeitures  incurred  up  to  the  time  of  commencing 
the  same  may  be  sued  for  and  recovered  therein,  and  the  com- 
mencement of  an  action  to  recover  a  penalty  or  forfeiture  shall 
not  be,  or  be  held  to  be,  a  waiver  of  the  right  to  recover  any 
other  penalty  or  forfeiture;  if  the  defendant  in  such  action  shall 
prove  that  during  any  portion  of  the  time  for  which,  it  is  sought 
to  recover  penalties  or  forfeitures  for  a  violation  of  an  order  of 
the  commission  the  defendant  was  actually  and  in  good  faith 
prosecuting  the  suit,  action  or  proceeding  in  the  courts  to  Bel 
aside  such  order,  the  court  shall  remit  the  penalties  or  for- 
feitures incurred  during  the  pendency  of  such  suit,  action  or 
proceeding.    All  moneys  recovered  in  any  such  action,  together 


§§    74,   75  APPENDIX    A 

with  the  costs  thereof,  shall  be  paid  into  the  state  treasury  to 
the  credit  of  the  general  fund. 

§  74.  Summary  Proceedings. — Whenever  either  commission 
shall  be  of  opinion  that  a  gas  corporation,  electrical  corporation 
or  municipality  within  its  jurisdiction  is  failing  or  omitting  or 
about  to  fail  or  omit  to  do  anything  required  of  it  by  law  or  by 
order  of  the  commission  or  is  doing  anything  or  about  to  do 
anything  or  permitting  anything  or  about  to  permit  anything 
to  be  done,  contrary  to  or  in  violation  of  law  or  of  any  order 
of  the  commission,  it  shall  direct  counsel  to  the  commission  to 
commence  an  action  or  proceeding  in  the  Supreme  Court  of  the 
State  of  New  York  in  the  name  of  the  commission  for  the  pur- 
pose of  having  such  violations  or  threatened  violations  stopped 
and  prevented  either  by  mandamus  or  injunction.  Counsel  to 
the  commission  shall  thereupon  begin  such  action  or  proceeding 
by  a  petition  to  the  Supreme  Court  alleging  the  violation  com- 
plained of  and  praying  for  appropriate  relief  by  way  of  manda- 
mus or  injunction.  It  shall  thereupon  be  the  duty  of  the  court 
to  specify  the  time  not  exceeding  twenty  days  after  service  of  a 
copy  of  the  petition  within  which  the  gas  corporation,  elec- 
trical corporation  or  municipality  complained  of  must  answer 
the  petition.  In  case  of  default  in  answer  or  after  answer,  the 
court  shall  immediately  inquire  into  the  facts  and  circumstances 
in  such  manner  as  the  court  shall  direct  without  other  or  formal 
pleadings,  and  without  respect  to  any  technical  requirement. 
Such  other  persons  or  corporations,  as  it  shall  seem  to  the  court, 
necessary  or  proper  to  join  as  parties  in  order  to  make  its  order, 
judgment  or  writs  effective,  may  be  joined  as  parties  upon  ap- 
plication of  counsel  to  the  commission.  The  final  judgment  in 
any  such  action  or  proceeding  shall  either  dismiss  the  action  or 
proceeding  or  direct  that  a  writ  of  mandamus  or  an  injunction 
or  both  issue  as  prayed  for  in  the  petition  or  in  such  modified 
or  other  form  as  the  court  may  determine  will  afford  appropri- 
ate relief. 

§  75.  Defense  in  Case  of  Excessive  Charges  for  Gas  or 
Electricity. — If  it  be  alleged   and   established  in  an  action 
932 


PUBLIC   SERVICE    COxMMISSIONS   LAW  OF  NEW   YORK       §§    76,  77 

brought  in  any  court  for  the  collection  of  any  charge  for  gas  or 
electricity,  that  a  price  has  been  demanded  in  excess  of  that 
fixed  by  the  commission  or  by  statute  in  the  municipality 
wherein  the  action  arose,  no  recovery  shall  be  had  therein,  but 
the  fact  that  such  excessive  charges  have  been  made  shall  be  a 
complete  defense  to  such  action. 

§  76.  Jurisdiction. — Whenever  any  corporation  supplies  gas 
or  electricity  to  consumers  in  both  districts,  any  application  or 
report  to  a  commission  required  by  this  act  shall  be  made  to 
the  commission  of  the  district  within  which  it  is  mainly  supply- 
ing, or  proposing  to  supply,  such  service  to  consumers.  But 
nothing  herein  contained  shall  be  construed  to  deprive  the 
commission  of  either  district  of  the  power  of  supervision  and 
regulation  within  its  district.  And  either  commission  shall  have 
power  to  enter  and  inspect  the  plant  of  such  corporation,  wher- 
ever situated. 

§  77.  Powers  of  Local  Officers.— If  in  any  city  of  the  first 
or  second  class  there  now  exists  or  shall  hereafter  be  created  a 
board,  body  or  officer  having  jurisdiction  of  matters  pertaining 
to  gas  or  electric  service,  such  board,  body  or  officer  shall  have 
and  may  exercise  such  power,  jurisdiction  and  authority  in  en- 
forcing the  laws  of  the  State  and  the  orders,  rules  and  regu- 
lations of  the  commission  as  may  be  prescribed  by  statute  or  by 
the  commission. 

ARTICLE  V. 

COMMISSIONS    AND    OFFICES    ABOLISHED;    SAVING    CLAUSE; 

REPEAL. 

§  80.  Board  of  Railroad  Commis- 
sioners Abolished;  Effect 
Thereof. 

81.  Commission  of  Gas  and  Elec- 

tricity    Abolished;      Effect 
Thereof. 

82.  Inspector  of  G&S  Meters  Abol- 

ished; Effect  Thereof. 

83.  Board  of  Rapid  Transit  Rail- 


road    Commissioners    Abol- 

ished; Effect  Thereof. 

84. 

Transfer  of  Records. 

85. 

Pending  Actions  and  Proceed- 

ings. 

86. 

Construction. 

NT. 

Repeal. 

88. 

Appropriation. 

89. 

1  ime  of  Taking  Effect. 

933 

§§   80-84  APPENDIX   A 

§  80.  Board  of  Railroad  Commissioners  Abolished;  Effect 
Thereof. — On  and  after  the  taking  effect  of  this  act  the 
board  of  railroad  commissioners  shall  be  abolished.  All  the 
powers  and  duties  of  such  board  conferred  and  imposed  by  any 
statute  of  this  State  shall  thereupon  be  exercised  and  per- 
formed by  the  public  service  commissions. 

§  81.  Commission  of  Gas  and  Electricity  Abolished ;  Effect 
Thereof. — On  and  after  the  taking  effect  of  this  act  the  com- 
mission of  gas  and  electricity  shall  be  abolished.  All  the  powers 
and  duties  of  such  commission  conferred  and  imposed  by  any 
statute  of  this  State  shall  be  exercised  and  performed  by  the 
public  service  commissions. 

§  82.  Inspector  of  Gas  Meters  Abolished;  Effect  Thereof. 

— On  and  after  the  taking  effect  of  this  act  the  offices  of  in- 
spector and  deputy  inspectors  of  gas  meters  shall  be  abolished. 
All  the  powers  and  duties  of  such  inspector  conferred  and  im- 
posed by  any  statute  of  this  State  shall  be  exercised  and  per- 
formed by  the  public  service  commissions.  But  any  meter  in- 
spected, proved  and  sealed,  by  the  said  inspector  of  gas  meters, 
prior  to  the  taking  effect  of  this  act,  shall  be  deemed  to  have 
been  inspected  by  the  commission. 

§  83.  Board  of  Rapid  Transit  Railroad  Commissioners 
Abolished ;  Effect  Thereof. — On  and  after  the  taking  effect  of 
this  act  the  board  of  rapid  transit  railroad  commissioners  shall 
be  abolished.  All  the  powers  and  duties  of  such  board  con- 
ferred and  imposed  by  any  statute  of  this  State  shall  thereupon 
be  exercised  and  performed  by  the  public  service  commission 
of  the  first  district. 

§  84.  Transfer  of  Records. — 1.  The  board  of  railroad  com- 
missioners, the  commission  of  gas  and  electricity,  and  the  in- 
spector of  gas  meters,  shall  transfer  and  deliver  to  the  public 
service  commission  of  the  second  district  all  books,  maps, 
papers  and  records  of  whatever  description,  now  in  their  pos- 
934 


PUBLIC   SERVICE   COMMISSIONS   LAW   OF   NEW   YORK       §§    85,    86 

session ;  and  upon  taking  effect  of  this  act,  the  said  commission 
is  authorized  to  take  possession  of  all  such  books,  maps,  papers 
and  records. 

2.  The  board  of  rapid  transit  railroad  commissioners  shall 
transfer  and  deliver  to  the  public  service  commission  of  the 
first  district  all  contracts,  books,  maps,  plans,  papers  and 
records  of  whatever  description,  now  in  their  possession;  and 
upon  taking  effect  of  this  act,  the  said  commission  is  authorized 
to  take  possession  of  all  such  contracts,  books,  maps,  plans, 
papers  and  records.  The  said  commission  may  also,  at  its 
pleasure,  retain  in  its  employment  any  person  or  persons  not 
employed  by  the  said  board  of  rapid  transit  railroad  commis- 
sioners, and  all  said  persons  shall  be  eligible  for  transfer  and 
appointment  to  positions  under  the  public  service  commission 
of  the  first  district. 

§  85.  Pending  Actions  and  Proceedings. — This  act  shall  not 
affect  pending  actions  or  proceedings,  civil  or  criminal,  brought 
by  or  against  the  board  of  railroad  commissioners  or  the  com- 
mission of  gas  and  electricity,  or  the  board  of  rapid  transit 
railroad  commissioners,  but  the  same  may  be  prosecuted  or  de- 
fended in  the  name  of  the  public  service  commission,  provided 
the  subject-matter  thereof  is  within  the  statutory  jurisdiction 
of  such  commission.  Any  investigation,  examination  or  pro- 
ceeding undertaken,  commenced  or  instituted  by  the  said  boards 
or  commission  or  either  of  them  prior  to  the  taking  effect  of 
this  act  may  be  conducted  and  continued  to  a  final  determi- 
nation by  the  proper  public  service  commission  in  the  same 
manner,  under  the  same  terms  and  conditions,  and  with  the 
same  effect  as  though  such  boards  or  commission  had  not  been 
abolished. 

§  86.  Construction. — Wherever  the  terms  board  of  railroad 
commissioners,  or  commission  of  gas  and  electricity,  or  inspector 
of  gas  meters  or  board  of  rapid  transit  railroad  commissioners 
occur  in  any  law,  contract  or  document  or  whenever  in  any 
law,  contract  or  document  reference  is  made  to  such  boards, 

935 


§§   87-89  APPENDIX    A 

commission  or  inspector,  such  terms  or  reference  shall  be 
deemed  to  refer  to  and  include  the  public  service  commissions 
as  established  by  this  act,  so  far  as  such  law,  contract  or  docu- 
ment pertains  to  matters  which  are  within  the  jurisdiction  of 
the  said  public  service  commissions.  Nothing  in  this  act  con- 
tained shall  be  deemed  to  apply  to  or  operate  upon  interstate 
or  foreign  commerce. 

§  87.  Repeal. — The  following  acts  and  parts  of  acts,  together 
with  all  other  acts  amendatory  of  such  acts,  and  all  acts  and 
parts  of  acts  otherwise  in  conflict  with  this  act,  are  hereby  re- 
pealed : 

Laws  of  1905,  chapter  737. 

Laws  of  1905,  chapter  728. 

Laws  of  1904,  chapter  158. 

Laws  of  1902,  chapter  373. 

Laws  of  1896,  chapter  456. 

Laws  of  1894,  chapter  452. 

Laws  of  1892,  chapter  534. 

Laws  of  1891,  chapter  4,  sections  1,  2  and  3. 

Laws  of  1890,  chapter  565,  sections  150  to  172,  inclusive. 

Laws  of  1890,  chapter  566,  sections  62,  63  and  64. 

§  88.  Appropriation.— There  shall  be  appropriated  for  the 
use  of  the  commissions,  and  for  the  payment  of  salaries  and 
disbursements  under  this  act,  from  money  not  otherwise  ap- 
propriated, the  sum  of  three  hundred  thousand  dollars,  one 
hundred  and  fifty  thousand  dollars  for  the  use  of  the  commis- 
sion of  the  first  district  and  one  hundred  and  fifty  thousand 
dollars  for  the  use  of  the  commission  of  the  second  district. 

§  89.  Time  of  Taking  Effect.— This  act  shall  take  effect  July 
first,  nineteen  hundred  and  seven. 

Purchase  of  Rapid  Transit  Railways— Powers  of  Public 
Service  Commission.— Act  of  May  22, 1908,  Laws  of  New  York, 
1908,  p.  1675,  chap.  472,  entitled:  "An  act  to  amend  chapter 
936 


PUBLIC    SERVICE    COMMISSIONS    LAW    OF    NEW    YORK 

four  of  the  laws  of  eighteen  hundred  and  ninety-one,  entitled 
'  an  act  to  provide  rapid  transit  railways  in  cities  of  over  one  mil- 
lion inhabitants/  in  regard  to  the  purchase  by  such  cities  and 
the  equipment,  maintenance  and  operation  of  railways  for  rapid 
transit  purposes,"  empowers,  under  §  34/,  the  public  service 
commission  of  the  first  district,  successor  of  the  rapid  transit 
railroad  commissioners,  with  the  approval  of  the  board  of  esti- 
mate and  apportionment,  or  other  analogous  local  authority 
of  such  city,  to  purchase  for  such  price  and  upon  such  terms 
and  conditions  as  may  be  agreed  upon,  and  acquire  by  con- 
veyance or  grant  to  such  city,  to  be  delivered  to  said  board, 
any  line  of  railway  already  constructed  or  in  process  of  con- 
struction of  the  character  which  might  be  constructed  as  a 
rapid  transit  railway  or  railways  under  the  provisions  of  this 
act,  and  which  in  the  opinion  of  the  board  it  is  for  the  interest 
of  the  public  and  the  city  to  acquire  for  rapid  transit  purposes. 
This  amendment  further  provides  for  the  raising  and  payment 
of  the  necessary  monies ;  that  such  railway  or  railways  shall  be 
deemed  to  have  been  constructed  at  the  expense  of  the  city; 
for  consents  to  such  construction  and  operation ;  for  contracts 
with  any  firm  or  corporation  for  equipment,  etc.;  for  the  term 
of  maintenance  and  operation ;  and  for  conditions  as  to  rates  of 
fare,  character  of  service  and  rental  to  be  paid,  having  in  view 
the  public  interests.     Section  37  of  said  act,  as  amended  by 
chap.  534  of  the  Laws  of  1907,  is  amended  for  the  purpose  of 
providing  the  necessary  means  for  such  construction  or  equip- 
ment or  both,  or  acquiring  by  purchase  at  the  public  expense, 
of  any  such  road  or  roads,  including  galleries,  ways,  subways 
and  tunnels  for  sub-surface  structures  and  the  necessary  means 
to  pay  for  lands,  etc.,  and  meeting  the  interest  on  the  bonds. 
Other  provisions  are  also  made  in  the  matter  of  such  bonds  and 
the  issuance  thereof,  their  sale  value,  their  freedom  from  tax- 
ation, their  payment ,  etc. :  and  for  public  hearing,  upon  notice, 
before  finally  fixing  the  terms  or  conditions  of  any  contract 
provided  by  the  amendment. 


937 


APPENDIX  B. 

PUBLIC    UTILITY    LAW 

OF 

WISCONSIN. 

GIVING  THE  WISCONSIN   RAILROAD  COMMISSION 
JURISDICTION  OVER  PUBLIC  UTILITIES. 


APPENDIX  B. 

PUBLIC  UTILITY  LAW 

OF 

WISCONSIN. 
[No.  933,  A.  Published  July  10,  1907.] 

CHAPTER  499. 

AN  ACT  to  create  section  1797m— 1  to  1797m— 108,  inclusive, 
statutes  of  1898,  giving  the  Wisconsin  railroad  commission 
jurisdiction  over  public  utilities,  providing  for  the  regulation 
of  such  public  utilities,  appropriating  a  sum  sufficient  to 
carry  out  the  provisions  of  this  act,  and  repealing  certain  acts 
in  conflict  with  the  provisions  hereof. 

The  People  of  the  State  of  Wisconsin,  represented  in  Senate  and 
Assembly  do  enact  as  follows : 

Section  1.  There  are  added  to  the  statutes  of  1898,  108  new 
sections  to  read:*  Section  1797m — 1.  1.  The  term  "  public  util- 
ity" as  used  in  this  act  shall  mean  and  embrace  every  corpora- 
tion, company,  individual,  association  of  individuals,  (heir  les- 
sees, trustees  or  receivers  appointed  by  any  court  whatsoever, 
and  every  town,  village  or  city  that  now  or  hereafter  may  own, 
operate,  manage  or  control  any  plant  or  equipmenl  or  any  part 
of  a  plant  or  equipmenl  within  the  State,  for  the  conveyance  of 
telephone  messages  or  for  the  production,  transmission,  deliv- 
ery or  furnishing  of  heat,  light,  water  or  power  either  dired  ly  or 
indirectly  to  or  for  the  public. 

2.  The  term  "municipal  council"  as  used  in  this  ad  shall 

♦Contents  are  given  on  page  978, herein. 

'.HI 


appendix  b  §  1797m — 2,  3 

mean  and  embrace  the  common  council,  the  board  of  aldermen, 
the  board  of  trustees,  the  town  or  village  board,  or  any  other 
governing  body  of  any  town,  village  or  city  wherein  the  property 
of  the  public  utility  or  any  part  thereof  is  located. 

3.  The  term  "municipality"  as  used  in  this  act  shall  mean 
any  town,  village  or  city  wherein  property  of  a  public  utility  or 
any  part  thereof  is  located. 

4.  The  term  "service"  is  used  in  this  act  in  its  broadest  and 
most  inclusive  sense. 

5.  The  term  "indeterminate  permit"  as  used  in  this  act  shall 
mean  and  embrace  every  grant,  directly  or  indirectly  from  the 
State,  to  any  corporation,  company,  individual,  association  of 
individuals,  their  lessees,  trustees  or  receivers  appointed  by  any 
court  whatsoever,  of  power,  right  or  privilege  to  own,  operate, 
manage  or  control  any  plant  or  equipment  or  any  part  of  a  plant 
or  equipment  within  this  State  for  the  production,  transmission, 
delivery  or  furnishing  of  heat,  light,  water  or  power,  either  di- 
rectly or  indirectly,  to  or  for  the  public,  which  shall  continue  in 
force  until  such  time  as  the  municipality  shall  exercise  its  op- 
tion to  purchase  as  provided  in  this  act  or  until  it  shall  be  other- 
wise terminated  according  to  law. 

6.  The  term  "  commission  "  as  used  in  this  act  shall  mean  the 
railroad  commission  of  Wisconsin. 

§  1797m — 2.  The  railroad  commission  of  Wisconsin  is  vested 
with  power  and  jurisdiction  to  supervise  and  regulate  every 
public  utility  in  this  State  and  to  do  all  things  necessary  and 
convenient  in  the  exercise  of  such  power  and  jurisdiction. 

§  1797m— 3.  Every  public  utility  is  required  to  furnish  rea- 
sonably adequate  service  and  facilities.  The  charge  made  by 
any  public  utility  for  any  heat,  light,  water  or  power  produced, 
transmitted,  delivered  or  furnished  or  for  any  telephone  message 
conveyed  or  for  any  service  rendered  or  to  be  rendered  in  con- 
nection therewith  shall  be  reasonable  and  just,  and  every  unjust 
or  unreasonable  charge  for  such  service  is  prohibited  and  de- 
clared unlawful. 
942 


§  1797m — 4-6    public  utility  law  of  Wisconsin 

§  1797m — 4.  1.  Every  public  utility,  and  every  person, 
association  or  corporation  having  conduits,  subways,  poles  or 
other  equipment  on,  over  or  under  any  street  or  highway  shall 
for  a  reasonable  compensation  permit  the  use  of  the  same  by 
any  public  utility  whenever  public  convenience  and  necessity 
require  such  use  and  such  use  will  not  result  in  irreparable  in- 
jury to  the  owner  or  other  users  of  such  equipment  nor  in  any 
substantial  detriment  to  the  service  to  be  rendered  by  such 
owners  or  other  users. 

2.  In  case  of  failure  to  agree  upon  such  use  or  the  conditions  or 
compensation  for  such  use  any  public  utility  or  any  person,  as- 
sociation or  corporation  interested  may  apply  to  the  commis- 
sion, and  if  after  investigation  the  commission  shall  ascertain 
that  public  convenience  and  necessity  require  such  use  and  that 
it  would  not  result  in  irreparable  injury  to  the  owner  or  other 
users  of  such  equipment  nor  in  any  substantial  detriment  to  the 
service  to  be  rendered  by  such  owner  or  other  users  of  such 
equipment,  it  shall  by  order  direct  that  such  use  be  permitted 
and  prescribe  reasonable  conditions  and  compensation  for  such 
joint  use. 

3.  Such  use  so  ordered  shall  be  permitted  and  such  conditions 
and  compensations  so  prescribed  shall  be  the  lawful  conditions 
and  compensation  to  be  observed,  followed  and  paid,  subject  to 
recourse  to  the  courts  upon  the  complaint  of  any  interested 
party  as  provided  in  section  1797m — 64  to  1797m — 73,  inclu- 
sive, and  such  sections  so  far  as  applicable  shall  apply  to  any 
action  arising  on  such  complaint  so  made.  Any  such  order  of 
the  commission  may  be  from  time  to  time  revised  by  the  com- 
mission upon  application  of  any  interested  party  or  upon  its  own 
motion. 

§  1797m — 5.  The  commission  shall  value  :tll  the  property  of 
every  public  utility  actually  used  and  useful  for  the  conven- 
ience of  the  public.  In  making  such  valuation  the  commission 
may  avail  itself  of  any  information  in  possession  of  the  state 
board  of  assessment . 

§  1797m — 6.    1.  Before  final  determination  of  such  value  the 

943 


§  1797m — 7-10  appendix  b 

commission  shall,  after  notice  to  the  public  utility,  hold  a  pub- 
lic hearing  as  to  such  valuation  in  the  manner  prescribed  for  a 
hearing  in  sections  1797m^— 45  to  1797m — 55  inclusive,  and 
the  provisions  of  such  sections  so  far  as  applicable  shall  apply  to 
such  hearing. 

2.  The  commission  shall  within  five  days  after  such  valua- 
tion is  determined  serve  a  statement  thereof  upon  the  public 
utility  interested,  and  shall  file  a  like  statement  with  the  clerk 
of  every  municipality  in  which  any  part  of  the  plant  or  equip- 
ment of  such  public  utility  is  located. 

§  1797m — 7.  The  commission  may  at  any  time  on  its  own 
initiative  make  a  re-valuation  of  such  property. 

§  1797m — 8.  1.  Every  public  utility  shall  keep  and  render 
to  the  commission  in  the  manner  and  form  prescribed  by  the 
commission  uniform  accounts  of  all  business  transacted. 

2.  Every  public  utility  engaged  directly  or  indirectly  in  any 
other  business  than  that  of  the  production,  transmission  or 
furnishing  of  heat,  light,  water  or  power  or  the  conveyance  of 
telephone  messages  shall,  if  required  by  the  commission,  keep 
and  render  separately  to  the  commission  in  like  manner  and 
form  the  accounts  of  all  such  other  business,  in  which  case  all 
the  provisions  of  this  act  shall  apply  with  like  force  and  effect 
to  the  books,  accounts,  papers  and  records  of  such  other  busi- 
ness. 

§  1797m — 9.  The  commission  shall  prescribe  the  forms  of  all 
books,  accounts,  papers  and  records  required  to  be  kept,  and 
every  public  utility  is  required  to  keep  and  render  its  books, 
accounts,  papers  and  records  accurately  and  faithfully  in  the 
manner  and  form  prescribed  by  the  commission  and  to  comply 
with  all  directions  of  the  commission  relating  to  such  books, 
accounts,  papers  and  records. 

§  1797m — 10.  The  commission  shall  cause  to  be  prepared  suit- 
able blanks  for  carrying  out  the  purposes  of  this  act,  and  shall, 
when  necessary,  furnish  such  blanks  to  each  public  utility. 
944 


PUBLIC    UTILITY    LAW    OF   WISCONSIN       §  1797m — 11-15 

§  1797m — 11.  No  public  utility  shall  keep  any  other  books, 
accounts,  papers  or  records  of  the  business  transacted  than 
those  prescribed  or  approved  by  the  commission. 

§  1797m — 12.  Each  public  utility  shall  have  an  office  in  one 
of  the  towns,  village  or  cities  in  this  State  in  which  its  property 
or  some  part  thereof  is  located,  and  shall  keep  in  said  office  all 
such  books,  accounts,  papers  and  records  as  shall  be  required 
by  the  commission  to  be  kept  within  the  State.  No  books,  ac- 
counts, papers  or  records  required  by  the  commission  to  be  kept 
within  the  State  shall  be  at  any  time  removed  from  the  State, 
except  upon  such  conditions  as  may  be  prescribed  by  the  com- 
mission. 

§  1797m — 13.  The  accounts  shall  be  closed  annually  on  the 
30th  day  of  June  and  a  balance  sheet  of  that  date  promptly 
taken  therefrom.  On  or  before  the  first  day  of  August  following, 
such  balance  sheet  together  with  such  other  information  as  the 
commission  shall  prescribe,  verified  by  an  officer  of  the  public 
utility,  shall  be  filed  with  the  commission. 

§  1797m — 14.  1.  The  commission  shall  provide  for  the  ex- 
amination and  audit  of  all  accounts,  and  all  items  shall  be 
allocated  to  the  accounts  in  the  manner  prescribed  by  the 
commission. 

2.  The  agents,  accountants  or  examiners  employed  by  the 
commission  shall  have  authority  under  the  direction  of  the  com- 
mission to  inspect  and  examine  any  and  all  books,  accounts, 
papers,  records  and  memoranda  kept  by  such  public  utilities. 

§  1797m— 15.  1.  Every  public  utility  shall  carry  a  proper 
and  adequate  depreciation  account  whenever  the  commission 
after  investigation  shall  determine  that  such  depreciation  ac- 
count can  be  reasonably  required.  The  commission  .-hall  ascer- 
tain and  determine  what  are  the  proper  and  adequate  rates  of 
depreciation  of  the  several  classes  of  property  of  each  public 
utility.  The  rates  shall  be  such  as  will  provide  the  amounts  re- 
G0  945 


§  1797m— 16,  17  appendix  b 

quired  over  and  above  the  expense  of  maintenance,  to  keep  such 
property  in  a  state  of  efficiency  corresponding  to  the  progress 
of  the  industry.  Each  public  utility  shall  conform  its  depreci- 
ation accounts  to  such  rates  so  ascertained  and  determined  by 
the  commission.  The  commission  may  make  changes  in  such 
rates  of  depreciation  from  time  to  time  as  it  may  find  to  be 
necessary. 

2.  The  commission  shall  also  prescribe  rules,  regulations, 
and  forms  of  accounts  regarding  such  depreciation  which  the 
public  utility  is  required  to  carry  into  effect. 

3.  The  commission  shall  provide  for  such  depreciation  in  fix- 
ing the  rates,  tolls  and  charges  to  be  paid  by  the  public. 

4.  All  moneys  thus  provided  for  shall  be  set  aside  out  of  the 
earnings  and  carried  in  a  depreciation  fund.  The  moneys  in  this 
fund  may  be  expended  in  new  constructions,  extensions  or  ad- 
ditions to  the  property  of  such  public  utility,  or  invested,  and  if 
invested  the  income  from  the  investments  shall  also  be  carried 
in  the  depreciation  fund.  This  fund  and  the  proceeds  thereof 
shall  be  used  for  no  other  purpose  than  as  provided  in  this  sec- 
tion and  for  depreciation. 

§  1797m— 16.  The  commission  shall  keep  itself  informed  of 
all  new  construction,  extensions  and  additions  to  the  property 
of  such  public  utilities  and  shall  prescribe  the  necessary  forms, 
regulations  and  instructions  to  the  officers  and  employees  of  such 
public  utilities  for  the  keeping  of  construction  accounts,  which 
shall  clearly  distinguish  all  operating  expenses  and  new  con- 
struction. 

§  1797m— 17.  1.  Nothing  in  this  act  shall  be  taken  to  pro- 
hibit a  public  utility  from  entering  into  any  reasonable  arrange- 
ment with  its  customers  or  consumers  or  with  its  employees, 
for  the  division  or  distribution  of  its  surplus  profits,  or  providing 
for  a  sliding  scale  of  charges,  or  other  financial  device  that  may 
be  practicable  and  advantageous  to  the  parties  interested.  No 
such  arrangement  or  device  shall  be  lawful  until  it  shall  be  found 
by  the  commission,  after  investigation,  to  be  reasonable  and 
946 


PUBLIC    UTILITY    LAW    OF   WISCONSIN       §  1797m — 18,    19 

just  and  not  inconsistent  with  the  purposes  of  this  act.  Such 
arrangement  shall  be  under  the  supervision  and  regulation  of 
the  commission. 

2.  The  commission  shall  ascertain,  determine  and  order  such 
rates,  charges  and  regulations  as  may  be  necessary  to  give  effect 
to  such  arrangement,  but  the  right  and  power  to  make  such 
other  and  further  changes  in  rates,  charges  and  regulations  as 
the  commission  may  ascertain  and  determine  to  be  necessary 
and  reasonable  and  the  right  to  revoke  its  approval  and  amend 
or  rescind  all  orders  relative  thereto  is  reserved  and  vested  in  the 
commission  notwithstanding  any  such  arrangement  and  mutual 
agreement. 

§  1797m — 18.  Each  public  utility  shall  furnish  to  the  com- 
mission in  such  form  and  at  such  time  as  the  commission  shall 
require,  such  accounts,  reports  and  information  as  shall  show 
in  itemized  detail:  (1)  the  depreciation  per  unit,  (2)  the  salaries 
and  wages  separately  per  unit,  (3)  legal  expenses  per  unit,  (4) 
taxes  and  rentals  separately  per  unit,  (5)  the  quantity  and 
value  of  material  used  per  unit,  (6)  the  receipts  from  residuals, 
by-products,  services  or  other  sales  separately  per  unit,  (7) 
the  total  and  net  cost  per  unit,  (8)  the  gross  and  net  profit  per 
unit,  (9)  the  dividends  and  interest  per  unit,  (10)  surplus  or 
reserve  per  unit,  (11)  the  prices  per  unit  paid  by  consumers;  and 
in  addition  such  other  items,  whether  of  a  nature  similar  to  those 
hereinbefore  enumerated  or  otherwise,  as  the  commission  may 
prescribe  in  order  to  show  completely  and  in  detail  the  entire 
operation  of  the  public  utility  in  furnishing  the  unit  of  its  prod- 
uct or  service  to  the  public. 

§  1797m— 19.  1.  The  commission  shall  publish  annual  re- 
ports showing  its  proceedings  and  showing  in  tabular  form  the 
details  per  unit  as  provided  in  section  17(.>7ni  18  for  all  the 
public  utilities  of  each  kind  in  the  State,  and  such  monthly  or 
occasional  reports  as  it  may  deem  advisable. 

2.  The  commission  shall  also  publish  in  its  annual  reports  tin- 
value  of  all  the  property  actually  used  and  useful  tor  the  con- 

947 


§  1797m— 20-23  appendix  b 

venience  of  the  public  and  the  value  of  the  physical  property  ac- 
tually used  and  useful  for  the  convenience  of  the  public,  of  every 
public  utility  as  to  whose  rates,  charges,  service  or  regulations 
any  hearing  has  been  held  by  the  commission  under  section 
1797m — 45  and  1797m — 46  or  the  value  of  whose  property  has 
been  ascertained  by  it  under  section  1797m — 5. 

§  1797m— 20.  All  facts  and  information  in  the  possession 
of  the  commission  shall  be  public  and  all  reports,  records, 
files,  books,  accounts,  papers  and  memoranda  of  every  nature 
whatsoever  in  their  possession  shall  be  open  to  inspection  by 
the  public  at  all  reasonable  times  except  as  provided  in  section 
1797m— 21. 

§  1797m — 21.  1.  Whenever  the  commission  shall  determine 
it  to  be  necessary  in  the  interest  of  the  public  to  withhold  from 
the  public  any  facts  or  information  in  its  possession,  such  facts 
may  be  withheld  for  such  period  after  the  acquisition  thereof 
not  exceeding  ninety  days  as  the  commission  may  determine. 

2.  No  facts  or  information  shall  be  withheld  by  the  commis- 
sion from  the  public  for  a  longer  period  than  ninety  days  nor  be 
so  withheld  for  any  reason  whatsoever  other  than  in  the  interest 
of  the  public. 

§  1797m — 22.  The  commission  shall  ascertain  and  prescribe 
for  each  kind  of  public  utility  suitable  and  convenient  stand- 
ard commercial  units  of  product  or  service.  These  shall  be 
lawful  units  for  the  purposes  of  this  act. 

§  1797m — 23.  1.  The  commission  shall  ascertain  and  fix 
adequate  and  serviceable  standards  for  the  measurement  of 
quality,  pressure,  initial  voltage  or  other  condition  pertaining  to 
the  supply  of  the  product  or  service  rendered  by  any  public 
utility  and  prescribe  reasonable  regulations  for  examination 
and  testing  of  such  product  or  service  and  for  the  measurement 
thereof. 

2.  It  shall  establish  reasonable  rules,  regulations,  specifica- 
948 


PUBLIC  UTILITY  LAW  OF  WISCONSIN       §  1797m— 24-27 

tions  and  standards  to  secure  the  accuracy  of  all  meters  and  ap- 
pliances for  measurements,  and  every  public  utility  is  required 
to  carry  into  effect  all  orders  issued  by  the  commission  relative 
thereto. 

3.  Nothing  contained  in  this  section  shall  limit  in  any  manner 
any  powers  or  authority  vested  in  municipal  corporations  as 
provided  in  section  1797m — 87. 

§  1797m — 24.  1.  The  commission  shall  provide  for  the  ex- 
amination and  testing  of  any  and  all  appliances  used  for  the 
measuring  of  any  product  of  service  of  a  public  utility. 

2.  Any  consumer  or  user  may  have  any  such  appliance  tested 
upon  payment  of  the  fees  fixed  by  the  commission. 

3.  The  commission  shall  declare  and  establish  reasonable 
fees  to  be  paid  for  testing  such  appliances  on  the  request  of  the 
consumers  or  users,  the  fee  to  be  paid  by  the  consumer  or  user 
at  the  time  of  his  request,  but  to  be  paid  by  the  public  utility 
and  repaid  to  the  consumer  or  user  if  the  appliance  be  found  de- 
fective or  incorrect  to  the  disadvantage  of  the  consumer  or  user. 

§  1797m — 25.  The  commission  may  purchase  such  materials, 
apparatus  and  standard  measuring  instruments  for  such  ex- 
aminations and  tests  as  it  may  deem  necessary. 

§  1797m — 26.  The  commission,  its  agents,  experts  or  ex- 
aminers, shall  have  power  to  enter  upon  any  premises  occupied 
by  any  public  utility  for  the  purpose  of  making  the  exami- 
nations and  tests  provided  in  this  act  and  to  set  up  and  use  on 
such  premises  any  apparatus  and  appliances  and  occupy  reason- 
able space  therefor. 

§  1797m— 27.  Every  public  utility  shall  file  with  the  com- 
mission within  a  time  to  he  fixed  by  the  commission,  schedules 
which  shall  he  open  to  public  inspection,  showing  all  rates,  tolls 
and  charges  which  it  has  established  and  which  are  in  force  at 
the  time  for  any  service  performed  by  it  within  the  State,  or  for 
any  service  in  connection  therewith  i  r  performed  by  any  public 

ill!) 


§  1797m— 28-32  appendix  b 

utility  controlled  or  operated  by  it.  The  rates,  tolls  and  charges 
shown  on  such  schedules  shall  not  exceed  the  rates,  tolls  and 
charges  in  force  April  1,  1907. 

§  1797m — 28.  Every  public  utility  shall  file  with  and  as  a  part 
of  such  schedule  all  rules  and  regulations  that  in  any  manner 
effect  the  rates  charged  or  to  be  charged  for  any  service. 

§  1797m— 29.  A  copy  of  so  much  of  said  schedules  as  the 
commission  shall  deem  necessary  for  the  use  of  the  public 
shall  be  printed  in  plain  type,  and  kept  on  file  in  every  station 
or  office  of  such  public  utility  where  payments  are  made  by 
the  consumers  or  users,  open  to  the  public,  in  such  form  and 
place  as  to  be  readily  accessible  to  the  public  and  as  can  be  con- 
veniently inspected. 

§  1797m— 30.  Where  a  schedule  of  joint  rates  or  charges  is 
or  may  be  in  force  between  two  or  more  public  utilities,  such 
schedules  shall  in  like  manner  be  printed  and  filed  with  the 
commission  and  so  much  thereof  as  the  commission  shall  deem 
necessary  for  the  use  of  the  public  shall  be  filed  in  every  such 
station  or  office  as  provided  in  section  1797m — 29. 

§  1797m — 31.  No  change  shall  thereafter  be  made  in  any 
schedule,  including  schedules  of  joint  rates,  except  upon  ten 
days'  notice  to  the  commission,  and  all  such  changes  shall  be 
plainly  indicated  upon  existing  schedules,  or  by  filing  new 
schedules  in  lieu  thereof  ten  days  prior  to  the  time  the  same 
are  to  take  effect;  provided,  that  the  commission,  upon  appli- 
cation of  any  public  utility,  may  prescribe  a  less  time  within 
which  a  reduction  may  be  made. 

§  1797m — 32.  Copies  of  all  new  schedules  shall  be  filed  as 
hereinbefore  provided  in  every  station  and  office  of  such  public 
utility  where  payments  are  made  by  consumers  or  users  ten 
days  prior  to  the  time  the  same  are  to  take  effect,  unless  the 
commission  shall  prescribe  a  less  time. 
950 


PUBLIC  UTILITY  LAW  OF  WISCONSIN       §  1797m — 33-38 

§  1797m — 33.  It  shall  be  unlawful  for  any  public  utility  to 
charge,  demand,  collect  or  receive  a  greater  or  less  compensation 
for  any  service  performed  by  it  within  the  State  or  for  any 
service  in  connection  therewith  than  is  specified  in  such  printed 
schedules,  including  schedules  of  joint  rates,  as  may  at  the 
time  be  in  force,  or  to  demand,  collect  or  receive  any  rate,  toll 
or  charge  not  specified  in  such  schedule.  The  rates,  tolls  and 
charges  named  therein  shall  be  the  lawful  rates,  tolls  and 
charges  until  the  same  are  changed  as  provided  in  this  act. 

§  1797m — 34.  The  commission  may  prescribe  such  changes 
in  the  form  in  which  the  schedules  are  issued  by  any  public 
utility  as  may  be  found  to  be  expedient. 

§  1797m — 35.  The  commission  shall  provide  for  a  compre- 
hensive classification  of  service  for  each  public  utility  and  such 
classification  may  take  into  account  the  quantity  used,  the 
time  when  used,  the  purpose  for  which  used,  and  any  oilier 
reasonable  consideration.  Each  public  utility  is  required  to 
conform  its  schedules  of  rates,  tolls  and  charges  to  such  classi- 
fication. 

§  1797m — 36.  The  commission  shall  have  power  to  adopt 
reasonable  and  proper  rules  and  regulations  relative  to  all  in- 
spections, tests,  audits  and  investigations  and  to  adopt  and 
publish  reasonable  and  proper  rules  to  govern  its  proceedings 
and  to  regulate  the  mode  and  manner  of  all  investigations  ami 
hearings  of  public  utilities  and  other  parties  before  it.  All  hear- 
ings shall  be  open  to  the  public. 

§  1797m— 37.  The  commission  shall  have  authority  to  in- 
quire into  the  management  of  the  business  of  all  public  utilities 
and  shall  keep  itself  informed  as  to  the  manner  and  method 
in  which  the  same  is  conducted,  and  shall  have  the  right  to 
obtain  from  any  public  utility  all  necessary  information  to  en- 
able the  commission  to  perform  its  duties. 

§  1797m— 38.     1.  Tin'   commission  or  any  commissioner  or 

951 


§  1797m — 39-41  appendix  b 

any  person  or  persons  employed  by  the  commission  for  that 
purpose  shall,  upon  demand,  have  the  right  to  inspect  the 
books,  accounts,  papers,  records  and  memoranda  of  any  public 
utility  and  to  examine,  under  oath,  any  officer,  agent  or  em- 
ployee of  such  public  utility  in  relation  to  its  business  and 
affairs. 

2.  Any  person  other  than  one  of  said  commissioners,  who 
shall  make  such  demand  shall  produce  his  authority  to  make 
such  inspection. 

§  1797m — 39.  1.  The  commission  may  require,  by  order 
or  subpoena  to  be  served  on  any  public  utility  in  the  same  man- 
ner that  a  summons  is  served  in  a  civil  action  in  the  circuit 
court,  the  production  within  this  State  at  such  time  and  place 
as  it  may  designate,  of  any  books,  accounts,  papers  or  records 
kept  by  said  public  utility  in  any  office  or  place  without  the 
State  of  Wisconsin,  or  verified  copies  in  lieu  thereof,  if  the  com- 
mission shall  so  order,  in  order  that  an  examination  thereof 
may  be  made  by  the  commission  or  under  its  direction. 

2.  Any  public  utility  failing  or  refusing  to  comply  with  any 
such  order  or  subpoena  shall,  for  each  day  it  shall  so  fail  or  re- 
fuse, forfeit  and  pay  into  the  state  treasury  a  sum  of  not  less 
than  fifty  dollars  nor  more  than  five  hundred  dollars. 

§  1797m — 40.  The  commission  is  authorized  to  employ  such 
engineers,  examiners,  experts,  clerks,  accountants  and  other 
assistants  as  it  may  deem  necessary,  at  such  rates  of  com- 
pensation as  it  may  determine  upon. 

§  1797m — 41.  1.  For  the  purpose  of  making  any  investi- 
gation with  regard  to  any  public  utility  the  commission  shall 
have  power  to  appoint,  by  an  order  in  writing,  an  agent  whose 
duties  shall  be  prescribed  in  such  order. 

2.  In  the  discharge  of  his  duties  such  agent  shall  have  every 
power  whatsoever  of  an  inquisitorial  nature  granted  in  this 
act  to  the  commission  and  the  same  powers  as  a  court  commis- 
sioner with  regard  to  the  taking  of  depositions ,  and  all  powers 
952 


PUBLIC   UTILITY   LAW  OF  WISCONSIN       §  1797m — 42,   43 

granted  by  law  to  a  court  commissioner  relative  to  depositions 
are  hereby  granted  to  such  agent. 

3.  The  commission  may  conduct  any  number  of  such  in- 
vestigations contemporaneously  through  different  agents,  and 
may  delegate  to  such  agent  the  taking  of  all  testimony  bearing 
upon  any  investigation  or  hearing.  The  decision  of  the  com- 
mission shall  be  based  upon  its  examination  of  all  testimony 
and  records.  The  recommendations  made  by  such  agents  shall 
be  advisory  only  and  shall  not  preclude  the  taking  of  further 
testimony  if  the  commission  so  order  nor  further  investigation. 

§  1797m— 42.  1.  Every  public  utility  shall  furnish  to  the 
commission  all  information  required  by  it  to  carry  into  effect 
the  provisions  of  this  act,  and  shall  make  specific  answers  to 
all  questions  submitted  by  the  commission. 

2.  Any  public  utility  receiving  from  the  commission  any 
blanks  with  directions  to  fill  the  same,  shall  cause  the  same  to 
be  properly  filled  out  so  as  to  answer  fully  and  correctly  each 
question  therein  propounded,  and  in  case  it  is  unable  to  answer 
any  question,  it  shall  give  a  good  and  sufficient  reason  for  such 
failure;  and  said  answer  shall  be  verified  under  oath  by  the 
president,  secretary,  superintendent  or  general  manager  of 
such  public  utility  and  returned  to  the  commission  at  its  office 
within  the  period  fixed  by  the  commission. 

3.  Whenever  required  by  the  commission,  every  public 
utility  shall  deliver  to  the  commission  any  or  all  maps,  pro- 
files, contracts,  reports  of  engineers  and  all  documents,  books, 
accounts,  papers  and  records  or  copies  of  any  or  all  of  the  same, 
with  a  complete  inventory  of  all  its  property,  in  such  form  as 
the  commission  may  direct. 

§  1797m — 43.  Upon  a  complaint  made  against  any  public 
utility  by  any  mercantile,  agricultural  or  manufacturing  so- 
ciety or  by  any  body  politic  or  municipal  organization  or  by 
any  twenty-five  persons,  firms,  corporations  or  associations, 
that  any  of  the  rates,  tolls,  charges  or  schedules  m-  any  joint 
rate  or  rates  are  in  any  respect  i  nreasonable  or  unjustly  dis- 

953 


§  1797m— 44-46  appendix  b 

criminatory,  or  that  any  regulation,  measurement,  practice 
or  act  whatsoever  affecting  or  relating  to  the  production,  trans- 
mission, delivery  or  furnishing  of  heat,  light,  water  or  power 
or  any  service  in  connection  therewith  or  the  conveyance  of 
any  telephone  message  or  any  service  in  connection  therewith 
is  in  any  respect  unreasonable,  insufficient  or  unjustly  dis- 
criminatory, or  that  any  service  is  inadequate  or  cannot  be  ob- 
tained, the  commission  shall  proceed,  with  or  without  notice, 
to  make  such  investigation  as  it  may  deem  necessary  or  con- 
venient. But  no  order  affecting  said  rates,  tolls,  charges, 
schedules,  regulations,  measurements,  practice  or  act  com- 
plained of  shall  be  entered  by  the  commission  without  a  formal 
public  hearing. 

§  1797m — 44.  The  commission  shall,  prior  to  such  formal 
hearing,  notify  the  public  utility  complained  of  that  a  com- 
plaint has  been  made,  and  ten  days  after  such  notice  has  been 
given  the  commission  may  proceed  to  set  a  time  and  place  for  a 
hearing  and  an  investigation  as  hereinafter  provided. 

§  1797m — 45.  The  commission  shall  give  the  public  utility 
and  the  complainant,  if  any,  ten  days'  notice  of  the  time  and 
place  when  and  where  such  hearing  and  investigation  will  be 
held  and  such  matters  considered  and  determined.  Both  the 
public  utility  and  complainant  shall  be  entitled  to  be  heard 
and  shall  have  process  to  enforce  the  attendance  of  witnesses. 

§  1797m — 46.  1.  If  upon  such  investigation  the  rates,  tolls, 
charges,  schedules  or  joint  rates,  shall  be  found  to  be  unjust, 
unreasonable,  insufficient  or  unjustly  discriminatory  or  to  be 
preferential  or  otherwise  in  violation  of  any  provisions  of  this 
act,  the  commission  shall  have  power  to  fix  and  order  substi- 
tuted therefor  such  rate  or  rates,  tolls,  charges  or  schedules  as 
shall  be  just  and  reasonable. 

2.  If  upon  such  investigation  it  shall  be  found  that  any 
regulation,  measurement,  practice,  act,  or  service  complained 
of  is  unjust,  unreasonable,  insufficient,  preferential,  unjustly 
954 


PUBLIC  UTILITY  LAW  OF  WISCONSIN       §  1797m— 47-50 

discriminatory  or  otherwise  in  violation  of  any  of  the  provisions 
of  this  act,  or  if  it  be  found  that  any  service  is  inadequate  or 
that  any  reasonable  service  cannot  be  obtained,  the  commis- 
sion shall  have  power  to  substitute  therefor  such  other  regu- 
lations, measurements,  practices,  service  or  acts  and  to  make 
such  order  respecting,  and  such  changes  in  such  regulations, 
measurements,  practices,  service  or  acts  as  shall  be  just  and 
reasonable. 

§  1797m — 47.  If  upon  such  investigation  it  shall  be  found 
that  any  rate,  toll,  charge,  schedule  or  joint  rate  or  rates  is  un- 
just, unreasonable,  insufficient  or  unjustly  discriminatory  or 
preferential  or  otherwise  in  violation  of  any  of  the  provisions 
of  this  act,  or  that  any  regulation,  practice,  act  or  service  com- 
plained of  is  unjust,  unreasonable,  insufficient,  preferential,  or 
otherwise  in  violation  of  the  provisions  of  this  act,  or  if  it  be 
found  that  any  service  is  inadequate  or  that  any  reasonable 
service  cannot  be  obtained,  the  public  utility  found  to  be  at 
fault  shall  pay  the  expenses  incurred  by  the  commission  upon 
such  investigation. 

§  1797m — 48.  The  commission  may,  in  its  discretion,  when 
complaint  is  made  of  more  than  one  rate  or  charge,  order 
separate  hearings  thereon,  and  may  consider  and  determine 
the  several  matters  complained  of  separately  and  at  such  times 
as  it  may  prescribe.  No  complaint  shall  at  any  time  be  dis- 
missed because  of  the  absence  of  direct  damage  to  the  com- 
plainant. 

§  1797m — 49.  Whenever  the  commission  shall  believe  that 
any  rate  or  charge  may  be  unreasonable  or  unjustly  discrimi- 
natory or  that  any  service  is  inadequate  or  cannot  be  obtained 
or  that  an  investigation  of  any  matter  relating  to  any  public 
utility  should  for  any  reason  be  made,  it  may  on  its  own  motion, 
summarily  investigate  the  same  with  or  without  notice. 

§  1797m— 50.  If ,  after  making  such  investigation,  the  commis- 
sion becomes  satisfied  that  sufncienl  grounds  exist  i<>  warrant 

955 


§  1797111—51-53  APPENDIX    B 

a  formal  hearing  being  ordered  as  to  the  matters  so  investi- 
gated, it  shall  furnish  such  public  utility  interested  a  statement 
notifying  the  public  utility  of  the  matters  under  investigation. 
Ten  days  after  such  notice  has  been  given  the  commission  may 
proceed  to  set  a  time  and  place  for  a  hearing  and  an  investiga- 
tion as  hereinbefore  provided. 

§  1797m — 51.  Notice  of  the  time  and  place  for  such  hearing 
shall  be  given  to  the  public  utility  and  to  such  other  interested 
persons  as  the  commission  shall  deem  necessary  as  provided 
in  section  1797m— 45,  and  thereafter  proceedings  shall  be  had 
and  conducted  in  reference  to  the  matter  investigated  in  like 
manner  as  though  complaint  had  been  filed  with  the  commis- 
sion relative  to  the  matter  investigated,  and  the  same  order 
or  orders  may  be  made  in  reference  thereto  as  if  such  investi- 
gation had  been  made  on  complaint. 

§  1797m — 52.  Any  public  utility  may  make  complaint  as  to 
any  matter  affecting  its  own  product  or  service  with  like  effect 
as  though  made  by  any  mercantile,  agricultural  or  manufac- 
turing society,  body  politic  or  municipal  organization  or  by  any 
twenty-five  persons,  firms,  corporations  or  associations. 

§  1797m — 53.  1.  Each  of  the  commissioners  and  every  agent 
provided  for  in  section  1797m— 41  of  this  act  for  the  pur- 
poses mentioned  in  this  act,  shall  have  power  to  administer 
oaths,  certify  to  official  acts,  issue  subpoenas,  compel  the  at- 
tendance of  witnesses  and  the  production  of  books,  accounts, 
papers,  records,  documents  and  testimony. 

2.  In  case  of  disobedience  on  the  part  of  any  person  or  per- 
sons to  comply  with  any  order  of  the  commission  or  any  com- 
missioner or  any  subpoena,  or,  on  the  refusal  of  any  witness  to 
testify  to  any  matter  regarding  which  he  may  be  lawfully  in- 
terrogated before  the  commission  or  its  agent  authorized  as 
provided  in  section  1797m — 41,  it  shall  be  the  duty  of  the  cir- 
cuit court  of  any  county  or  the  judge  thereof,  on  application 
of  a  commissioner  to  compel  obedience  by  attachment  pro- 
95G 


PUBLIC  UTILITY  LAW  OF  WISCONSIN       §  1797m— 54-58 

ceedings  for  contempt  as  in  the  case  of  disobedience  of  the  re- 
quirements of  a  subpoena  issued  from  such  court  or  a  refusal  to 
testify  therein. 

§  1797m— 54.  1.  Each  witness  who  shall  appear  before  the 
commission  or  its  agent  by  its  order,  shall  receive  for  his  at- 
tendance the  fees  and  mileage  now  provided  for  witnesses  in 
civil  cases  in  courts  of  record,  which  shall  be  audited  and  paid 
by  the  State  in  the  same  manner  as  other  expenses  are  audited 
and  paid,  upon  the  presentation  of  proper  vouchers  sworn  to  by 
such  witnesses  and  approved  by  the  chairman  of  the  commis- 
sion. 

2.  No  witness  subpoenaed  at  the  instance  of  parties  other 
than  the  commission  shall  be  entitled  to  compensation  from 
the  State  for  attendance  or  travel  unless  the  commission  shall 
certify  that  his  testimony  was  material  to  the  matter  investi- 
gated. 

§  1797m — 55.  The  commission  or  any  party  may,  in  any 
investigation,  cause  the  depositions  of  witnesses  residing  within 
or  without  the  State  to  be  taken  in  the  manner  prescribed  by 
law  for  like  depositions  in  civil  actions  in  circuit  courts. 

§  1797m — 56.  A  full  and  complete  record  shall  be  kept  of 
all  proceedings  had  before  the  commission  or  its  agent  on  any 
formal  investigation  had  and  all  testimony  shall  be  taken  down 
by  the  stenographer  appointed  by  the  commission. 

§  1797m — 57.  "Whenever  any  complaint  is  served  upon  the 
commission  under  the  provisions  of  seel  ion  1797m— 04  of  this 
act,  the  commission  shall,  before  said  action  is  reached  U>r  trial, 
cause  a  certified  transcript  of  all  proceedings  had  and  testimony 
taken  upon  such  investigation  to  be  filed  with  the  clerk  of  the 
circuit  court  of  the  county  where  the  action  is  pending. 

§  1797m — 58.  A  transcribed  copy  of  the  evidence  and  pro- 
ceedings or  any  specific  part  thereof,  on  any  investigation  taken 

957 


§  1797m— 59,  60  appendix  b 

by  the  stenographer  appointed  by  the  commission,  being  certi- 
fied by  such  stenographer  to  be  a  true  and  correct  transcript 
in  longhand  of  all  the  testimony  on  the  investigation  of  a  par- 
ticular witness,  or  of  other  specific  part  thereof,  carefully  com- 
pared by  him  with  his  original  notes,  and  to  be  a  correct  state- 
ment of  the  evidence  and  proceedings  had  on  such  investigation 
so  purporting  to  be  taken  and  transcribed,  shall  be  received 
in  evidence  with  the  same  effect  as  if  such  reporter  were  present 
and  testified  to  the  fact  so  certified. 

§  1797m — 59.  A  copy  of  such  transcript  shall  be  furnished 
on  demand  free  of  cost  to  any  party  to  such  investigations.. 

§  1797m — 60.  1.  Whenever,  upon  an  investigation  made 
under  the  provisions  of  this  act,  the  commission  shall  find  any 
existing  rates,  tolls,  charges,  schedules  or  joint  rate  made  un- 
der the  provisions  of  this  act,  the  commission  shall  find  any 
existing  rates,  tolls,  charges,  schedules  or  joint  rate  or  rates  to 
be  unjust,  unreasonable,  insufficient  or  unjustly  discriminatory 
or  to  be  preferential  or  otherwise  in  violation  of  any  of  the 
provisions  of  this  act,  the  commission  shall  determine  and  by 
order  fix  reasonable  rates,  tolls,  charges,  schedules  or  joint  rates 
to  be  imposed,  observed  and  followed  in  the  future  in  lieu  of 
those  found  to  be  unjust,  unreasonable,  insufficient  or  unjustly 
discriminatory  or  preferential  or  otherwise  in  violation  of  any 
of  the  provisions  of  this  act. 

2.  Whenever,  upon  an  investigation  made  under  the  pro- 
visions of  this  act,  the  commission  shall  find  any  regulations, 
measurements,  practices,  acts  or  service  to  be  unjust,  unreason- 
able, insufficient,  preferential,  unjustly  discriminatory  or  other- 
wise in  violation  of  any  of  the  provisions  of  this  act;  or  shall 
find  that  any  service  is  inadequate  or  that  any  service  which 
can  be  reasonably  demanded  cannot  be  obtained,  the  commis- 
sion shall  determine  and  declare  and  by  order  fix  reasonable 
measurements,  regulations,  acts,  practices  or  service  to  be 
furnished,  imposed,  observed  and  followed  in  the  future  in  lieu 
of  those  found  to  be  unjust,  unreasonable,  insufficient,  prefer- 
958 


PUBLIC   UTILITY   LAW   OF  WISCONSIN       §  1797m— 61,   62 

ential,  unjustly  discriminatory,  inadequate  or  otherwise  in 
violation  of  this  act  as  the  case  may  be,  and  shall  make  such 
other  order  respecting  such  measurement,  regulation,  act, 
practice  or  service  as  shall  be  just  and  reasonable. 

3.  Whenever,  upon  an  investigation  made  under  the  pro- 
visions of  this  act,  the  commission  shall  find  that  any  rate, 
toll,  charge,  schedule  or  joint  rate  or  rates  is  unjust,  unreason- 
able, insufficient  or  unjustly  discriminatory  or  preferential  or 
otherwise  in  violation  of  any  of  the  provisions  of  this  act,  or 
that  any  measurement,  regulation,  practice,  act  or  service  com- 
plained of  is  unjust,  unreasonable,  insufficient,  preferential, 
unjustly  discriminatory  or  otherwise  in  violation  of  any  of  the 
provisions  of  this  act,  or  it  shall  find  that  any  service  is  inade- 
quate or  that  any  service  which  can  reasonably  be  demanded 
cannot  be  obtained,  the  commission  shall  ascertain  and  de- 
clare and  by  order  fix  the  expenses  incurred  by  the  commis- 
sion upon  such  investigation  and  shall  by  such  order  direct 
such  public  utility  to  pay  to  the  state  treasurer  within  twenty 
days  thereafter  such  expenses  so  incurred. 

4.  The  commission  shall  cause  a  certified  copy  of  all  such 
orders  to  be  delivered  to  an  officer  or  agent  of  the  public  utility 
affected  thereby,  and  all  such  orders  shall  of  their  own  force 
take  effect  and  become  operative  twenty  days  after  service 
thereof,  unless  a  different  time  be  provided  by  said  order. 

§  1797m — 61.  All  public  utilities  to  which  the  order  applies 
shall  make  such  changes  in  their  schedule  on  file  as  may  be 
necessary  to  make  the  same  conform  to  said  order,  and  no 
change  shall  thereafter  be  made  by  any  public  utility  in  any 
such  rates,  tolls  or  charges,  or  in  any  joint  rate  or  rates,  with- 
out the  approval  of  the  commission.  Certified  copies  of  all 
oilier  orders  of  the  commission  shall  be  delivered  to  the  public 
utility  affected  thereby  in  like  manner  and  the  Bame  shall  take 
effect  within  such  time  thereafter  as  the  commission  shall  pre- 
scribe. 

§  1797m — 62.  The  commission  may  at  any  time,  upon  notice 

959 


§  1797m— 63-65  appendix  b 

to  the  public  utility  and  after  opportunity  to  be  heard  as  pro- 
vided in  section  1797m— 45,  rescind,  alter  or  amend  any  order 
fixing  any  rate  or  rates,  tolls,  charges  or  schedules,  or  any  other 
order  made  by  the  commission,  and  certified  copies  of  the  same 
shall  be  served  and  take  effect  as  herein  provided  for  original 
orders. 

§  1797m— 63.  All  rates,  tolls,  charges,  schedules  and  joint, 
rates  fixed  by  the  commission  shall  be  in  force  and  shall  be 
prima  facie  lawful,  and  all  regulations,  practices  and  services 
prescribed  by  the  commission  shall  be  in  force  and  shall  be 
prima  facie  reasonable  until  finally  found  otherwise  in  an  ac- 
tion brought  for  that  purpose  pursuant  to  the  provisions  of 
section  1797m— 64. 

§  1797m— 64.  1.  Any  public  utility  and  any  person  or 
corporation  in  interest  being  dissatisfied  with  any  order  of  the 
commission  fixing  any  rate  or  rates,  tolls,  charges,  schedules, 
joint  rate  or  rates  or  any  order  fixing  any  regulations,  practices, 
act  or  service  may  commence  an  action  in  the  circuit  court  for 
Dane  county  against  the  commission  as  defendant  to  vacate 
and  set  aside  any  such  order  on  the  ground  that  the  rate  or 
rates,  tolls,  charges,  schedules,  joint  rate  or  rates,  fixed  in  such 
order  is  unlawful,  or  that  any  such  regulation,  practice,  act  or 
service  fixed  in  such  order  is  unreasonable,  in  which  action  the 
complaint  shall  be  served  with  the  summons. 

2.  The  answer  of  the  commission  to  the  complaint  shall  be 
served  and  filed  within  ten  days  after  service  of  the  complaint, 
whereupon  said  action  shall  be  at  issue  and  stand  ready  for 
trial  upon  ten  days'  notice  to  either  party. 

3.  All  such  actions  shall  have  precedence  over  any  civil 
cause  of  a  different  nature  pending  in  such  court,  and  the  cir- 
cuit court  shall  always  be  deemed  open  for  the  trial  thereof, 
and  the  same  shall  be  tried  and  determined  as  other  civil  ac- 
tions. 

§  1797m — 65.  Every  proceeding,  action  or  suit  to  set  aside, 
960 


PUBLIC   UTILITY   LAW   OF  WISCONSIN       §  1797m— 66-68 

vacate  or  amend  any  determination  or  order  of  the  commis- 
sion or  to  enjoin  the  enforcement  thereof  or  to  prevent  in  any 
way  such  order  or  determination  from  becoming  effective, 
shall  be  commenced,  and  every  appeal  to  the  courts  or  right 
of  recourse  to  the  courts  shall  be  taken  or  exercised  within 
ninety  days  after  the  entry  or  rendition  of  such  order  or  de- 
termination, and  the  right  to  commence  any  such  action,  pro- 
ceeding or  suit,  or  to  take  or  exercise  any  such  appeal  or  right 
of  recourse  to  the  courts,  shall  terminate  absolutely  at  the  end 
of  such  ninety  days  after  such  entry  or  rendition  thereof. 

§  1797m — 66.  No  injunction  shall  issue  suspending  or  stray- 
ing [staying]  any  order  of  the  commission,  except  upon  applica- 
tion to  the  circuit  court  or  presiding  judge  thereof,  notice  to 
the  commission,  and  hearing. 

§  1797m— 67.  1.  If,  upon  the  trial  of  such  action,  evidence 
shall  be  introduced  by  the  plaintiff  which  is  found  by  the  court 
to  be  different  from  that  offered  upon  the  hearing  before  the 
commission  or  its  authorized  agent,  or  additional  thereto,  the 
court,  before  proceeding  to  render  judgment  unless  the  parties 
to  such  action  stipulate  in  writing  to  the  contrary,  shall  trans- 
mit a  copy  of  such  evidence  to  the  commission  and  shall  stay 
further  proceedings  in  said  action  for  fifteen  days  from  the 
date  of  such  transmission. 

2.  Upon  the  receipt  of  such  evidence  the  commission  shall 
consider  the  same  and  may  alter,  modify,  amend  or  rescind 
its  order  relating  to  such  rate  or  rates,  tolls,  charges,  schedules, 
joint  rate  or  rates,  regulations,  practice,  act  or  service  com- 
plained of  in  said  action,  and  shall  report  its  action  thereon 
to  said  court  within  ten  days  from  l  he  receipt  of  such  evidence. 

§  1797m — 68.  1.  If  the  commission  shall  rescind  its  order 
complained  of,  the  action  shall  be  dismissed;  if  it  shall  alter, 
modify  or  amend  the  same,  such  altered,  modified  or  amended 
order  shall  take  the  place  of  the  original  order  complained  <>f, 
and  judgment  shall  be  rendered  thereon  as  though  made  by 
the  commission  in  the  first  instance. 

(il  96] 


§  1797m— 69-72  appendix  b 

2.  If  the  original  order  shall  not  be  rescinded  or  changed  by 
the  commission  judgment  shall  be  rendered  upon  such  original 
order. 

§  1797m — 69.  Either  party  to  said  action,  within  sixty  days 
after  service  of  a  copy  of  the  order  or  judgment  of  the  circuit 
court,  may  appeal  to  the  supreme  court.  Where  an  appeal 
is  taken  the  cause  shall,  on  the  return  of  the  papers  to  the  su- 
preme court,  be  immediately  placed  on  the  state  calendar  of 
the  then  pending  term  and  shall  be  assigned  and  brought  to  a 
hearing  in  the  same  manner  as  other  causes  on  the  state  cal- 
endar. 

§  1797m — 70.  In  all  trials,  actions  and  proceedings  arising 
under  the  provisions  of  this  act  or  growing  out  of  the  exercise 
of  the  authority  and  powers  granted  herein  to  the  commission, 
the  burden  of  proof  shall  be  upon  the  party  adverse  to  such 
commission  or  seeking  to  set  aside  any  determination,  require- 
ment, direction  or  order  of  said  commission,  to  show  by  clear 
and  satisfactory  evidence  that  the  determination,  requirement, 
direction  or  order  of  the  commission  complained  of  is  unreason- 
able or  unlawful  as  the  case  may  be. 

§  1797m — 71.  In  all  actions  and  proceedings  in  court  arising 
under  this  act  all  processes  shall  be  served  and  the  practice 
and  rules  of  evidence  shall  be  the  same  as  in  civil  actions,  ex- 
cept as  otherwise  herein  provided.  Every  sheriff  or  other 
officer  empowered  to  execute  civil  processes  shall  execute  any 
process  issued  under  the  provisions  of  this  act  and  shall  receive 
such  compensation  therefor  as  may  be  prescribed  by  law  for 
similar  services. 

§  1797m — 72.  No  person  shall  be  excused  from  testifying 
or  from  producing  books,  accounts  and  papers  in  any  proceed- 
ing based  upon  or  growing  out  of  any  violation  of  the  provisions 
of  this  act  on  the  ground  or  for  the  reason  that  the  testimony 
or  evidence,  documentary  or  otherwise,  required  by  him  may 
962 


PUBLIC   UTILITY   LAW  OF  WISCONSIN         §  1797m — 73,    74 

tend  to  incriminate  him  or  subject  him  to  penalty  or  forfeiture; 
but  no  person  having  so  testified  shall  be  prosecuted  or  sub- 
jected to  any  penalty  or  forfeiture  for  or  on  account  of  any 
transaction,  matter  or  thing  concerning  which  he  may  have 
testified  or  produced  any  documentary  evidence;  provided, 
that  no  person  testifying  shall  be  exempted  from  prosecution 
or  punishment  for  perjury  in  so  testifying. 

§  1797m — 73.  Upon  application  of  any  person  the  commis- 
sion shall  furnish  certified  copies,  under  the  seal  of  the  com- 
mission, of  any  order  made  by  it,  which  shall  be  prima  facie 
evidence  of  the  facts  stated  therein. 

§  1797m — 74.  1.  No  license,  permit  or  franchise  shall  be 
granted  to  any  person,  copartnership  or  corporation  to  own, 
operate,  manage  or  control  any  plant  or  equipment  for  the 
production,  transmission,  delivery  or  furnishing  of  heat,  light, 
water  or  power  in  any  municipality  where  there  is  in  operation 
under  an  indeterminate  permit  as  provided  in  this  act  a  public 
utility  engaged  in  similar  service  without  first  securing  from  the 
commission  a  declaration  after  a  public  hearing  of  all  parties 
interested,  that  public  convenience  and  necessity  require  such 
second  public  utility. 

2.  Any  existing  permit,  license  or  franchise  which  shall  con- 
tain any  term  whatsoever  interfering  with  the  existence  of  such 
second  public  utility  is  hereby  amended  in  such  a  manner  as 
to  permit  such  municipality  to  grant  an  indeterminate  permit 
for  the  operation  of  such  second  public  utility  pursuant  to  the 
provisions  of  this  act. 

3.  No  municipality  shall  hereafter  const  met  any  such  plant 
or  equipment  where  there  is  in  operation  under  an  indeterminate 
permit  as  provided  in  this  act,  in  such  municipality  :t  public 
Utility  engaged  in  similar  service,  without  first  securing  from 
the  commission  a  declaration,  after  a  public  hearing  of  all 
parties  interested,  that  public  convenience  and  necessity  re- 
quire such  municipal  public  utility.  Bui  nothing  in  this  sec- 
tion shall  be  construed  as  preventing  a  municipality  acquir- 

963 


§  1797m— 75-77  appendix  b 

ing  any  existing  plant  by  purchase  or  by  condemnation  as 
hereinafter  provided. 

4.  Nothing  in  this  section  shall  be  construed  so  as  to  pre- 
vent the  granting  of  an  indeterminate  permit  or  the  construc- 
tion of  a  municipal  plant  Where  the  existing  public  utility  is 
operating  without  an  indeterminate  permit  as  provided  in  this 
act. 

§  1797m— 75.  No  license,  permit  or  franchise  to  own,  oper- 
ate, manage  or  control  any  plant  or  equipment  for  the  pro- 
duction, transmission,  delivery  or  furnishing  of  heat,  light, 
water  or  power  shall  be  hereafter  granted,  or  transferred  ex- 
cept to  a  corporation  duly  organized  under  the  laws  of  the 
State  of  Wisconsin. 

§  1797m — 76.  Every  license,  permit  or  franchise  hereafter 
granted  to  any  public  utility  shall  have  the  effect  of  an  inde- 
terminate permit  subject  to  the  provisions  of  this  act,  and 
subject  to  the  provision  that  the  municipality  in  which  the  ma- 
jor part  of  its  property  is  situate  may  purchase  the  property 
of  such  public  utility  actually  used  and  useful  for  the  con- 
venience of  the  public  at  any  time  as  provided  herein,  paying 
therefor  just  compensation  to  be  determined  by  the  commission 
and  according  to  the  terms  and  conditions  fixed  by  said  com- 
mission. Any  such  municipality  is  authorized  to  purchase  such 
property  and  every  such  public  utility  is  required  to  sell  such 
property  at  the  value  and  according  to  the  terms  and  conditions 
determined  by  the  commission  as  herein  provided. 

§  1797m— 77.  Any  public  utility,  being  at  the  time  a  corpo- 
ration duly  organized  under  the  laws  of  the  State  of  Wisconsin, 
operating  under  an  existing  license,  permit  or  franchise  shall, 
upon  filing  at  any  time  prior  to  the  expiration  of  such  license, 
permit  or  franchise  and  prior  to  July  1,  1908,  with  the  clerk 
of  the  municipality  which  granted  such  franchise  and  with  the 
commission,  a  written  declaration  legally  executed  that  it 
surrenders  such  license,  permit  or  franchise,  receive  by  oper- 
ation of  law  in  lieu  thereof,  an  indeterminate  permit  as  pro- 
964 


PUBLIC   UTILITY   LAW   OF   WISCONSIN         §  1797m — 78,  79 

vided  in  this  act;  and  such  public  utility  shall  hold  such  per- 
mit under  all  the  terms,  conditions  and  limitations  of  this  act. 
The  filing  of  such  declaration  shall  be  deemed  a  waiver  by  such 
public  utility  of  the  right  to  insist  upon  the  fulfillment  of  any 
contract  theretofore  entered  into  relating  to  any  rate,  charge 
or  service  regulated  by  this  act. 

§  1797m — 78.  Any  public  utility  accepting  or  operating  un- 
der any  license,  permit  or  franchise  hereafter  granted  shall,  by 
acceptance  of  any  such  indeterminate  permit  be  deemed  to 
have  consented  to  a  future  purchase  of  its  property  actually 
used  and  useful  for  the  convenience  of  the  public  by  the  mu- 
nicipality in  which  the  major  part  of  it  is  situate  for  the  com- 
pensation and  under  the  terms  and  conditions  determined  by 
the  commission,  and  shall  thereby  be  deemed  to  have  waived 
the  right  of  requiring  the  necessity  of  such  taking  to  be  estab- 
lished by  the  verdict  of  a  jury,  and  to  have  waived  all  other 
remedies  and  rights  relative  to  condemnation,  except  such 
rights  and  remedies  as  are  provided  in  this  act. 

§  1797m — 79.  1.  Any  municipality  shall  have  the  power, 
subject  to  the  provisions  of  this  act,  to  construct  and  operate 
a  plant  and  equipment  or  any  part  thereof  for  the  production, 
transmission,  delivery  or  furnishing  of  heat,  light,  water  or 
power. 

2.  Any  municipality  shall  have  the  power,  subject  to  the 
provisions  of  this  act,  to  purchase  by  an  agreement  with  any 
public  utility  any  part  of  any  plant,  provided,  that  such  pur- 
chase and  the  terms  thereof  shall  be  approved  by  the  com- 
mission after  a  hearing  as  provided  in  seel  ions  1797m — 81  and 
1797m— 82. 

3.  Any  municipality  shall  have  the  power,  subjecl   to  the 
provisions  of  this  act  to  acquire  by  condemnation  the  prop 
erty  of  any  public  utility  actually  used  and  useful  for  the  con 
venience  of  the  public  then  operating  under  a  license,  permil 
or  franchise  existing  at  the  time  this  act  takes  effect,  or  oper- 
ating in  such  municipality  without  any  permil  <>v  franchise. 

in,;, 


§  1797m— 80-82  appendix  b 

4.  Any  municipality  shall  have  the  power,  subject  to  the  pro- 
visions of  this  act,  to  acquire  by  purchase  as  provided  in  this 
act,  the  property  of  any  public  utility  actually  used  and  useful 
for  the  convenience  of  the  public  operating  under  any  inde- 
terminate permit  as  provided  herein. 

§  1797m— 80.  If  the  municipality  shall  have  determined  to 
acquire  an  existing  plant  then  operated  under  a  license,  permit 
or  franchise  existing  at  the  time  this  act  takes  effect,  such  mu- 
nicipality shall  bring  an  action  in  the  circuit  court  against  the 
public  utility  as  defendant  praying  the  court  for  an  adjudication 
as  to  the  necessity  of  such  taking  by  the  municipality,  in  which 
action  the  complaint  shall  be  served  with  the  summons.  The 
public  utility  shall  serve  and  file  its  answer  to  such  complaint 
within  ten  days  after  the  service  thereof,  whereupon  such  action 
shall  be  at  issue  and  stand  ready  for  trial  upon  ten  days'  notice 
by  either  party.  Unless  the  parties  thereto  waive  a  jury,  the 
question  as  to  the  necessity  of  the  taking  of  such  property  by 
the  municipality  shall  be  as  speedily  as  possible  submitted  to  a 
jury. 

§  1797m— 81.  If  the  municipality  shall  have  determined  to 
acquire  an  existing  plant  and  the  public  utility  owning  such 
plant  shall  have  consented  to  the  taking  over  of  such  plant  by 
the  municipality  by  acceptance  of  an  indeterminate  permit  as 
provided  herein,  or,  in  case  such  public  utility  shall  not  have 
waived  or  consented  to  such  taking,  if  the  jury  shall  have  found 
that  a  necessity  exists  for  the  taking  of  such  plant,  then  the 
municipality  shall  give  speedy  notice  of  such  determination  and 
of  such  consent  or  such  verdict  of  a  jury  to  the  public  utility 
and  to  the  commission. 

§  1797m— 82.  The  commission  shall  thereupon  after  public 
hearing  and  within  three  months  from  the  receipt  of  such  notice 
and  upon  notice  to  the  municipality  and  the  public  utility  in- 
terested, by  order  fix  and  determine  and  certify  to  the  munic- 
ipal council  and  to  the  public  utility  just  compensation  to  be 
966 


PUBLIC   UTILITY   LAW  OF  WISCONSIN         §  1797m — 83-86 

paid  for  the  taking  of  the  property  of  such  public  utility  actually 
used  and  useful  for  the  convenience  of  the  public  and  all  other 
terms  and  all  conditions  of  sale  and  purchase  which  it  shall 
ascertain  to  be  reasonable.  The  compensation  and  other  terms 
and  the  conditions  of  sale  and  purchase  thus  certified  by  the 
commission  shall  constitute  the  compensation  and  terms  and 
conditions  to  be  paid,  followed  and  observed  in  the  purchase  of 
such  plant  from  such  public  utility.  Upon  the  filing  of  such 
certificate  with  the  clerk  of  such  municipality  the  exclusive  use 
of  the  property  taken  shall  vest  in  such  municipality. 

§  1797m — 83.  Any  public  utility  or  the  municipality  being 
dissatisfied  with  such  order  may  commence  and  prosecute  an 
action  in  the  circuit  court  to  alter  or  amend  such  order  or  any 
part  thereof  as  provided  in  sections  1797m — 64  to  1797m — 73, 
inclusive,  and  said  sections  so  far  as  applicable  shall  apply  to 
such  action. 

§  1797m— 84.  If  the  plaintiff  shall  not  establish  to  the  full 
satisfaction  of  the  court  that  the  compensation  fixed  and  de- 
termined in  such  order  is  unlawful  or  that  some  of  the  terms  or 
conditions  fixed  and  determined  therein  are  in  some  particulars 
unreasonable,  the  compensation,  terms  and  conditions  fixed  in 
said  order  shall  be  the  compensation,  terms  and  conditions  to  be 
paid,  followed  and  observed  in  the  purchase  of  said  plant  from 
such  public  utility. 

§  1797m — 85.  If  the  plaintiff  shall  establish  to  the  full  satis- 
faction of  the  court  and  the  court  shall  adjudge  that  such  com- 
pensation is  unlawful  or  that  some  of  such  terms  or  conditions 
are  unreasonable,  the  court  shall  remand  the  same  to  the  com- 
mission with  such  findings  of  fact  and  conclusions  of  law  as 
shall  set  forth  in  detail  the  reasons  for  such  judgment  and  the 
specific  particulars  in  which  .such  order  of  the  commission  is  ad- 
judged to  be  unreasonable  or  unlawful. 

§  1797m— 86.  1.  If  the  compensation  fixed  by  the  previous 
order  of  the  commission  be  adjudged  to  be  unlawful,  the  com- 

967 


§  1797m— 87  appendix  b 

mission  shall  forthwith  proceed  to  set  a  re-hearing  for  the  re- 
determination of  such  compensation  as  in  the  first  instance. 

2.  The  commission  shall  forthwith  otherwise  alter  and  amend 
such  previous  order  with  or  without  a  re-hearing  as  it  may  deem 
necessary  so  that  the  same  shall  be  reasonable  and  lawful  in 
every  particular. 

§  1797m— 87.  Every  municipal  council  shall  have  power. 
(1)  To  determine  by  contract,  ordinance  or  otherwise  the  qual- 
ity and  character  of  each  kind  of  product  or  service  to  be  fur- 
nished or  rendered  by  any  public  utility  furnishing  any  product 
of  service  within  said  municipality  and  all  other  terms  and  con- 
ditions not  inconsistent  with  this  act  upon  which  such  public 
utility  may  be  permitted  to  occupy  the  streets,  highways  or 
other  public  property  within  such  municipality  and  such  con- 
tract, ordinance  or  other  determination  of  such  municipality 
shall  be  in  force  and  prima  facie  reasonable.  Upon  complaint 
made  by  such  public  utility  or  by  any  qualified  complainant  as 
provided  in  section  1797m — 43,  the  commission  shall  set  a 
hearing  as  provided  in  sections  1797m — 45  and  1797m — 46  and 
if  it  shall  find  such  contract,  ordinance  or  other  determination 
to  be  unreasonable,  such  contract,  ordinance  or  other  determi- 
nation shall  be  void. 

(2)  To  require  of  any  public  utility  by  ordinance  or  other- 
wise such  additions  and  extensions  to  its  physical  plant  within 
said  municipality  as  shall  be  reasonable  and  necessary  in  the  in- 
terest of  the  public,  and  to  designate  the  location  and  nature  of 
all  such  additions  and  extensions,  the  time  within  which  they 
must  be  completed  and  all  conditions  under  which  they  must 
be  constructed  subject  to  review  by  the  commission  as  pro- 
vided in  subdivision  1  of  this  section. 

(3)  To  provide  for  a  penalty  for  non-compliance  with  the 
provisions  of  any  ordinance  or  resolution  adopted  pursuant  to 
the  provisions  hereof. 

(4)  The  power  and  authority  granted  in  this  section  shall 
exist  and  be  vested  in  said  municipalities,  anything  in  this  act 
to  the  contrary  notwithstanding. 

968 


PUBLIC   UTILITY   LAW   OF   WISCONSIN        §  1797m— 88,   89 

§  1797m— 88.  No  public  utility  or  any  agent  or  officer 
thereof,  or  any  agent  or  officer  of  any  municipality  constituting 
a  public  utility  as  denned  in  this  act  shall  offer  or  give  for  any 
purpose  to  any  political  committee  or  any  member  or  employee 
thereof,  to  any  candidate  for,  or  incumbent  of,  any  office  or  posi- 
tion under  the  constitution  or  laws  or  under  any  ordinance  of 
any  municipality  of  this  State,  or  to  any  person  at  the  request, 
or  for  the  advantage  of  all  or  any  of  them,  any  frank,  or  any 
privilege  withheld  from  any  person  for  any  product  or  service 
produced,  transmitted,  delivered,  furnished  or  rendered,  or  to 
be  produced,  transmitted,  delivered,  furnished  or  rendered  by 
any  public  utility,  or  the  conveyance  of  any  telephone  message 
or  communication  or  any  free  product  or  service  whatsoever. 

2.  No  political  committee  and  no  member  or  employee 
thereof,  no  candidate  for  and  no  incumbent  of  any  office  or  posi- 
tion under  the  constitution  or  laws  or  under  any  ordinance  of 
any  town  or  municipality  of  this  State,  shall  ask  for  or  accept 
from  any  public  utility  or  any  agent  or  officer  thereof,  or  any 
agent  or  officer  of  any  municipality  constituting  a  public  utility 
as  defined  in  this  act,  or  use  in  any  manner  or  for  any  purpose 
any  frank  or  privilege  withheld  from  any  person,  for  any  product 
or  service  produced,  transmitted,  delivered,  furnished  or  ren- 
dered, or  to  be  produced,  transmitted,  delivered,  furnished  or 
rendered  by  any  public  utility,  or  the  conveyance  of  any  tele- 
phone message  or  communication. 

3.  Any  violation  of  any  of  the  provisions  of  this  section  shall 
be  punished  by  imprisonment  in  the  state  prison  not  more  than 
five  years  nor  less  than  one  year  or  by  line  uo1  exceeding  one 
thousand  dollars  nor  less  than  two  hundred  dollars. 

§  1797m — 89.  1.  If  any  public  utility  or  any  agenl  or 
officer  thereof,  or  any  officer  of  any  municipality  constituting 
a  public  utility  as  defined  in  this  act  shall,  directly  or  indirectly, 
by  any  device  whatsoever  or  otherwise,  charge,  demand,  col- 
lect or  receive  from  any  person,  firm  or  corporation  :i  greater 
or  less  compensation  for  any  service  rendered  or  to  he  rendered 
by  it  in  or  affecting  or  relating  to  the  production,  transmission, 

969 


§  1797m— 90,  91  appendix  b 

delivery  or  furnishing  of  heat,  light,  water  or  power  or  the  con- 
veyance of  telephone  messages  or  for  any  service  in  connection 
therewith  than  that  prescribed  in  the  published  schedules  or 
tariffs  then  in  force  or  established  as  provided  herein,  or  than 
it  charges,  demands,  collects  or  receives  from  any  other  person, 
firm  or  corporation  for  a  like  and  contemporaneous  service,  such 
public  utility  shall  be  deemed  guilty  of  unjust  discrimination 
which  is  hereby  prohibited  and  declared  to  be  unlawful,  and 
upon  conviction  thereof  shall  forfeit  and  pay  into  the  state 
treasury  not  less  than  one  hundred  dollars  nor  more  than  one 
thousand  dollars  for  each  offense;  and  such  agent  or  officer  so 
offending  shall  be  deemed  guilty  of  a  misdemeanor  and  upon 
conviction  thereof  shall  be  punished  by  a  fine  of  not  less  than 
fifty  dollars  nor  more  than  one  hundred  dollars  for  each  offense. 

§  1797m— 90.  It  shall  be  unlawful  for  any  public  utility  to 
demand,  charge,  collect  or  receive  from  any  person,  firm  or 
corporation  less  compensation  for  any  service  rendered  or  to 
be  rendered  by  said  public  utility  in  consideration  of  the  fur- 
nishing by  said  person,  firm  or  corporation  of  any  part  of  the 
facilities  incident  thereto;  provided  nothing  herein  shall  be 
construed  as  prohibiting  any  public  utility  from  renting  any 
facilities  incident  to  the  production,  transmission,  delivery  or 
furnishing  of  heat,  light,  water  or  power  or  the  conveyance  of 
telephone  messages  and  paying  a  reasonable  rental  therefor. 

§  1797m — 91.  If  any  public  utility  make  or  give  any  undue  or 
unreasonable  preference  or  advantage  to  any  particular  person, 
firm  or  corporation  or  shall  subject  any  particular  person,  firm 
or  corporation  to  any  undue  or  unreasonable  prejudice  or  dis- 
advantage in  any  respect  whatsoever,  such  public  utility  shall 
be  deemed  guilty  of  unjust  discrimination  which  is  hereby 
prohibited  and  declared  unlawful. 

The  furnishing  by  any  public  utility,  of  any  product  or  serv- 
ice at  the  rates  and  upon  the  terms  and  conditions  provided 
for  in  any  existing  contract  executed  prior  to  April  1,  1907, 
shall  not  constitute  a  discrimination  within  the  meaning  speci- 
970 


PUBLIC  UTILITY  LAW  OF  WISCONSIN       §  1797m— 92-94 

fied.  Any  person,  firm  or  corporation  violating  the  provisions 
of  this  section  shall  be  deemed  guilty  of  a  misdemeanor  and 
on  conviction  thereof  shall  be  punished  by  a  fine  of  not  less 
than  fifty  dollars  nor  more  than  one  thousand  dollars  for  each 
offense. 

§  1797m— 92.  It  shall  be  unlawful  for  any  person,  firm  or 
corporation  knowingly  to  solicit,  accept  or  receive  any  rebate, 
concession  or  discrimination  in  respect  to  any  service  in  or 
affecting  or  relating  to  the  production,  transmission,  delivery 
or  furnishing  of  heat,  light,  water  or  power  or  the  conveying 
of  telephone  messages  within  this  State,  or  for  any  service  in 
connection  therewith  whereby  any  such  service  shall,  by  any 
device  whatsoever,  or  otherwise,  be  rendered  free  or  at  a  less 
rate  than  that  named  in  the  published  schedules  and  tariffs  in 
force  as  provided  herein,  or  whereby  any  service  or  advantage 
is  received  other  than  is  herein  specified.  Any  person,  firm  or 
corporation  violating  the  provisions  of  this  section  shall  be 
deemed  guilty  of  a  misdemeanor  and  on  conviction  thereof 
shall  be  punished  by  a  fine  of  not  less  than  fifty  dollars  nor 
more  than  one  thousand  dollars  for  each  offense. 

§  1797m — 93.  If  any  public  utility  shall  do  or  cause  to  be 
done  or  permit  to  be  done  any  matter,  act  or  thing  in  this  act 
prohibited  or  declared  to  be  unlawful,  or  shall  omit  to  do  any 
act,  matter  or  thing  required  to  be  done  by  it,  such  public 
utility  shall  be  liable  to  the  person,  firm  or  corporation  injured 
thereby  in  treble  the  amount  of  damages  sustained  in  conse- 
quence of  such  violation;  provided,  that  any  recovery  as  in 
this  section  provided,  shall  in  no  manner  affect  a  recovery  by 
the  State  of  the  penalty  prescribed  for  such  violation. 

§  1797m — 94.  Any  officer,  agent  or  employee  of  any  public 
utility  or  of  any  municipality  constituting  a  public  utility  as 
defined  in  this  act  who  shall  fail  or  refuse  t<»  (ill  out  and  return 
any  blanks  as  required  by  this  act,  or  shall  fail  or  refuse  to 
answer  any  question  therein  propounded,  or  shall  knowingly 

071 


§  1797m— 95,  96  appendix  b 

or  willfully  give  a  false  answer  to  any  such  question  or  shall 
evade  the  answer  to  any  such  question  where  the  fact  inquired 
of  is  within  his  knowledge  or  who  shall,  upon  proper  demand, 
fail  or  refuse  to  exhibit  to  the  commission  or  any  commissioner 
or  any  person  authorized  to  examine  the  same,  any  book, 
paper,  account,  record,  or  memoranda  of  such  public  utility 
which  is  in  his  possession  or  under  his  control  or  who  shall  fail 
to  properly  use  and  keep  his  system  of  accounting  or  any  part 
thereof  as  prescribed  by  the  commission,  or  who  shall  refuse  to 
do  any  act  or  thing  in  connection  with  such  system  of  account- 
ing when  so  directed  by  the  commission  or  its  authorized  repre- 
sentative, shall  be  deemed  guilty  of  a  misdemeanor  and  upon 
conviction  thereof  shall  be  punished  by  a  fine  of  not  less  than 
one  thousand  dollars  for  each  offense. 

2.  And  a  penalty  of  not  less  than  five  hundred  dollars  nor 
more  than  one  thousand  dollars  shall  be  recovered  from  the 
public  utility  for  each  such  offense  when  such  officer,  agent  or 
employee  acted  in  obedience  to  the  direction,  instruction  or  re- 
quest of  such  public  utility  or  any  general  officer  thereof. 

§  1797m— 95.  1.  If  any  public  utility  shall  violate  any  pro- 
vision of  this  act,  or  shall  do  any  act  herein  prohibited  or  shall 
fail  or  refuse  to  perform  any  duty  enjoined  upon  it  for  which  a 
penalty  has  not  been  provided,  or  shall  fail,  neglect  or  refuse  to 
obey  any  lawful  requirement  or  order  made  by  the  commission 
or  the  municipal  council  or  any  judgment  or  decree  made  by 
any  court  upon  its  application,  for  every  such  violation,  failure 
or  refusal  such  public  utility  shall  forfeit  and  pay  into  the 
treasury  a  sum  not  less  than  one  hundred  dollars  nor  more  than 
one  thousand  dollars  for  each  such  offense. 

2.  In  construing  and  enforcing  the  provisions  of  this  sec- 
tion the  act,  omission  or  failure  of  any  officer,  agent  or  other 
person  acting  for  or  employed  by  any  public  utility  acting 
within  the  scope  of  his  employment  shall  in  every  case  be 
deemed  to  be  the  act,  omission  or  failure  of  such  public  utility. 

§  1797m— 96.  If  any  officer  of  any  town,  village  or  city  con- 
972 


PUBLIC  UTILITY  LAW  OF  WISCONSIN       §  1797m — 97-99 

stituting  a  public  utility  as  defined  in  this  act  shall  do  or  cause 
to  be  done  or  permit  to  be  done  any  matter,  act  or  thing  in 
this  act  prohibited  or  declared  to  be  unlawful,  or  shall  omit, 
fail,  neglect  or  refuse  to  do  any  act,  matter  or  thing  required 
by  this  act  of  such  officer  to  be  done,  or  shall  omit,  fail,  neglect 
or  refuse  to  perform  any  duty  enjoined  upon  him  and  relating 
directly  or  indirectly  to  the  enforcement  of  this  act,  or  shall 
omit,  fail,  neglect  or  refuse  to  obey  any  lawful  requirement  or 
order  made  by  the  commission  or  any  judgment  or  decree  made 
by  the  court  upon  its  application,  for  every  such  violation, 
failure  or  refusal  such  officer  shall  be  deemed  guilty  of  a  mis- 
demeanor and  upon  conviction  thereof  shall  be  punished  by  a 
fine  of  not  less  than  fifty  dollars  nor  more  than  five  hundred 
dollars.       ' 

§  1797m — 97.  1.  Any  person  who  shall  destroy,  injure  or 
interfere  with  any  apparatus  or  appliance  owned  or  operated 
by  or  in  charge  of  the  commission  or  its  agent  shall  be  deemed 
guilty  of  a  misdemeanor  and  upon  conviction  shall  be  punished 
by  fine  not  exceeding  one  hundred  dollars  or  imprisonment  for 
a  period  not  exceeding  thirty  days  or  both. 

2.  Any  public  utility  permitting  the  destruction,  injury  to, 
or  interference  with,  any  such  apparatus  or  appliance,  shall 
forfeit  a  sum  not  exceeding  one  thousand  dollars  for  each  of- 
fense. 

§  1797m — 98.  Every  day  during  which  any  public  utility  or 
any  officer,  agent  or  employee  thereof  shall  fail  to  observe  and 
comply  with  any  order  or  direction  of  the  commission  or  to 
perform  any  duly  enjoined  by  this  act  shall  constitute  a  sepa- 
rate and  distinct  violation  of  such  order  or  direction  or  of  this 
act  as  the  case  may  be. 

§  1797m— 99.     1.  The  commission  shall  have  power,  when 
deemed  by  it   necessary  to  prevent    injury   to  the  business  or 
interests  of  the  people  or  any  public  utility  of  this  State  in  ca  i 
of  any  emergency  to  be  judged  of  by  the  commission,  to  tempo 

07:: 


§  1797m— 100-102  appendix  b 

rarily  alter,  amend,  or  with  the  consent  of  the  public  utility 
concerned,  suspend  any  existing  rates,  schedules  and  order 
relating  to  or  affecting  any  public  utility  or  part  of  any  public 
utility  in  this  State. 

2.  Such  rates  so  made  by  the  commission  shall  apply  to 
one  or  more  of  the  public  utilities  in  this  State  or  to  any  portion 
thereof  as  may  be  directed  by  the  commission,  and  shall  take 
effect  at  such  time  and  remain  in  force  for  such  length  of  time 
as  may  be  prescribed  by  the  commission. 

§  1797m— 100.  Whenever,  after  hearing  and  investigation 
as  provided  in  this  act,  the  commission  shall  find  that  any 
rate,  toll,  charge,  regulation  or  practice  for,  in,  or  affecting  or 
relating  to  the  production,  transmission,  delivery  or  furnishing 
of  heat,  light,  water  or  power  or  the  conveying  of  any  tele- 
phone message  or  any  service  in  connection  therewith  not 
hereinbefore  specifically  designated,  is  unreasonable  or  un- 
justly discriminatory,  it  shall  have  the  power  to  regulate  the 
same  as  provided  in  sections  1797m — 43  to  1797m — 51  and 
1797m— 60  to  1797m— 62,  inclusive. 

§  1797m — 101.  1.  Every  public  utility  shall,  whenever  an 
accident  attended  with  loss  of  human  life  occurs  within  this 
State  upon  its  premises  or  directly  or  indirectly  arising  from  or 
connected  with  its  maintenance  or  operation,  give  immediate 
notice  thereof  to  the  commission. 

2.  In  the  event  of  any  such  accident  the  commission,  if  it 
deem  the  public  interest  require  it,  shall  cause  an  investigation 
to  be  made  forthwith,  which  investigation  shall  be  held  in  the 
locality  of  the  accident,  unless  for  greater  convenience  of  those 
concerned  it  shall  order  such  investigation  to  be  held  at  some 
other  place;  and  said  investigation  may  be  adjourned  from  place 
to  place  as  may  be  found  necessary  and  convenient.  The  com- 
mission shall  seasonably  notify  the  public  utility  of  the  time  and 
place  of  the  investigation. 

§  1797m — 102.  1.  The  commission  shall  inquire  into  any 
neglect  or  violation  of  the  laws  of  this  State  by  any  public 

974 


PUBLIC   UTILITY  LAW   OF   WISCONSIN       §  1797m — 103-105 

utility  doing  business  therein,  or  by  the  officers,  agents  or  em- 
ployees thereof  or  by  any  person  operating  the  plant  of  any  pub- 
lic utility,  and  shall  have  the  power  and  it  shall  be  its  duty  to 
enforce  the  provisions  of  this  act  as  well  as  all  other  laws  re- 
lating to  public  utilities,  and  to  report  all  violations  thereof  to 
the  attorney  general. 

2.  Upon  the  request  of  the  commission  it  shall  be  the  duty  of 
the  attorney  general  or  the  district  attorney  of  the  proper 
county  to  aid  in  any  investigation,  hearing  or  trial  had  under 
the  provisions  of  this  act,  and  to  institute  and  prosecute  all  nec- 
essary actions  or  proceedings  for  the  enforcement  of  this  act  and 
of  all  other  laws  of  this  State  relating  to  public  utilities  and  for 
the  punishment  of  all  violations  thereof. 

3.  Any  forfeiture  or  penalty  herein  provided  shall  be  recov- 
ered and  suit  therein  shall  be  brought  in  the  name  of  the  State 
of  Wisconsin  in  the  circuit  court  for  Dane  county.  Complaint 
for  the  collection  of  any  such  forfeiture  may  be  made  by  the 
commission  or  any  member  thereof,  and  when  so  made  the  ac- 
tion so  commenced  shall  be  prosecuted  by  the  attorney  general. 

4.  The  commission  shall  have  authority  to  employ  counsel  in 
any  proceeding,  investigation,  hearing  or  trial. 

§  1797m— 103.  A  substantial  compliance  with  the  require- 
ments of  this  act  shall  be  sufficient  to  give  effect  to  all  the  rules, 
orders,  acts  and  regulations  of  the  commission  and  they  shall 
not  be  declared  inoperative,  illegal  or  void  for  any  omission  of  a 
technical  nature  in  respect  thereto. 

§  1797m— 104.  This  act  shall  not  have  the  effect  to  release 
or  waive  any  right  of  action  by  the  State  or  by  any  person  for 
any  right,  penalty  or  forfeiture  which  may  have  arisen  or  which 
may  hereafter  arise,  under  any  law  of  this  State;  and  all  pen- 
alties and  forfeitures  accruing  under  this  act  shall  be  cumula- 
tive and  a  suit  for  any  recovery  of  one  shall  not  be  a  bar  to  the 
recovery  of  any  other  penalty. 

§  1797m— 105.  1.  Unless  the  oommissioD  shall  otherwise 
order,  it  shall  be  unlawful  for  any  ]  mblic  utility  within  this  Si  ate 

•.IT.") 


§  1797m — 106,  107       .    appendix  b 

to  demand,  collect  or  receive  a  greater  compensation  for  any 
service  than  the  charge  fixed  on  the  lowest  schedules  of  rates 
for  the  same  service  on  the  first  day  of  April,  1907. 

2.  Every  public  utility  in  this  State  shall,  within  thirty  days 
after  the  passage  and  publication  of  this  act,  file  in  the  office  of 
the  commission,  copies  of  all  schedules  of  rates  and  charges  in- 
cluding joint  rates,  in  force  on  the  first  day  of  April,  1907,  and 
all  rates  in  force  at  any  time  subsequent  to  said  date. 

3.  Any  public  utility  desiring  to  advance  or  discontinue  any 
such  rate  or  rates  may  make  application  to  the  commission  in 
writing  stating  the  advance  in  or  discontinuation  of  the  rate  or 
rates  desired,  giving  the  reasons  for  such  advance  or  discon- 
tinuation. 

4.  Upon  receiving  such  application  the  commission  shall  fix 
a  time  and  place  for  hearing  and  give  such  notice  to  interested 
parties  as  it  shall  deem  proper  and  reasonable.  If,  after  such 
hearing  and  investigation,  the  commission  shall  find  that  the 
change  or  discontinuation  applied  for  is  reasonable,  fair  and 
just,  it  shall  grant  the  application  either  in  whole  or  in  part. 

5.  Any  public  utility  being  dissatisfied  with  any  order  of  the 
commission  made  under  the  provisions  of  this  section  may  com- 
mence an  action  against  it  in  the  circuit  court  in  the  manner 
provided  in  sections  1797m— 64  to  1797m — 73,  inclusive,  of  this 
act,  which  action  shall  be  tried  and  determined  in  the  same 
manner  as  is  provided  in  said  sections. 

§  1797m — 106.  The  employment  of  agents,  experts,  engi- 
neers, accountants,  examiners  or  assistants  by  the  commission 
as  provided  in  this  act,  and  the  payment  of  their  compensation 
and  travelling  and  other  expenses,  shall  be  under  the  provisions 
of  section  1,  chapter  362,  of  the  laws  of  1905,  and  acts  amenda- 
tory thereof. 

§  1797m — 107.  A  sum  sufficient  to  carry  out  the  provisions 
of  this  act  is  appropriated  out  of  any  money  in  the  state  treas- 
ury not  otherwise  appropriated,  not  exceeding  fifty-two  thou- 
sand dollars. 
976 


PUBLIC    UTILITY    LAW    OF    WISCONSIN        §  1797m — 108 

§  1797m — 108.  All  acts  and  parts  of  acts  conflicting  with 
the  provisions  of  this  act  are  repealed  in  so  far  as  they  are  in- 
consistent herewith. 

Section  2.  Section  925— 97a,  statutes  of  1898,  chapter  389, 
laws  of  1905,  and  chapter  459,  laws  of  1905,  are  repealed. 

Section  3.  This  act  shall  take  effect  and  be  in  force  from  and 
after  its  passage  and  publication. 
Approved  July  9,  1907. 


62  977 


CONTENTS  OF  APPENDIX  B. 


§  1797m— 1  Public  Utility  Law: 
definitions;  "public 
utility,"  "municipal 
council,"  "munici- 
pality," "service,"  §  1797m- 
"  indeterminate  per- 
mit," "commis-  1797m- 
sions," 

1797m — 2     Railroad  commission's 
powers. 

1797m— 3     Utility  charges  to  be        1797m- 
reasonable  and  just. 

1797m — 4     Facilities  to  be  granted        1797m- 
to     other     utilities; 
complaint    and    ap- 
peal. 1797m- 

1797m — 5     Utility  property;  valu- 
ation. 1797m- 

1797m — 6     Valuation;        commis-        1797m- 
sion's    hearing    and 
report.  1797m— 

1797m — 7     Revaluation. 

1797m — 8     Uniform  accounting  by 

utilities;  other  busi-        1797m- 
ness  separate. 

1797m — 9     Forms  of  bookkeeping;        1797m- 
prescription. 

1797m— 10  Blanks.  1797m- 

1797m — 11  No  other  books,  etc.,  to        1797m- 
be  kept  than  those 
prescribed     or     ap-        1797m- 
proved  by  commis- 
sion. 1797m- 

1797m — 12  Books:    office   for;    no 

removal  from  State.        1797m- 

1797m — 13  Balance     sheets     filed        1797m- 
annually. 

1797m — 14  Audit  and  inspection.  1797m — 

1797m — 15  Depreciation  rates  and 

978 


accounts;  commis- 
sion's rules;  depreci- 
ation fund  and  use 
thereof. 

16  New  constructions;  ac- 
counting. 

17  Profit-sharing  and  slid- 
ing scales;  when  and 
while  commission 
approves. 

18  Report  by  utilities; 
items. 

19  Commission's  reports, 
annual  and  other; 
values  shown. 

20  Commission's  records 
public. 

21  Temporary  secrecy. 

22  Units  of  products  or 
service. 

23  Standard  measure- 
ments; accurate  ap- 
pliances. 

24  Tests  of  measuring  in- 
struments; fees. 

■25  Public  equipment  for 
tests. 

26  Entry  upon  premises. 

-27  Publicity  of  rate  sched- 
ules. 

-28  Publicity  of  rules  and 
regulations. 

-29  Files  accessible  to  pub- 
lic. 

-30  Publicity  of  joint  rates. 

-31  Changes  of  rates;  ten 
days'  notice. 

32  Publicity  of  revised 
schedules. 


APPENDIX   B 


1797m— 33 

1797m— 34 

1797m— 35 

1797m— 36 

1797m— 37 

1797m— 38 

1797m— 39 

1797m— 40 

1797m^l 

1797m-42 

1797m— 43 

1797m— 44 
1797m — 45 

1797m— 46 

1797m— 47 

1797m— 48 

1797m— 49 
1797m— 50 
1797m— 51 
1797m— 52 
1797m— 53 

1797m— 54 

1797m— 55 
1797m— 56 
1797m— 57 


Unlawful     to     depart 

from  schedules. 
Schedules'   forms  pre- 
scribed. 
Classification  of  utility 

service. 
Commission's  rules  of 

procedure. 
Business  management; 

inquiries. 
Books   subject   to   in- 
spection. 
Judicial  process  to  ob- 
tain papers. 
Commission's         em- 
ployees. 
Agents      of      commis- 
sions; powers. 
Response  of  utilities  to 

commission's  calls. 
Complaint  by  consum- 
ers. 
Hearing  on  complaint. 
Ten    days'    notice    of 

hearing. 
Commission  to  fix  rates 

and  regulations. 
Costs    of    investiga- 
tion. 
Separate  rate  hearing; 
absence     of     direct 
damage. 
Summary       investiga- 
tions. 
Followed    by    general 

hearings. 
Hearings;  notices  and 

procedure. 
Utilities      may      com- 
plain. 
Evidences     and     wit- 
nesses;   proceedings 
for  contempt. 
Witness  fees  and  mile- 
age. 
Depositions. 
Stenographic  records. 
In  court  actions,  com- 


§  1797m— 58 

1797m— 59 
1797m— 60 


1797m— 61 
1797m— 62 
1797m— 63 

1797m— 64 

1797m— 65 

1797m— 66 
1797m— 67 

1797m— 68 


1797m— 69 

1797m— 70 
1797m— 71 


mission  to  file  testi- 
mony. 
Certified  transcripts  of 
testimony     as     evi- 
dence. 
Free     transcripts     for 

parties. 
Commission  to  deter- 
mine rates  and  regu- 
lations; utility  at 
fault  to  pay  costs; 
orders,  service  and 
effect . 
Utilities  to  conform  to 

order  made. 
Commission     may 

change  orders. 
Findings    of    commis- 
sion prima  facie  law- 
ful and  reasonable. 
Utility  dissatisfied  with 
order  of  commission; 
action  to  set   aside; 
precedence  on  calen- 
dar. 
Action  to  set  aside  or- 
der  of   commission, 
ninety  days  for. 
Injunction   procedure; 
order  of  commission. 
New    evidence    before 
court;     stay     while 
commission      recon- 
siders. 
Upon      commission's 
refinding,  rescission, 
alteration  or  amend- 
ment of  order;  judg- 
ment on  original  or- 
der;    conclusion    of 
trial. 
Appeal     to     supreme 

court. 
Burden  of  proof. 
Court   procedure;  ser- 
vice of  process; 
evidence;  powers 
and  compensation  of 

9TB 


APPENDIX    B 


sheriff  and  other  offi- 
cers. 
§  1797m — 72  Incriminating  evi- 

dence ;  production  of 
books,  accounts  and 
papers. 

1797m — 73  Distribution  of  orders 
of  commission ;  or- 
ders as  prima  facie 
evidence. 

1797m — 74  Competition  of  utili- 
ties, municipalities 
and  others. 

1797m — 75  Foreign  utilities  ex- 
cluded. 

1797m — 76  Grants  hereafter  to  be 
indeterminate ;  mu- 
nicipal acquisition. 

1797m — 77  Voluntary  change  to 
indeterminate  plan; 
contract  waiver  im- 
plied. 

1797m — 78  Grant  hereafter;  im- 
plied consent  and 
waiver. 

1797m — 79  Municipal  powers  un- 
der utility  law. 

1797m — 80  Plants  non-existing, 
municipality's  ac- 
tion to  acquire. 

1797m — 81  Under  indeterminate 
permit ;  municipal- 
ity's notice  for  ac- 
quisition. 

1797m — 82  Compensation  for 
property  taken  of 
public  utility  to  be 
determined  by  com- 
mission and  certi- 
fied; public  hearing; 
notice;  filing  certifi- 
cate. 

1797m — 83  Appeal  to  court  from 
compensation  order. 

1797m — 84  If  decision  for  commis- 
sion. 

1797m — 85  If  decision  for  utility. 

1797m — 86  Reconsideration  of,  or 

980 


1797m- 


1797m- 


rehearing  as  to  com- 
pensation; alteration 
or  amendment  of 
previous  order. 
§  1797m — 87  Power  of  municipal 
council  to  regulate 
utilities;  appeal. 
1797m — 88  Franks  and  privileges 
to  political  commit- 
tees and  candidates; 
penalty. 

-89  Unjust  discrimina- 
tions; definition  and 
penalty. 

-90  Facilities  by  public 
utilities,  in  exchange 
for  compensation 
prohibited ;  excep- 
tions or  qualifica- 
tions. 
1797m — 91  Undue  preference  or 
prejudice  by  public 
utility;  penalty. 

-92  Rebates,  concessions 
and  discriminations 
unlawful;  penalty. 

-93  Utility's  liability  for 
damages;  treble 

damages. 

-94  Information,  papers 
and  accounting;  of- 
ficers, agents  or  em- 
ployee's of  utilities; 
delinquency  penal. 
1797m — 95  Violations  by  utilities 
in  general,  penalty; 
utility  responsible 
for  agents. 

-96  Municipal  officers'  de- 
linquency penal. 

-97  Interference  with  com- 
mission's equipment 
penal. 

-98  Every  day's  violations 
distinct. 

-99  Temporary  alteration 
or  suspension  of 
rates. 


1797m- 


1797m- 


1797m- 


1797m- 
1797m- 

1797m- 

1797m- 


APPENDIX    B 


1797m — 100  Followed  by  perma- 
nent rate  regula- 
tion. 

1797m — 101  Lives  lost;  utility 
must  report;  inves- 
tigation. 

1797m — 102  Law  enforcing  power 
of  commission;  at- 
torney general's  or 
district  attorney's 
aid  in  prosecution; 
suit  to  recover  for- 
feiture or  penalty; 
suit  in  name  of 
State,  in  specified 
court ;  power  to  em- 
ploy counsel. 

1797m — 103  Commission's  work; 
rules,   orders,   acts 


and  regulations  of, 
technical  omissions 
not  to  invalidate. 

1797m— 104  Other  rights  of  ac- 
tion ;  release  or 
waiver;  penalties 
cumulative. 

1797m— 105  Rates  of  April  1, 
1907,  to  govern, 
unless;  reports 
thereof;  proceed- 
ings to  change. 

1797m — 106  Employee's  of  com- 
mission, and  their 
compensation. 

1797m — 107  Appropriation. 

1797m — 108  Conflicting  laws  re- 
pealed. 


981 


APPENDIX  C. 

WILLCOX  v.  CONSOLIDATED  GAS  COMPANY. 
212  U.  S.  19. 

[January  4,  1909.] 


APPENDIX  C. 

WILLCOX  v.  CONSOLIDATED  GAS  COMPANY. 

212  U.  S.  19. 
Nos.  396,  397  and  398.— October  Term,  1908. 


Appeals  from  the 
Circuit  Court  of  the 
United  States  for 
the  Southern  Dis- 
trict of  New  York. 


William  R.  Willcox  et  al.,  Constituting  ^ 
the  Public  Service  Commission,  &c, 
of  New  York,  Appellants, 

396  v. 
Consolidated    Gas    Company    of    New 

York. 
The  City  of  New  York,  Appellant, 

397  v. 
Consolidated    Gas    Company    of    New 

York. 
William  S.  Jackson,  as  Attorney  Gen- 
eral of  the  State  of  New  York,  Ap- 
pellant, 

398  v. 
Consolidated    Gas    Company    of    New 

York. 

[January  4,  1909.] 

HEADNOTES.* 

It  is  not  a  question  of  discretion  or  comity  for  the  Federal  court  to  take 
jurisdiction  of  a  case;  it  is  the  duty  of  thai  court  to  take  jurisdiction 
when  properly  appealed  to;  and  it  should  not  be  criticized  for  so  doing 
even  though  the  case  be  one  of  local  interest.  Cohens  v.  Virginia,  6 
Wheat.  (19  U.  S.)  264,  404,  5  Sup.  Ct.  257.  The  righl  of  a  party 
plaintiff  to  choose  the  Federal  court  cannot  be  properly  denied.  Re 
Metropolitan  Receivership,  208  U.  S.  90,  1  10. 

Rates,  when  fixed  by  legislative  authority,  for  public  service  corpora 
tions,  should  allow  a  fair  return  upon  the  reasonable  value  of  the 

♦Headnotes,  Statement  of  Case  and  Opinion  are  official;  L.  ed   and  Sup. 

Ct.  citations  arc  not   in  original. 

985 


APPENDIX   C 

property  at  the  time  it  is  being  used,  but  the  legislative  act  will  not  be 
declared  invalid  by  the  courts  unless  the  rates  are  so  unreasonably 
low  that  their  enforcement  would  amount  to  taking  the  property  for 
public  use  without  compensation.  San  Diego  Land  and  Town  Co. 
Cases,  174  U.  S.  739,  43  L.  ed.  1154,  19  Sup.  Ct.  257;  s.  c.  189  U.  S. 
439,  47  L.  ed.  892,  23  Sup.  Ct.  571. 

Except  in  very  clear  cases,  courts  should  not  interfere  with  state  rate 
legislation  before  the  legislation  goes  into  effect.  Knoxville  v.  Water 
Co.,  212  U.  S.  1. 

Value  of  the  property  employed  being  an  essential  element  in  determin- 
ing whether  a  rate  is  or  is  not  confiscatory,  and  being  also  largely  a 
matter  of  opinion,  where  the  determination  of  the  question  depends 
upon  such  value,  a  court  of  equity  should  hesitate  to  interfere  by  in- 
junction to  suspend  the  rate  before  it  goes  into  operation  and  a  fair 
trial  has  been  made. 

Franchises  of  public  service  corporations  are  property  and  cannot  be 
taken  or  used  by  others  without  compensation,  and,  where  a  State 
has  by  legislative  enactment  permitted  such  corporations  to  capitalize 
such  franchises,  their  value  at  the  time  of  such  capitalization  should 
be  included  in  the  value  of  the  property  as  an  element  for  fixing  rates; 
but  no  increased  value  of  such  franchises  should  be  allowed. 

Public  service  corporations,  such  as  gas  companies,  are  subject  to  the 
legislative  right  to  fix  rates  which  permit  not  more  than  a  fair  return 
on  the  property  used. 

Whether  a  rate  yields  such  a  fair  return  as  not  to  be  confiscatory  de- 
pends upon  circumstances,  locality  and  risk,  and  no  particular  rate 
can  be  established  for  all  cases. 

Under  all  the  circumstances  of  this  case  this  court  concurs  with  the  court 
below  that  six  per  cent  is  a  fair  return  on  the  value  of  property  em- 
ployed in  supplying  gas  in  the  city  of  New  York,  and  a  rate  yielding 
that  return  is  not  confiscatory. 

In  estimating  value  of  franchises  for  the  purpose  of  fixing  rates,  it  is  im- 
material that  the  corporation  is  taxed  on  a  greater  value  than  that 
allowed  if  it  charges  its  taxes  as  operating  expenses  in  determining  net 
income. 

Where  a  public  service  corporation  has  a  monopoly,  such  as  of  supply- 
ing gas  in  a  large  city,  "  good  will "  cannot  be  considered  as  an  element 
of  value  of  the  property  employed. 

For  purpose  of  fixing  rates  the  value  of  property  employed  should  be 
determined  as  of  the  time  when  the  inquiry  is  made,  and,  as  a  general 
rule,  the  corporation  is  entitled  to  the  benefit  of  increased  value  since 
acquisition. 

A  provision  in  a  state  statute,  requiring  a  public  service  corporation  to 

986 


APPENDIX   C 

perform  its  service  in  such  a  manner  that  its  entire  plant  would  have 
to  be  rebuilt  at  a  cost  on  which  no  return  could  be  obtained  at  the  rate 
fixed,  deprives  the  company  of  its  ability  to  secure  such  return  and  is 
unconstitutional  and  void. 

Ex  parte  Young,  209  U.  S.  123,  followed  as  to  the  unconstitutionality  of 
provisions  in  a  state  statute  for  penalties  for  violations  so  enormous 
as  to  be  overwhelming. 

Provisions  in  a  gas  rate  bill  for  rate,  pressure  and  penalties  for  violation, 
may  be,  as  held  in  this  case,  separable  and  the  unconstitutionality  of 
the  provisions  as  to  pressure  and  penalties  will  not  affect  the  provi- 
sions as  to  rate. 

Provision  in  a  gas  rate  act  establishing  one  rate  for  the  municipality  and 
another  for  individual  consumers  is  not  an  unreasonable  classification 
and  does  not  render  the  act  unconstitutional  under  the  equal  protec- 
tion clause  of  the  Fourteenth  Amendment. 

Where  none  of  the  different  classes  of  consumers  complain  of  different 
rates  the  corporation  cannot  complain  of  such  differences  provided 
the  total  receipts  are  sufficient  to  yield  an  adequate  return. 

Where,  as  in  this  case,  in  an  action  brought  before  the  rate  takes  effect, 
complainant  fails  to  sustain  the  burden  of  clearly  showing  that  a  rate 
act  is  confiscatory,  the  bill  should  be  dismissed  without  prejudice  to 
right  of  the  complainant  to  bring  another  action  after  the  rate  goes 
into  effect  if  it  then  proves  to  be  confiscatory. 

So  held  in  regard  to  the  New  York  Eighty-Cent  Gas  Law. 

157  Fed.  Rep.  849,  reversed. 

STATEMENT   OF   CASE. 

The  appellee,  complainant  below,  filed  its  bill  May  1,  1906, 
in  the  United  States  Circuit  Court  for  the  Southern  District 
of  New  York  against  the  city  of  New  York,  the  Attorney  Gen- 
eral of  the  State,  the  District  Attorney  of  New  York  County 
and  the  Gas  Commission  of  the  State,  to  enjoin  the  enforce- 
ment of  certain  acts  of  the  legislature  of  the  State,  as  well  as 
of  an  order  made  by  the  Gas  Commission,  February  2.'3,  L906, 
to  take  effect  May  1,  1900,  relative  to  rates  for  gas  in  New  York 
City. 

Since  the  commencement  of  the  suil  the  ( ras  Commission  has 
been  abolished  and  the  Public  Service  Commission  has  been 
created  by  the  legislature  in  its  stead.  The  official  term  of 
Attorney  General  Meyer  has  also  expired,  and  Attorney  Gen- 
eral Jackson,  his  successor,  has  been  substituted  in  his  place. 

'.1ST 


APPENDIX   C 

The  ground  for  the  relief  asked  for  in  the  bill  was  the  alleged 
unconstitutionality  of  the  acts  and  the  order,  because  the  rates 
fixed  were  so  low  as  to  be  confiscatory.  Upon  filing  the  bill 
a  preliminary  injunction  was  granted  (146  Fed.  150),  and 
after  issue  was  joined  the  case  was  referred  to  one  of  the  stand- 
ing masters  of  the  court  to  take  testimony,  in  conformity  to 
the  practice  indicated  in  Railroad  v.  Tompkins,  176  U.  S.  167, 
179,  44  L.  ed.  417,  20  Sup.  Ct.  336. 

A  hearing  was  had  before  the  master,  who  reported  in  favor 
of  the  complainant.  The  case  then  came  before  the  Circuit 
Court,  and,  after  argument,  a  final  decree  was  entered,  restrain- 
ing defendants  from  enforcing  the  provisions  of  the  acts  and 
the  order  relating  to  rates  or  penalties.  157  Fed.  849.  These 
various  defendants,  except  the  District  Attorney,  have  taken 
separate  appeals  directly  to  this  court  from  the  decree  so 
entered.  The  acts  which  are  declared  void  as  unconstitutional 
are  chapter  736  of  the  Laws  of  1905,  which  limits  the  price  of 
gas  sold  to  the  city  of  New  York  to  a  sum  not  to  exceed  75  cents 
per  thousand  cubic  feet.  The  act  also  requires  that  the  gas 
sold  shall  have  a  specified  illuminating  power,  and  a  certain 
pressure  at  all  distances  from  the  place  of  manufacture.  Pen- 
alties are  attached  to  a  violation  of  the  act.  The  other  act  is 
chapter  125  of  the  Laws  of  1906,  limiting  the  prices  of  gas  in 
the  boroughs  of  Manhattan  and  the  Bronx,  to  other  consumers 
than  the  city  of  New  York,  to  80  cents  per  thousand  cubic 
feet,  with  like  penalties  as  in  the  act  of  1905,  and  with  the  same 
provisions  as  to  illuminating  power  and  the  pressure  in  the 
service  mains.  The  order  which  was  declared  invalid  was 
one  made  by  the  Gas  Commission  created  under  and  by  virtue 
of  chapter  737  of  the  Laws  of  1905,  the  order  providing  that 
the  price  of  gas  in  the  city  should  be  not  more  than  80  cents  to 
consumers  other  than  the  city  of  New  York.  The  order  had 
the  same  provisions  as  to  illuminating  power  and  pressure  as 
the  acts  above  mentioned.  The  master  and  the  court  below 
found  that  the  80  cent  rate  was  so  low  as  to  amount  to  con- 
fiscation, and  hence  the  acts  and  the  order  were  invalid  as  in 
violation  of  the  Federal  Constitution. 
988 


APPENDIX    C 

Mr.  Justice  Peckham,  after  making  the  foregoing  state- 
ment, delivered  the 

OPINION   OF   THE    COURT. 

."  At  the  outset  it  seems  to  us  proper  to  notice  the  views  re- 
garding the  action  of  the  court  below,  which  have  been  stated 
by  counsel  for  the  appellants,  the  Public  Service  Commission,  in 
their  brief  in  this  court.  They  assume  to  criticise  that  court 
for  taking  jurisdiction  of  this  case,  as  precipitate,  as  if  it  were 
a  question  of  discretion  or  comity,  whether  or  not  that  court 
should  have  heard  the  case.  On  the  contrary,  there  was  no 
discretion  or  comity  about  it.  When  a  Federal  court  is  prop- 
erly appealed  to  in  a  case  over  which  it  has  by  law  jurisdiction, 
it  is  its  duty  to  take  such  jurisdiction  [Cohens  v.  Virginia,  6 
Wheat.  (19  U.  S.)  264,  404,  5  L.  ed.  257],  and  in  taking  it  that 
court  cannot  be  truthfully  spoken  of  as  precipitate  in  its  con- 
duct. That  the  case  may  be  one  of  local  interest  only  is  entirely 
immaterial,  so  long  as  the  parties  are  citizens  of  different  Stales 
or  a  question  is  involved  which  by  law  brings  the  case  within 
the  jurisdiction  of  a  Federal  court.  The  right  of  a  party  plain- 
tiff to  choose  a  Federal  court  where  there  is  a  choice  cannot  be 
properly  denied.  In  re  Metropolitan  Railway  Receivership,  208 
U.  S.  90-110;  Prentis  v.  Atlantic  Coast  Line  et  al.,  211  U.  S.  210. 
In  the  latter  case  it  was  said  that  a  plaintiff  could  not  be  for- 
bidden to  try  the  facts  upon  which  his  right  to  relief  is  based 
before  a  court  of  his  own  choice,  if  otherwise  competent.  It  is 
true  an  application  for  an  injunction  was  denied  in  that  case  be- 
cause the  plaintiff  should  in  our  opinion  have  taken  the  appeal 
allowed  him  by  the  law  of  Virginia  while  the  rate  <>f  laic  in  litiga- 
tion was  still  at  the  legislative  stage,  so  as  to  make  it  absolutely 
certain  that  the  officials  of  the  State  would  try  to  establb  h  and 
enforce  an  unconstitutional  rule. 

"The  case  before  us  is  not  like  that.  It  involves  I  he  constitu- 
tionality, with  reference  to  the  federal  Constitution,  of  two 
acts  of  the  legislature  of  New  York,  and  it  is  one  over  which  the 
Circuit  Court  undoubtedly  had  jurisdiction   under  the  ad    of 

'•so 


APPENDIX    C 


Congress,  and  its  action  in  taking  and  hearing  the  case  cannot 
be  the  subject  of  proper  criticism. 

"An  examination  of  the  record  herein,  with  reference  to  the 
questions  involved  in  the  merits,  shows  that  the  act  under 
which  the  Gas  Commission  was  appointed  was  subsequently  to 
the  commencement  and  trial  of  this  suit,  declared,  on  grounds 
not  here  material,  to  be  unconstitutional  by  the  Court  of  Ap- 
peals of  New  York.  191  N.  Y.  123,  February  18,  1908.  The 
order  made  by  the  commission  must  therefore  be  regarded  as 
invalid.  It  is  not  important  in  this  case,  because  the  act  of 
the  legislature  of  1906,  makes  the  same  provision  as  to  the  price 
of  gas  to  consumers  other  than  the  city  that  the  order  does.  We 
have  as  remaining  to  be  considered  the  above-mentioned  two 
acts  of  the  legislature. 

"  The  question  arising  is  as  to  the  validity  of  the  acts  limiting 
the  rates  for  gas  to  the  prices  therein  stated.  The  rule  by  which 
to  determine  the  question  is  pretty  well  established  in  this 
court.  The  rates  must  be  plainly  unreasonable  to  the  extent 
that  their  enforcement  would  be  equivalent  to  the  taking  of 
property  for  public  use  without  such  compensation  as  under  the 
circumstances  is  just  both  to  the  owner  and  the  public.  There 
must  be  a  fair  return  upon  the  reasonable  value  of  the  prop- 
erty at  the  time  it  is  being  used  for  the  public.  San  Diego  Land 
&  Town  Company  v.  National  City,  174  U.  S.  739,  767,  43  L.  ed. 
1154,  19  Sup.  Ct.  804;  Same  plaintiff  v.  Jasper,  189  U.  S.  439, 
442,  47  L.  ed.  892,  23  Sup.  Ct.  892. 

"  Many  of  the  cases  are  cited  in  Knoxville  v.  Knoxville  Water 
Co.,  just  decided.  The  case  must  be  a  clear  one  before  the  court 
ought  to  be  asked  to  interfere  with  state  legislation  upon  the 
subject  of  rates,  especially  before  there  has  been  any  actual  ex- 
perience of  the  practical  result  of  such  rates.  In  this  case  the 
rates  have  not  been  enforced  as  yet,  because  the  bill  herein  was 
filed  and  an  injunction  obtained  restraining  their  enforcement 
before  they  came  into  actual  operation. 

"  In  order  to  determine  the  rate  of  return  upon  the  reasonable 
value  of  the  property  at  the  time  it  is  being  used  for  the  public 
it,  of  course,  becomes  necessary  to  ascertain  what  that  value  is. 
990 


APPENDIX  C 

A  very  great  amount  of  evidence  was  taken  before  the  master 
upon  that  subject,  which  is  included  in  five  large  volumes  of 
the  record.  Valuations  by  expert  witnesses  were  given  as  to 
the  value  of  the  real  estate  owned  by  the  complainant,  and  as 
to  the  value  of  the  mains,  service  pipes,  plants,  meters  and 
miscellaneous  personal  property. 

"  The  value  of  real  estate  and  plant  is  to  a  considerable  extent 
matter  of  opinion,  and  the  same  may  be  said  of  personal  estate 
when  not  based  upon  the  actual  cost  of  material  and  construc- 
tion. Deterioration  of  the  value  of  the  plant,  mains  and  pipes 
is  also  to  some  extent  based  upon  opinion.  All  these  matters 
make  questions  of  value  somewhat  uncertain;  while  added  to 
this  is  an  alleged  prospective  loss  of  income  from  a  reduced 
rate,  a  matter  also  of  much  uncertainty,  depending  upon  the 
extent  of  the  reduction  and  the  probable  increased  consump- 
tion, and  we  have  a  problem  as  to  the  character  of  a  rate  which 
is  difficult  to  answer  without  a  practical  test  from  actual  op- 
eration of  the  rate.  Of  course,  there  may  be  cases  where  the 
rate  is  so  low,  upon  any  reasonable  basis  of  valuation,  that 
there  can  be  no  just  doubt  as  to  its  confiscatory  nature,  and  in 
that  event  there  should  be  no  hesitation  in  so  deciding  and  in 
enjoining  its  enforcement  without  waiting  for  the  damage 
which  must  inevitably  accompany  the  operation  of  the  busi- 
ness under  the  objectionable  rate.  But  where  the  rate  com- 
plained of  shows  in  any  event  a  very  narrow  line  of  division 
between  possible  confiscation  and  proper  regulation,  as  based 
upon  the  value  of  the  property  found  by  the  court  below,  and 
the  division  depends  upon  opinions  as  to  value,  which  differ 
considerably  among  the  witnesses,  and  also  upon  the  results  in 
the  future  of  operating  under  the  rate  objected  to,  so  that  the 
material  fact  of  value  is  left  in  much  doubt,  a  court  of  equity 
ought  not  to  interfere  by  injunction  before  a  fair  trial  has  been 
made  of  continuing  the  business  under  thai  rule,  and  thus 
eliminating,  as  far  as  is  possible,  the  doubt  arising  from  opin- 
ions as  opposed  to  facts. 

"A  short  history  of  the  complainant,  as  to  its  incorporation 
and  its  capital,  and  the  method  by  which  the  value  of  its  fran 

991 


APPENDIX   C 

chises  was  arrived  at,  will  render  the  further  examination  of 
the  case  more  intelligible. 

"  Prior  to  1884  there  were  seven  gaslight  companies  in  New 
York  City,  each  operated  under  separate  charters,  granted  at 
different  times  between  the  years  1823  and  1865  or  1871.  They 
each  had  the  right  to  use  the  streets  of  certain  portions  of  the 
city  for  the  purpose  of  laying  their  mains  and  service  pipes  in 
order  to  furnish  gas  to  the  city  and  the  citizens.  Not  one  of 
the  companies  had  ever  been  called  upon  to  pay  a  penny  for 
such  right,  but  the  grant  to  each  was  in  that  aspect  a  gratuity. 
It  was  not,  at  the  time  of  granting  franchises  such  as  these,  the 
custom  to  pay  for  them. 

"  In  1884,  by  chapter  367  of  the  laws  of  that  year,  authority 
to  consolidate  manufacturing  corporations  was  granted  upon 
conditions  mentioned  in  the  act.  The  directors  of  the  corpo- 
rations proposing  to  consolidate  were  to  make  an  agreement 
for  consolidation,  embracing,  among  other  things,  the  amount 
of  capital  and  the  number  of  shares  of  stock  into  which  it 
should  be  divided,  the  capital  not  to  be  in  amount  more  '  than 
the  fair  aggregate  value  of  the  property,  franchises  and  rights 
of  the  several  companies  to  be  consolidated.'  The  agreement 
was  not  to  be  valid  until  submitted  to  the  stockholders  of  each 
of  the  companies  and  approved  by  two-thirds  of  each.  The 
constituent  companies,  which  were  afterwards  consolidated  un- 
der their  agreement,  and  pursuant  to  the  act  mentioned,  were 
six  in  number,  the  seventh,  the  Mutual  Company,  withdrawing. 
The  companies  agreed  upon  the  valuation  of  their  property, 
which  was  to  be  paid  for  in  the  stock  of  the  consolidated  com- 
pany, and  the  original  stock  held  by  the  stockholders  of  each 
company  was  surrendered  to  the  consolidated  company.  The 
value  of  the  franchises  of  all  the  companies  was  set  at  the 
figure  of  .$7,781,000.  The  court  below  said  that  the  master  re- 
ported there  was  little  direct  evidence  before  him  as  to  the 
value  of  the  franchises,  to  which  the  court  added  that  if  the 
master,  by  direct  evidence,  meant  testimony  of  the  same  kind 
regarding  their  value  as  had  been  offered  regarding  every  item 
of  tangible  property,  there  was  none  at  all. 
992 


APPENDIX   C 

"  The  court  further  stated  'that  it  does  not  appear  in  the  evi- 
dence how  the  valuation  of  the  franchises  was  measured,  or 
why  the  figures  selected  were  chosen,  but  that  it  was  true  that 
when  complainant  was  organized,  in  1884,  under  the  consolida- 
tion statute,  which  in  terms  permitted  it  to  acquire  the  prop- 
erty and  franchises  of  the  other  companies,  it  issued  stock  of 
the  par  value  of  $7, 781,000,  representing  the  franchises  it  then 
acquired  and  nothing  else,  and  that  the  stock  was  held  by  pur- 
chasers, who,  I  am  compelled  to  think,  had  a  right  to  rely  upon 
legal  protection  for  legally  issued  stock.'  It  is  not,  of  course, 
contended  there  was  special  stock  issued  for  this  particular  item, 
but  it  was  included  in  the  total  sum  for  which  the  consolidated 
company  issued  its  stock  and  upon  its  receipt  the  stockholders 
in  the  various  companies  surrendered  their  stock  in  those  com- 
panies. The  result  was  that  the  amount  of  the  stock  issued  by 
the  consolidated  company  was  increased  by  $7,781,000,  rep- 
resenting a  value  of  franchises  which  was  agreed  upon  by  the 
stockholders  in  the  companies,  and  which  had  never  cost  any 
of  them  a  single  penny. 

"  It  cannot  be  disputed  that  franchises  of  this  nature  are 
property  and  cannot  be  taken  or  used  by  others  without  com- 
pensation. Monongahela  Nav.  Co.  v.  United  States,  148  U.  S. 
312,  37  L.  ed.  463, 13  Sup.  Ct.  622;  People  v.  O'Brien,  111  N.  Y. 
1,  19  N.  Y.  St.  Rep.  173, 18  N.  E.  692,  and  cases  cited.  The  im- 
portant question  is  always  one  of  value.  Taking  their  value  in 
this  case  as  arrived  at  by  agreement  of  their  owners,  at  the  time 
of  the  consolidation,  that  value  has  been  increased  by  the  finding 
of  the  court  below  to  the  sum  of  $12,000,000  at  the  time  of  the 
commencement  of  this  suit,  The  trial  court  said :  "  If,  however, 
complainant's  franchises  were  worth  $7,781,000  in  1884,  and 
its  tangible  property,  at  the  same  time,  was  appraised  (as  ap- 
pears in  evidence),  at  $30,000,000  (in  round  figures),  then  since 
complainant's  business  (in  sales  volume)  has,  in  twenty-three 
years,  almost  quadrupled,  and  its  tangible  assets  grown  to 
$47,000,000,  it  appears  to  me  that  a  fair  met  hod  of  fixing  value 
of  the  franchises  in  1905  is  to  assume  the  same  growth  in  value 
for  the  franchises  as  is  demonstrated  by  the  evidence  in  the 
63  993 


APPENDIX    C 

case  of  tangible  property.  If,  therefore,  the  franchise  valua- 
tion of  1884  was  proportioned  to  personalty  and  realty  of 
$30,000,000,  a  franchise  valuation  proportioned  to  $47,000,000 
in  1905  would  be  over  $12,000,000.  This,  I  think,  a  logical  re- 
sult from  the  assumption  I  am  compelled  to  start  with,  i.  e., 
that  franchises  have  a  separate  and  independent  value.  But 
there  is,  however,  no  method  of  valuing  franchises,  except  by 
a  consideration  of  earnings;  earnings  must  be  proportioned  to 
assets;  and  both  kinds  of  assets,  tangible  and  intangible,  must 
stand  upon  the  same  plane  of  valuation;  having,  therefore,  a 
measure  of  growth  of  tangible  assets  from  1884  to  1905,  the 
franchise  assets  must  be  assumed  to  have  grown  in  the  same 
proportion.  I  find  that  the  value  of  complainants'  franchises 
at  the  date  of  inquiry  was  not  less  than  $12,000,000,  making  a 
total  valuation  of  $59,000,000,  upon  which  the  probable  return 
is  $3,030,000,  or  very  considerably  less  than  6  per  cent.'  The 
judge  stated  his  own  views  as  opposed  to  including  these  fran- 
chises in  the  property  upon  the  value  of  which  a  return  is 
to  be  calculated  in  fixing  the  amount  of  rates,  but  held  that 
he  was  bound  by  decided  cases  to  hold  against  his  personal 
views. 

"  We  are  not  prepared  to  hold  with  the  court  below  as  to  the 
increased  value  which  it  attributes  to  the  franchises.  It  is  not 
only  too  much  a  matter  of  pure  speculation,  but  we  think  it  is 
also  opposed  to  the  principle  upon  which  such  valuation  should 
be  made.  This  corporation  is  one  of  that  class  which  is  subject 
to  regulation  by  the  legislature  in  the  matter  of  rates,  provided 
they  are  not  made  so  low  as  to  be  confiscatory.  The  franchises 
granted  the  various  companies  and  held  by  complainant  con- 
sisted in  the  right  to  open  the  streets  of  the  city  and  lay  down 
mains  and  use  them  to  supply  gas,  subject  to  the  legislative 
right  to  so  regulate  the  price  for  the  gas  as  to  permit  not  more 
than  a  fair  return  (regard  being  had  to  the  risk  of  the  business) 
upon  the  reasonable  value  of  the  property  at  the  time  it  is 
being  used  for  the  public. 

"  The  evidence  shows  that  from  their  creation,  down  to  the 
consolidation  in  1884,  these  companies  had  been  free  from  leg- 
994 


APPENDIX    C 

islative  regulation  upon  the  amount  of  the  rates  to  be  charged 
for  gas.  They  had  been  most  prosperous  and  had  divided  very 
large  earnings  in  the  shape  of  dividends  to  their  stockholders, 
dividends  which  are  characterized  by  the  Senate  committee, 
appointed  in  1885  to  investigate  the  facts  surrounding  the  con- 
solidation, as  enormous.  The  report  of  that  committee  shows 
that  several  of  the  companies  had  averaged,  from  their  crea- 
tion, dividends  over  sixteen  per  cent,  and  the  six  companies  in 
the  year  1884  paid  a  dividend  upon  capital  which  had  been 
increased  by  earnings,  as  in  the  case  of  the  Manhattan  and  the 
New  York,  of  eighteen  per  cent,  and,  had  it  been  upon  the 
money  actually  paid  in,  it  would  have  been  nearly  twenty- 
five  per  cent. 

"  The  committee  also  said  in  the  same  report  that  these  '  fran- 
chises were  in  force  November  10,  1884,  the  time  of  the  con- 
solidation, and  the  money  invested  in  them  was  earning  the 
same  enormous  dividends.  So  far  as  the  evidence  shows,  there 
was  nothing  in  the  condition  of  affairs  on  the  10th  of  Novem- 
ber to  indicate  that  these  franchises  would  not  be  as  valuable 
for  the  next  twenty  years  as  they  had  been  in  the  past.  There 
were  gas  companies  enough  in  the  city  with  a  capacity  capable 
of  supplying  the  demands  for  the  next  twenty  years.  A  law 
was  on  our  statute  books  that  virtually  prohibited  the  laying 
of  any  more  gas  pipes  in  the  streets.  The  gas  companies  had 
an  agreement  among  themselves,  fixing  the  price  of  gas  at  a 
figure  that  paid  these  dividends.  The  people  were  paying  this 
price,  as  they  had  in  the  past,  without  objection  or  protest. 
This  price  may  have  been  too  high,  and  the  dividends  were 
excessive,  but  they  were  not  illegal,  and  the  valuation  of  the 
franchises  computed  upon  these  dividends,  and  thai  stair  of 
facts  cannot  be  called  a  violation  of  a  law  that  expressly  au- 
thorized it  to  be  done,  unless  such  valuation  was  too  high.' 

"The  committee,  upon  these  facts,  were  of  opinion  that  the 
valuation  of  $7,781,000  for  the  franchises  was  not  more  than 
their  fair  aggregate  value. 

"Assuming,  as  the  committee  did,  that  the  company  would 
be  permitted  to  charge  the  same  pine,  m  the  future  which  in 

995 


APPENDIX   C 

the  past  had  resulted  in  these  'enormous'  or  'excessive'  divi- 
dends, it  need  not  be  matter  of  surprise  that  a  franchise  by 
means  of  which  such  dividends  had  been  possible  was  not  re- 
garded as  overvalued  at  the  sum  stated  in  1884. 

"  We  think  that  under  the  above  facts  the  courts  ought  to  ac- 
cept the  valuation  of  the  franchises  fixed  and  agreed  upon  un- 
der the  act  of  1884  as  conclusive  at  that  time.  The  valuation 
was  provided  for  in  the  act,  which  was  followed  by  the  com- 
panies, and  the  agreement  regarding  it  has  been  always  recog- 
nized as  valid,  and  the  stock  has  been  largely  dealt  in  for  more 
than  twenty  years  past  on  the  basis  of  the  validity  of  the  val- 
uation and  of  the  stock  issued  by  the  company. 

"  But  although  the  State  ought,  for  these  reasons,  to  be  bound 
to  recognize  the  value  agreed  upon  in  1884  as  part  of  the  prop- 
erty upon  which  a  reasonable  return  can  be  demanded,  we  do 
not  think  an  increase  in  that  valuation  ought  to  be  allowed 
upon  the  theory  suggested  by  the  court  below.  Because  the 
amount  of  gas  supplied  has  increased  to  the  extent  stated,  and 
the  other  and  tangible  property  of  the  corporations  has  in- 
creased so  largely  in  value,  is  not,  as  it  seems  to  us,  any  reason 
for  attributing  a  like  proportional  increase  in  the  value  of  the 
franchise.  Real  estate  may  have  increased  in  value  very 
largely,  as  also  the  personal  property,  without  any  necessary 
increase  in  the  value  of  the  franchise.  Its  past  value  was 
founded  upon  the  opportunity  of  obtaining  these  enormous 
and  excessive  returns  upon  the  property  of  the  company,  with- 
out legislative  interference  with  the  price  for  the  supply  of  gas, 
but  that  immunity  for  the  future  was,  of  course,  uncertain,  and 
the  moment  it  ceased  and  the  legislature  reduced  the  earnings 
to  a  reasonable  sum  the  great  value  of  the  franchise  would  be 
at  once  and  unfavorably  affected,  but  how  much  so  it  is  not 
possible  for  us  now  to  see.  The  value  would  most  certainly  not 
increase.  The  question  of  the  regulation  of  rates  did  from 
time  to  time  thereafter  arise  in  the  legislature,  and  finally 
culminated  in  these  acts  which  were  in  existence  when  the 
court  below  found  this  increased  value  of  the  franchises.  We 
cannot,  in  any  view  of  the  case,  concur  in  that  finding. 
996 


APPENDIX   C 

"This  increase  in  value  did,  however,  form  part  of  the  sum 
upon  which  the  court  below  held  the  complainant  was  entitled 
to  a  return.  That  court  found  the  value  of  the  tangible  assets 
actually  employed  at  the  time  of  the  commencement  of  this 
suit  in  the  business  of  supplying  gas  by  the  complainant  to  be 
$47,831,435,  to  which  it  added  the  $12,000,000  as  the  value 
of  the  franchises  as  found  by  it,  making  the  total  of  $59,831,435, 
upon  which  it  held  that  the  company  was  entitled  to  a  return 
of  6  per  cent,  being  $3,589,886.10.  It  also  found  its  total  net 
income  for  the  year  1905  amounted  to  $5,881,192.45,  almost  10 
per  cent  upon  the  sum  above  named.  Altering  the  finding  of 
the  court  so  far  only  as  to  place. the  value  of  the  franchises  at 
the  time  agreed  upon  in  1884,  $7,781,000,  the  total  value  upon 
that  basis  of  the  property  employed  by  the  company  would  be 
$55,612,435,  upon  which  6  per  cent  would  be  $3,336,746.10, 
while  the  sum,  estimated  as  the  return  on  80  cent  gas  would 
have  been  $3,024,592.14,  which  is  nearly  5£  per  cent  on  the 
above  total  of  $55,612,435. 

"  What  has  been  said  herein  regarding  the  value  of  the  fran- 
chises in  this  case  has  been  necessarily  founded  upon  its  own 
peculiar  facts,  and  the  decision  thereon  can  form  no  precedent 
in  regard  to  the  valuation  of  franchises  generally,  where  the 
facts  are  not  similar  to  those  in  the  case  before  us.  We  simply 
accept  the  sum  named  as  the  value  under  the  circumstances 
stated. 

"  There  is  no  particular  rate  of  compensation  which  must  in 
all  cases  and  in  all  parts  of  the  country  be  regarded  as  sufficient 
for  capital  invested  in  business  enter) irises.  Such  compensa- 
tion must  depend  greatly  upon  circumstances  and  Locality; 
among  other  things,  the  amount  of  risk  in  the  business  is  a 
most  important  factor,  as  well  as  the  locality  where  the  business 
is  conducted  and  the  rate  expected  and  usually  realized  there 
Upon  investments  of  a  somewhat  similar  nature  with  regard  to 
the  risk  attending  them.  There  may  be  other  matters  which 
in  some  eases  might  also  be  properly  taken  into  accounl  in 
determining  the  rate  which  an  investor  mighl  properly  expert 
or  hope  to  receive  and  which  he  would  be  entitled  to  without 

997 


APPENDIX  C 

legislative  interference.  The  less  risk,  the  less  right  to  any 
unusual  returns  upon  the  investments.  One  who  invests  his 
money  in  a  business  of  a  somewhat  hazardous  character  is  very 
properly  held  to  have  the  right  to  a  larger  return  without  leg- 
islative interference,  than  can  be  obtained  from  an  investment 
in  Government  bonds  or  other  perfectly  safe  security.  The 
man  that  invested  in  gas  stock  in  1823  had  a  right  to  look  for 
and  obtain,  if  possible,  a  much  greater  rate  upon  his  invest- 
ment than  he  who  invested  in  such  property  in  the  city  of 
New  York  years  after  the  risk  and  danger  involved  had  been 
almost  entirely  eliminated. 

"  In  an  investment  in  a  gas  company,  such  as  complainants', 
the  risk  is  reduced  almost  to  a  minimum.  It  is  a  corporation, 
which  in  fact,  as  the  court  below  remarks,  monopolizes  the  gas 
service  of  the  largest  city  in  America,  and  is  secure  against 
competition  under  the  circumstances  in  which  it  is  placed, 
because  it  is  a  proposition  almost  unthinkable  that  the  city  of 
New  York  would,  for  purposes  of  making  competition,  permit 
the  streets  of  the  city  to  be  again  torn  up  in  order  to  allow  the 
mains  of  another  company  to  be  laid  all  through  them  to  supply 
gas  which  the  present  company  can  adequately  supply.  And, 
so  far  as  it  is  given  us  to  look  into  the  future,  it  seems  as  cer- 
tain as  anything  of  such  a  nature  can  be,  that  the  demand  for 
gas  will  increase,  and,  at  the  reduced  price,  increase  to  a  con- 
siderable extent.  An  interest  in  such  a  business  is  as  near  a 
safe  and  secure  investment  as  can  be  imagined  with  regard  to 
any  private  manufacturing  business,  although  it  is  recognized 
at  the  same  time  that  there  is  a  possible  element  of  risk,  even 
in  such  a  business.  The  court  below  regarded  it  as  the  most 
favorably  situated  gas  business  in  America,  and  added  that 
all  gas  business  is  inherently  subject  to  many  of  the  vicissitudes 
of  manufacturing.  Under  the  circumstances,  the  court  held 
that  a  rate  which  would  permit  a  return  of  six  per  cent  would 
be  enough  to  avoid  the  charge  of  confiscation,  and  for  the  reason 
that  a  return  of  such  an  amount  was  the  return  ordinarily 
sought  and  obtained  on  investments  of  that  degree  of  safety 
in  the  city  of  New  York. 
998 


APPENDIX   C 

"  Taking  all  facts  into  consideration,  we  concur  with  the  court 
below  on  this  question,  and  think  complainant  is  entitled  to  six 
per  cent  on  the  fair  value  of  its  property  devoted  to  the  public 
use.  But  assuming  that  the  company  is  entitled  to  six  per  cent 
upon  the  value  of  its  property  actually  used  for  the  public,  the 
total  value  fixed  by  the  court  below  is,  as  we  have  seen,  much 
too  large.  We  must  first  strike  out  the  increased  value  of  the 
franchises  asserted  by  the  court  over  the  amount  agreed  upon 
in  1884,  when  the  company  was  consolidated.  *We  also  find 
that  the  total  value  of  the  tangible  property  is  made  up  of 
several  items,  two  of  which  are — 

Real  estate $11,985,435 

Plants 15,000,000 

"  Both  depend  largely  upon  the  opinions  of  expert  witnesses  as 
to  the  value  of  that  kind  of  property.  Where  a  large  amount 
of  the  total  value  of  a  mass  of  different  properties  consists  in 
the  value  of  real  estate,  which  is  only  ascertained  by  the  vary- 
ing opinions  of  expert  witnesses,  and  where  the  opinions  of 
the  plaintiffs'  witnesses  differ  quite  radically  from  those  of 
the  defendants',  it  is  apparent  that  the  total  value  must  nec- 
essarily be  more  or  less  in  doubt.  It,  in  other  words,  becomes 
matter  of  speculation  or  conjecture  to  a  great  extent.  It  may 
be,  as  already  suggested,  that  in  many  cases  the  rates  objected 
to  might  be  so  low  that  there  could  be  no  reasonable  doubt  of 
their  inadequacy  upon  any  fair  estimate  of  the  value  of  the 
property.  In  such  event  the  enforcement  of  the  rates  should 
be  enjoined  even  in  a  case  where  the  value  of  the  property  de- 
pends upon  the  value  to  be  assigned  to  real  estate  by  the  evi- 
dence of  experts.  But  there  may  be  other  cases  where  the 
evidence  as  to  the  probable  result  of  the  rates  in  controversy 
would  show  they  were  so  nearly  adequate  that  nothing  but  a 
practical  test  could  satisfy  the  doubt  as  to  their  sufficiency. 

"In  this  case  a  slight  reduction  in  the' estimated  value  of  the 
real  estate,  plants  and  mains,  as  given  by  the  witnesses  for 
complainant,  would  give  a  six  per  cenl  return  upon  the  total 
value  of  the  property  as  above  stated.  And  again  increased 
consumption  at  the  lower  rate  might  result   in  increased  earn- 

999 


APPENDIX   C 

ings,  as  the  cost  of  furnishing  the  gas  would  not  increase  in 
proportion  to  the  increased  amount  of  gas  furnished. 

"  The  elevated  railroads  in  New  York  when  first  built  charged 
ten  cents  for  each  passenger,  but  when  the  rate  was  reduced  to 
five  cents  it  is  common  knowledge  that  their  receipts  were  not 
cut  in  two,  but  that  from  increased  patronage  the  earnings  in- 
creased from  year  to  year,  and  soon  surpassed  the  highest  sum 
ever  received  upon  the  ten  cent  rate. 

"  Of  course,  there  is  always  a  point  below  which  a  rate  could 
not  be  reduced  and  at  the  same  time  permit  the  proper  return 
on  the  value  of  the  property,  but  it  is  equally  true  that  a  re- 
duction in  rates  will  not  always  reduce  the  net  earnings,  but 
on  the  contrary  may  increase  them.  The  question  of  how 
much  an  increased  consumption  under  a  less  rate  will  increase 
the  earnings  of  complainant,  if  at  all,  at  a  cost  not  proportioned 
to  the  former  cost,  can  be  answered  only  by  a  practical  test. 
In  such  a  case  as  this,  where  the  other  data  upon  which  the 
computation  of  the  rate  of  return  must  be  based,  are  from  the 
evidence  so  uncertain,  and  where  the  margin  between  possible 
confiscation  and  valid  regulation  is  so  narrow  we  cannot  say 
there  is  no  fair  or  just  doubt  about  the  truth  of  the  allegation 
that  the  rates  are  insufficient. 

"  The  complainant  also  contends  that  the  State  having  taxed 
it  upon  its  franchises  cannot  be  heard  to  deny  their  existence 
or  their  value  as  taxed. 

"  The  fact  that  the  State  has  taxed  the  company  upon  its 
franchises  at  a  greater  value  than  is  awarded  them  here,  is  not 
material.  Those  taxes,  even  if  founded  upon  an  erroneous 
valuation,  were  properly  treated  by  the  company  as  part  of 
its  operating  expenses,  to  be  paid  out  of  its  earnings  before 
the  net  amount  could  be  arrived  at  applicable  to  dividends, 
and  if  such  latter  sums  were  not  sufficient  to  permit  the  proper 
return  on  the  property  used  by  the  company  for  the  public, 
then  the  rate  would  be  inadequate.  The  future  assessment  of 
the  value  of  the  franchises,  it  is  presumed,  will  be  much  lessened 
if  it  is  seen  that  the  great  profits  upon  which  that  value  was 
based  are  largely  reduced  by  legislative  action.  In  that  way 
1000 


APPENDIX   C 

the  consumer  will  be  benefited  by  paying  a  reduced  sum 
(although  indirectly)  for  taxes. 

"  We  are  also  of  opinion  that  it  is  not  a  case  for  a  valuation  of 
'good  will.'  The  master  combined  the  franchise  value  with 
that  of  good  will,  and  estimated  the  total  value  at  $20,000,000. 

"The  complainant  has  a  monoply  in  fact,  and  a  consumer 
must  take  gas  from  it  or  go  without.  He  will  resort  to  the  '  old 
stand,'  because  he  cannot  get  gas  anywhere  else.  The  court 
below  excluded  that  item,  and  we  concur  in  that  action. 

"And  we  concur  with  the  court  below  in  holding  that  the 
value  of  the  property  is  to  be  determined  as  of  the  time  when 
the  inquiry  is  made  regarding  the  rates.  If  the  property,  which 
legally  enters  into  the  consideration  of  the  question  of  rates, 
has  increased  in  value  since  it  was  acquired,  the  company  is 
entitled  to  the  benefit  of  such  increase.  This  is,  at  any  rate, 
the  general  rule.  We  do  not  say  there  may  not  possibly  be  an 
exception  to  it,  where  the  property  may  have  increased  so  enor- 
mously in  value  as  to  render  a  rate  permitting  a  reasonable  re- 
turn upon  such  increased  value  unjust  to  the  public.  How  such 
facts  should  be  treated  is  not  a  question  now  before  us,  as  this 
case  does  not  present  it.  We  refer  to  the  matter  only  for  the 
purpose  of  stating  that  the  decision  herein  docs  not  prevent  an 
inquiry  into  the  question  when,  if  ever,  it  should  be  necessarily 
presented. 

"The  matter  of  the  increased  cost  of  the  gas,  resulting  from 
the  provisions  of  the  acts,  as  to  making  the  gas  equal  to  22 
candle  power,  is  also  alleged  as  a  reason  for  inadequacy  of  rate 

"  It  appears  that  the  average  candle  power  actually  produced 
in  the  first  six  months  of  the  year  1905  was  22,  while  but  20 
candle  power  was  exacted  by  law,  and  for  the  last  six  months 
of  that  year,  while  22  candle  power  was  exacted,  the  average 
amount  was  24.19.  This  expense  was  included  in  the  operat- 
ing expense  of  that  year,  which  resulted  in  the  net  earnings 
above  mentioned,  while  the  company  was  complying  with  the 
requirements  of  the  act  in  this  particular. 

"  It  is  unnecessary,  therefore,  to  further  inquire  as  to  the  ad- 
ditional expense  caused  by  this  requirement, 

1001 


APPENDIX   C 

"Again,  it  has  been  asserted  that  the  laws  are  unconstitu- 
tional, because  of  the  provision  as  to  pressure,  and  also  by 
reason  of  the  penalties  which  a  violation  of  the  acts  may  ren-  , 
der  a  corporation  liable  to. 

"  The  acts  provide  that  the  pressure  of  the  gas  in  the  service 
mains  at  any  distance  from  the  place  of  manufacture  shall  not 
be  less  than  one  inch  nor  more  than  two  and  a  half  inches. 

"The  evidence  shows  that  to  put  a  pressure  such  as  is  de- 
manded by  the  acts  upon  the  mains  and  other  service  pipes  in 
their  present  condition  would  be  to  run  a  great  risk  of  ex- 
plosion, and  consequent  disaster.  Before  compliance  with  this 
provision  would  be  safe  the  mains  and  other  pipes  would  have 
to  be  strengthened  throughout  their  whole  extent,  and  at  an 
expenditure  of  many  millions  of  dollars,  from  which  no  return 
could  be  obtained  at  the  rates  provided  in  the  acts.  This 
would  take  from  the  complainant  the  ability  to  secure  the 
return  to  which  it  is  entitled  upon  its  property,  used  for  sup- 
plying gas,  and  the  provision  as  to  the  amount  of  pressure  is 
therefore  void.  This  particular  duty  imposed  by  the  acts  is, 
however,  clearly  separable  from  the  enactments  as  to  rates,  and 
we  have  no  doubt  that  the  remainder  of  the  statute  would  have 
been  enacted,  even  with  that  provision  omitted. 

"  The  obligation  would  remain  upon  the  company  to  have  a 
pressure  sufficient  to  insure  a  light  of  22  candle  power,  as  pro- 
vided in  the  acts. 

"  We  are  of  the  same  opinion  as  to  the  penalties  provided  for 
a  violation  of  the  acts.  They  are  not  a  necessary  or  inseparable 
part  of  the  acts,  without  which  they  would  not  have  been 
passed.  If  these  provisions  as  to  penalties  have  been  properly 
construed  by  the  court  below,  they  are  undoubtedly  void, 
within  the  principle  decided  in  Ex  parte  Young,  209  U.  S.  123, 
and  the  cases  there  cited,  because  so  enormous  and  overwhelm- 
ing in  their  amount. 

"  When  the  objectionable  part  of  a  statute  is  eliminated,  if 

the  balance  is  valid  and  capable  of  being  carried  out,  and  if  the 

court  can  conclude  it  would  have  been  enacted  if  that  portion 

which  is  illegal  had  been  omitted,  the  remainder  of  the  stat- 

1002 


APPENDIX   C 

ute  thus  treated  is  good.  Reagan  v.  Trust  Co.,  154  U.  S.  362, 
395,  38  L.  ed.  1014,  14  Sup.  Ct.  1047;  Berea  College  v.  Com- 
monwealth of  Kentucky,  211  U.  S.  45-54. 

"  This  is  a  familiar  principle. 

"  Lastly,  it  is  objected  that  there  is  an  illegal  discrimination 
as  between  the  city  and  the  consumers  individually.  We  see  no 
discrimination  which  is  illegal  or  for  which  good  reasons  could 
not  be  given.  But  neither  the  city  nor  the  consumers  are  find- 
ing any  fault  with  it,  and  the  only  interest  of  the  complainant 
in  the  question  is  to  find  out  whether,  by  the  reduced  price  to 
the  city,  the  complainant  is  upon  the  whole  unable  to  realize 
a  return  sufficient  to  comply  with  what  it  has  the  right  to  de- 
mand. What  we  have  already  said  applies  to  the  facts  now  in 
question. 

"  We  cannot  see  from  the  whole  evidence  that  the  price  fixed 
for  gas  supplied  to  the  city  by  the  wholesale,  so  to  speak,  would 
so  reduce  the  profits  from  the  total  of  the  gas  supplied  as  to 
thereby  render  such  total  profits  insufficient  as  a  return  upon 
the  property  used  by  the  complainant.  So  long  as  the  total  is 
enough  to  furnish  such  return  it  is  not  important  that  with  re- 
lation to  some  customers  the  price  is  not  enough.  Minneapolis 
&c.  v.  Minnesota,  186  U.  S.  257,  46  L.  ed.  1151,  22  Sup.  Ct. 
900;  Atlantic  Coast  Line  v.  North  Carolina  Commission,  206 
U.  S.  1,  51  L.  ed.  933,  27  Sup.  Ct.  585. 

"  Upon  a  careful  consideration  of  the  case  before  us  we  are  of 
opinion  that  the  complainant  has  failed  to  sustain  the  burden 
cast  upon  it  of  showing  beyond  any  just  or  fair  doubt  that  the 
acts  of  the  legislature  of  the  State  of  New  York  are  in  fact  con- 
fiscatory. 

"  It  may  possibly  bo,  however,  that  a  practical  experience  of 
the  effect  of  the  acts  by  actual  operation  under  them  might 
prevent  the  complainant  from  obtaining  a  fair  return,  as  already 
described,  and  in  thai  evenl  complainanl  oughl  to  have  the 
opportunity  of  again  presenting  its  ease  to  the  court.  To  thai 
end  we  reverse  the  decree,  with  directions  to  dismiss  the  bill 

without  prejudice,  and 

"  //  is  so  ordered.'1 

1003 


INDEX. 


INDEX. 

A. 

ABANDONMENT, 

corporations  cannot  arbitrarily  discontinue  operations.  ..  .note,     §63 

ABATEMENT, 

of  bridge;  power  of  Congress  to  declare  it  a  lawful  structure §  128 

ABUTTING  OWNER, 

consent  of  to  use  of  streets  by  street  railway  when  necessary, 

creates  property  rights §  33 

judgment   for  damages  caused  by  railroad  construction;   equal 

protection  of  law §  300 

See  Consent. 
ACCEPTANCE, 

of  grant;  obligation  of  contract §  313 

of  charter  necessary §§  348-350 

See  Conditions;  Grants. 

ACCIDENTS,  investigation  of.     See  Public  Service  Commissions  Law. 

ACCOUNTING.     See  Public  Utility  Law. 

ACCOUNTS.     See  Public  Service  Commissions  Law. 

ACTIONS, 

at  law  not  maintainable  to  recover  franchise §  26 

power  to  sue  under  New  York  constitution  includes  only  actions 

as  to  corporate  rights note     §  52 

no  private  action  lies  lor  negligence  of  public  governmental  offi- 
cers       §  56 

right  of  corporation  created  by  rebel  State  to  sue     §  142 

by  taxpayer  to  restrain  village  from  constructing  li^iitm^  system  §  160 

for  penalties;  railroad  commission's  powers 5  167 

creditor's  bill;  privileges  and  immunities  of  citizens  in  the  several 

States ! 

right  to    ue  or  defend;  privilege*  or  immunities  of  citizens  in  the 

several  States }  293 

for  wrongful  death  of  citizen  of  m  State,  occurring  in  another 
State;  privileges  and  immunities  of  citizens  in  the  several  States  $  293 

non-resi<lent's  right  of,  not  guaranteed  by  provisions  as  to  im- 
munity and  privileges  in  Federal  Constitution  §  293 

1007 


1008  INDEX 

ACTIONS— Continued : 

between  foreign  corporations  prohibited;  privileges  and  immu- 
nities of  citizens §  293 

foreign  corporation  prohibited  from  suing  on  claim  to  assignee; 

obligation  of  contract §  306 

condition  that  foreign  corporations  shall  not  remove  suit  into 

Federal  courts §  355 

See  Equity;  Injunctions;    Parties;    Public   Service  Commissions 
Law;  Public  Utility  Law;  Remedies. 

ADDITIONAL  FRANCHISE  TAX §  427 

ADMINISTRATIVE  POWERS  or  functions.     See  Powers. 

AGENCIES, 

of  Federal  government;  Federal  franchises;  state  taxation  of §  418 

AGENTS, 

insurance  companies;  agreements  as  to  commissions  of;  equal  pro- 
tection of  laws §  300 

of  foreign  corporations;  conditions  imposed  by  States §  353 

AGGREGATE  CORPORATIONS, 

division  into §57 

See  Corporation  Aggregate. 

AGRICULTURAL  COLLEGE, 

as  public  corporation §  68 

AGRICULTURAL  SOCIETIES, 

nature  of,  as  public,  etc.,  corporations §  68 

AGRICULTURE, 

state  board  of;  as  private  corporation §  68 

See  Board  of  Agriculture. 

ALASKA.     See  Territories. 

ALDERMAN, 

office  of,  when  not  a  franchise note,     §  21 

See  Board  of  Aldermen. 

ALIENATION, 

right  of  in  connection  with  corporate  franchise." §11 

street  railway  franchises  to  use  streets,  when  may  be  sold  or  as- 
signed       §  31 

street  railway  cannot  by  contract  disable  itself,  from  performance 

of  public  duty §§  63,  97,  111 

power  to  alienate  franchises;  nature  of  franchise  as  affecting.  ...    §  462 

power  to  alienate  franchises;  general  rule §  463 

same;  basis  of  rule §  464 

liability  for  torts  and  debts  notwithstanding  alienation §  464 

power  to  alienate  franchises;  legislative  authorization §§  465,  466 


INDEX  1009 

ALIENATION— Continued: 

power  to  alienate  franchises;  implied  legislative  authorization; 

presumptions;  construction  of  statutes §  467 

power  to  alienate  franchises;  railroad  companies §  468 

power  to  alienate  franchises;  banks;  street  railway  companies; 

telegraph  lines §  469 

power  to  alienate  franchises;  water  and  irrigation  companies.  ...    §  470 

power  to  mortgage §  471 

mortgaged  franchise  or  property;  purchaser;  reorganization  of 

corporation;  obligation  of  contract §  329 

power  to  make  and  take  a  lease;  railroad  companies;  natural  gas; 

gas  and  electric  companies §  472 

illegal  or  ultra  vires  lease;  ratification;  estoppel;  equity;  validat- 
ing statutes §  473 

power  to  assign  franchises §  474 

assignment  of  franchises  of  insolvent  or  bankrupt  corporation; 

what  passes §  475 

power  to  purchase §  476 

purchaser  of  canal  and  "franchises"  whether  obligated  to  main- 
tain it  as  public  way note,     §  72 

judicial  sales;  decree;  generally §  477 

judicial  sales;  what  does  and  does  not  pass;  purchasers'  rights  and 

obligations §  478 

mortgage  of  franchise;  what  passes  at  foreclosure  sale •. .  .      §  30 

exemption  or  immunity  from  taxation  or  governmental  regula- 
tion; not  transferable  unless  expressly  authorized  by  State.  ...    §  479 
exemption  or  immunity  from  taxation,  etc.,  continued;  judicial 

6ale;  sale  under  mortgage  or  statutory  lien §  480 

exemption  or  immunity  from  taxation,  etc.,  continued;  whether 

passes  on  consolidation  of  corporations §  481 

when  exemption  does  and  docs  not  pass;  illustrative  derisions.  .  .    §  482 
exemption  or  immunity  from  taxation,  etc.;  rule  as  to  the  effect 

of  reservation  of  power  to  alter,  amend  or  repeal §  483 

same;  illustrative  decisions §  484 

of  franchises.     See  Assignment;  Obligation  of  Contracts;  Public 
Service  Commissions  Law;  Sale. 

AMENDMENTS  OF  STATUTES, 

corporation's  powers  may  be  enlarged  by  legislative  amendments  §  143 
See  Construction  or  Interpretation   of  Statutes;   Obligation   of 
( Jontracts. 

AMERICAN  RAILWAY  ASSOCIATION, 

delegation  of  power  to %154 

ANTI-TRUST  ACTS, 

question  of  relative  benefit  between  public  and  combination  real 

in  discretion  of  I  Songress I  lot 

construction  of  by  state  courts;  effect  of  in  Federal  courts §  280 

CI 


1010  INDEX 

ANTI-TRUST  ACTS— Continued : 

combinations  under;  state  court  decisions;  effect  of  in  Federal 

courts §  280 

APPEAL, 

no  jurisdiction  on  in  matters  of  governmental  or  administrative 

policy §  171 

power  of  appellate  court  on;  reasonableness  of  rates §  174 

to  court  of  chancery;  effect  upon  commissioners'  powers  over  toll 

roads  and  upon  orders  of §  200 

See  Public  Utility  Law. 

APPELLATE  COURT, 

delegation  of  power  to;  reasonableness  of  rates  fixed  by  commis- 
sion     §  174 

APPELLATE  DIVISION  OF  SUPREME  COURT, 

delegation  of  power  by;  construction  of  street  railroads §  183 

APPLIANCES.     See  Public  Utility  Law. 

APPROVAL, 

of  incorporation  and  franchises.    See  Public  Service  Commissions 

Law. 

ARBITRATION, 

grant  of  franchise;  when  subject  to  conditions  as  to §  347 

ASSESSMENTS, 

for  street  paving;  obligation  of  contracts §  338 

See  Taxation. 

ASSESSOR, 

erroneous  decision  of;  sale  by  county  treasurer  for  non-payment 

of  taxes §  278 

ASSIGNEE, 

foreign  corporation  prohibited  from  suing  on  claim  to;  obligation 

of  contract §  306 

See  Receivers. 

ASSIGNMENT, 

what  street  railway  franchises  may  be  assigned §31 

right  of  car  company  to  use  streets  is  assignable §  47 

foreign  assignment;   operation  on  property  in  domestic  State, 

note,  §  292 

resident  and  non-resident  creditors;  preferences §  292 

See  Alienation. 

ASSOCIATIONS, 

voluntary;  membership  in  as  franchises §11 

included  in  term  "  corporation  "  under  constitutions §  52 

included   in   "corporation"   under   Public   Service  Commissions 

Law  of  New  York §  52 


INDEX  1011 

ASSOCIATIONS— Continued  : 

building  and  loan  associations,  as  private  corporations,  etc §  71 

when  included  under  "electrical  corporation"  in  statute §  76 

included  in  "gas  corporation;"  statute §  82 

what  ones  are  within  Public  Utility  Act..  .  §  104,  Appendix  B  (p.  941) 

when  included  as  "railroad  corporation;"  statute §  104 

See  Foreign  Association;  Name  of. 

ATLANTIC  AND  PACIFIC  RAILROAD, 

land  grants  to  aid note,  §  129 

ATTORNEY  GENERAL, 

power  of  as  to  enforcement  of  statutes;  party  defendant, 

note  (p.  700),   §  416 
committed  for  contempt  for  refusal  to  comply  with  order  as  to 

rate  regulation  statute;  habeas  corpus  writ  refused,  note  (p.  701),  §  416 
See  Public  Utility  Law;  State  Officers. 

ATTORNEY  OR  COUNSELLOR, 

right  to  be,  as  franchise §  21 

ATTORNEYS, 

fees  as  costs  against  insurance  company;  judgment  of  state  court; 

Federal  jurisdiction §  279 

fees;  when  requirement  that  certain  corporations  pay  as  costs; 

constitutional  law §  299 

fee  as  costs  against  insurance  companies;  equal  protection  of  laws.   §  300 
fees  to  enforce  lien  against  corporation  property  for  wages,  note,   §  300 
fees;  conditions  imposed  upon  corporations  as  to  payment  of;  ex- 
pense of  ordinances §  347 

AUCTION, 

power  of  police  juries  to  offer  ferry  privileges  at  public §  201 

AUTOMATIC  COUPLERS, 

safety  devices;  railroads;  regulation  of §  385 

AUTOMOBILE, 

when  tolls  cannot  be  demanded  for,  by  bridge  company.  . .  .note,     §  17 


B. 

BAGGAGE  COMPANIES, 

additional  franchise  tax §  427 

BANK  I. V., 

powers;  monopoly;  nature  of  franchise &  22 

franchise  is  property note,  §  26 

powers;  righl  to  exercise  distinct  from  franchise  to  he §32 

corporations,  how  classified 5  55 

delegation  of  power  to  commissioner  of §  157 


1012  INDEX 

BANKING  ASSOCIATIONS, 

held  liable  as  corporation,  to  taxation §  52 

BANKRUPT, 

corporation;  assignment  of  franchises  of;  what  passes §  475 

BANKS, 

charter  of  is  held  a  franchise §18 

business  of  banking  when  not  a  franchise §18 

business  of,  open  to  all  at  common  law §18 

capital  attached  to  franchise  is  another  property §  34 

corporate  property  of,  separate  from  its  franchise §  34 

stock  ownership  as  affecting  character  of  corporation §  62 

as  public,  quasi-public,  and  private  corporations §  69 

when  not  a  private  corporation note,  §  126 

Congress  has  power  to  incorporate  national §  126 

created  by  Congress;  State  has  no  control  over,  except  Congress 

permits §  126 

charter  by  special  act;  subsequent  constitution  prohibiting  such 

acts §  215 

officers  or  directors  of  assenting  to  receipt  of  deposits  after  knowl- 
edge of  insolvent  condition;  constitution  self-executing  which 

fixes  responsibility §  226 

requirement  in  act  of  incorporation  as  to  amount,  etc.,  of  shares  of 

capital  stock,  not  condition  precedent §  226 

taxation  of  national;  equal  protection  of  laws §  300 

stipulation  in  charter  as  to  amount  of  tax;  obligation  of  contracts.  §  334 

tax  on  which  includes  United  States  securities §  443 

See  Alienation;  National  Banks;  Obligation  of  Contracts;  Savings 
Institution;  Stockholders;  Taxation. 

BATTURE, 

right  of  way  over  to  navigable  water §  345 

BICYCLE.     See  Wheelmen. 

BLACKSTONE, 

definition  of  franchise  by §  1 

BOARD.     See  County  Supervisors;  Name  of  Board;  Officers. 

BOARD  OF  AGRICULTURE, 

nature  of;  as  private  corporation §  68 

delegation  of  power  to §  156 

BOARD  OF  ALDERMEN, 

when  proper  authority  to  consent  and  board  of  electrical  control 

not;  subways note,   §  191 

power  as  to  grant  of  location,  construction,  etc.,  of  street  rail- 
ways; regulation  of  fares §  197 

embraced  in  term  "municipal  council".  ..  .Appendix  B  (§3,  p.  942) 


INDEX  1013 

BOARD  OF  ASSESSMENT, 

powers;  exemption  from  taxation §  453 

BOARD  OF  CHOSEN  FREEHOLDERS, 

are  included  in  "corporations"  in  statute  as  to  damages.  .   note,     §  58 

BOARD  OF  COMMISSIONERS  OF  ELECTRICAL  SUBWAYS, 

extent  of  powers  of;  conduits  and  use  of  space  therein §  191 

BOARD  OF  ELECTRICAL  CONTROL, 

when  board  of  aldermen  proper  body  to  consent  instead  of;  sub- 
ways     note,  §  191 

extent  of  powers  of;  underground  electric  wires §  191 

BOARD  OF  EQUALIZATION, 

nature  of;  agency  of  State §  182 

See  Commissioner  of  Equalization;  Taxation. 

BOARD  OF  EQUALIZATION  COMMISSIONERS, 

delegation  of  power  to  equalize  taxes  as  quasi-judicial §  182 

BOARD  OF  ESTIMATE  AND  APPORTIONMENT, 

power  to  grant  franchises;  transfer  of  power  from  another  board; 

cumulative  voting §  192 

BOARD  OF  GAS  TRUSTEES, 

limited  powers;  regulation  of  gas  rates §  198 

BOARD  OF  LOAN  COMMISSIONERS, 

delegation  of  power  to;  Territory §  165 

BOARD  OF  RAILROAD  COMMISSIONERS.     See  Public  Service 
Commissions  Law;  Railroad  Commissioners. 

BOARD  OF  RAPID  TRANSIT  RAILROAD  COMMISSIONERS, 
delegation  to;  subways;  city  ownership  and  obligations;  change 

of  construction  of  plans §  190 

See  Public  Service  Commissions  Law. 

BOARD  OF  SUPERVISORS. 

delegation  of  power  to;  effect  of  grant  of  turnpike  franchises.  ...    §  199 
powers  as  to  bridges $  200 

BOARD  OF  TRADE, 

membership  in  not  a  franchise §11 

BOARD  OF  TRANSPORTATION, 

Btatute  providing  for  is  remedial \  264 

BONDS, 

special  law  authorizing  city  to  issue  I"'"'  w aterworks,  not  a  granl  of 
"corporate  powers  and  privileges"  note,     §31 

traction  of  statutes;  delivery  of  county  bonds  to  railroad 
company §  228 


1014  INDEX 

BONDS— Continued: 

in  aid  of  railroads;  sufficiency  of  title  to  statutes §  247 

obligation  of  State  to  pay;  state  court  decisions;  Federal  question.   §  279 
See  Public  Service  Commissions  Law;  Railroad  Companies. 

BOOKKEEPING, 

forms  of.    See  Public  Utility  Law. 

BOOKS.     See  Public  Utility  Law. 

BOOM  COMPANY.    See  Log  Driving  or  Boom  Company. 

BOROUGHS, 

may  be  included  in  words  "other  corporate  bodies" note,     §  56 

BREWING  COMPANY, 

license,  etc. ,  tax §  361 

BRIDGE  CORPORATIONS, 

ownership  of  stock  as  affecting  character  of §  62 

how  classed;  nature  of §  55 

as  private,  etc.,  corporations §  70 

power  of  Congress  to  create §  127 

consent  of  local  authorities  to  use  streets §  187 

BRIDGES, 

right  to  construct  public,  is  a  franchise §  15 

as  a  structure  not  a  franchise note,  §§  15,  34 

franchise  is  of  same  nature  as  ferry  franchise §  15 

ferry  only  a  substitute  for note,  §  15 

definition  of  public  bridge;  and  as  part  of  road  or  highway.  .   note,  §  15 

company,  when  cannot  demand  tolls  for  automobile note,  §  17 

right  to  tolls  is  franchise §  17 

franchise  is  property note,  §  26 

grant  by  town  trustees  to  make  roadway  and  erect  bridge  confers 

franchise §  48 

publici  juris note,  §  53 

exclusive  grants  for,  are  grants  of  franchises  of  public  character, 

note,  §  63 

as  public  highways note,  §  63 

rights  of  railroad  company  to  construct,  not  superior  to  public 

rights,  as  to  drainage §  75 

as  part  of  "railroad  corporation;"  statute §  104 

when  not  a  lawful  structure  over  navigable  river §  127 

act  of  Congress  incorporating  North  River  Bridge  Company  is 

constitutional §  127 

powers  of  Congress  over  railroad  bridges §  127 

powers  of  Congress  and  the  States  as  to §  127 

power  of  Congress  to  declare  it  a  lawful  structure  after  being  held 

a  nuisance;  or  after  injunction  suit;  post  route §  128 


INDEX  1015 

BRIDGES— Continued : 

legislative  grant  necessary §  144 

as  including  railroad  bridges §  145 

rights  of  State  as  to;  power  of  Congress  to  interpose §  145 

powers  of  State  over;  bridge  corporation §  145 

franchise;  power  to  grant  may  be  delegated §  148 

delegation  of  power  as  to,  to  Secretary  of  War §  152 

delegation  of  power  to  commissioner  of §  158 

power  of  courts  to  establish §171 

over  navigable  river  between  States;  jurisdiction;  when  Federal 

court  will  not  interfere  with  decision  of  highest  state  court.  ...  §  184 

delegation  to  city  of  power  over §  186 

powers  of  commissioners  of  highways  and  board  of  supervisors.  .  §  200 

powers  of  police  juries  over §  201 

Charles  River  bridge;  powers  expressly  granted;  exclusive  privi- 
leges not  regarded;  implications  as  to note,  §  257 

and  ferries;  separate  grants  of  franchises;  rule  of  construction ...  §  258 
construction   of  statute  of  incorporation,   etc.,   by  state   court 

adopted  by  Federal  courts §  275 

requirement  as  to  non-erection  of  other  bridges  construed §  286 

railroad  company  required  to  remove  bridge;  equal  protection  of 

law;  due  process  of  law note,  §  298 

obligation  of  contracts §  340 

See  Drawbridge;  Obligation  of  Contracts;  Railroad  Bridges;  Rail- 
road Toll  Bridges;  Taxation;  Toll  Bridges. 

BRITISH  STATUTE, 

adopted;  rule  as  to  construction  of §  269 

BUILDING  AND  LOAN  ASSOCIATIONS, 

as  private  corporations,  corporate  partnerships,  or  quasi-partner- 

ships §  71 

sufficiency  of  title  of  statute 5  245 

BUREAU  OF  INSURANCE, 

delegation  of  power  to §  163 

BUSH  ACT, 

interpretation  or  construction  of §  286 

c. 

CALIFORNIA, 

acts  of  Congress;  grants  of  land  in  to  Edison  Electric  Company  for 
power  plants ,,()1f>.  §  130 

CANAL  COMPANIES, 

how  classed;  nature  of 5  •r'.r> 

receive  franchises  upon  consideration  that  public  served.  ,  ,   note,  I  63 

canal  as  public  highway note,  §  72 


1016  INDEX 

CANAL  COMPANIES— Continued: 

nature  of,  are  private  corporations §  72 

strict  construction  of  grant  against  grantee §  255 

obligation  of  contracts;  tolls §  340 

CANALS, 

right  to  improve  navigation  by  is  a  franchise §15 

grant  to  construct;  monopoly;  exclusiveness;  nature  of  franchise     §  22 
Corporations  for  constructing,  as  affected  as  to  classification  by 

ownership  of  stock §  62 

publici  juris note,     §  63 

obligation  of  contract §  340 

See  Eminent  Domain;  Obligation  of  Contracts. 

CANAL  STEAMBOAT  COMPANY, 

additional   franchise  tax §  427 

CAPITAL, 

of  bank  attached  to  franchise  is  another  property §  34 

employed  as  element  of  value;  gas  rates;  regulation §  392 

meaning  of  term §  425 

CAPITAL  STOCK, 

power  of  railroad  and  warehouse  commission  as  to  increase  of .  . .  .  §  169 

omissions  as  to,  etc.;  when  do  not  invalidate  act  of  incorporation  §  235 

false  representations  as  to;  strict  construction  of  statutes §  252 

validity  of  statute  as  to  subscriptions  to;  state  court  decision; 

Federal  jurisdiction §  276 

condition  that  foreign  corporation  be  possessed  of  certain  amount 

of §291 

defined. §  425 

and  shares  in  joint-stock  company  represent  what  property  note,  §  425 

and  corporate  property  distinguished note,  §  425 

See  Taxation. 

CAR  COMPANIES, 

are  "  common  carriers; "  statute §  74 

within  Public  Utilities  Act §  104 

CARRIERS, 

of  water;  irrigation  companies  as §  88 

See  Common  Carriers. 
CARS, 

distribution  of.     See  Public  Service  Commissions  Law. 

CATTLE, 

regulation  of  transportation  of §  156 

transportation  of;  regulation  of  commerce;  inspection  law;  police 

power §§  372,  373 

CEMETERY  COMPANY, 

obligation  of  contract §  321 


INDEX  1017 

CENTRAL  PACIFIC  RAILROAD, 

state  railroad;  Federal  franchises §  129 

CERTIFICATE, 

of  authority  to  foreign  corporation  is  franchise §13 

of  authority  by  commission  of  gas  and  electricity §  160 

of  public  convenience  and  necessity;  determination  by  railroad 

commissioners  as  to,  not  subject  to  judicial  revision §  184 

recording  evidences  acceptance  of  charter §  350 

filing;  conditions  imposed  on  foreign  corporations §  353 

CHARLES  RIVER  BRIDGE.     See  Bridges. 

CHARTERS, 

and  franchise;  distinctions;  charter  rights  and  privileges  derived 
through  organization;  "additional  franchise  or  privilege"  ac- 
quired after  incorporation §  4 

or  prescription  necessary  to  ferry  franchise note,     §  15 

of  bank  is  held  a  franchise §  18 

phrase  to  grant  corporate  charters  equivalent  to  phrase  "to  grant 

corporate  powers  or  privileges" note,     §  31 

defined §  41 

"constating  instruments"  constitute §  41 

and  franchise;  to  what  extent  distinguished §§  41-46 

and  franchise;  distinctions;  how  extent  of  power  is  ascertained.  .  .      §  42 

resort  to  must  be  had  to  ascertain  corporate  powers §  45 

and  franchise;  distinction  exists §  45 

as  synonymous  with  franchise §  46 

of  college  as  contract note,     §  69 

powers  of  Congress  to  charter  savings  institution §  130 

when  Circuit  Court  of  city  no  power  to  grant  charter  to  obstruct 

highway §  176 

exemption  from  taxation;  effect  of  constitution  repealing  exemp- 
tion     §215 

of  bank  under  special  act;  subsequent  constitution  prohibiting 

such  acts §  215 

partial  invalidity §  '_':<"> 

matters  incorporated  by  reference 5  243 

wrong  construction  of  by  state  court;  Federal  jurisdiction §  276 

renewal  after  statute  providing  for  repeal  <>r  amendment  of  all 

charters §284 

repeal  or  amendmenl  of;  eon  si  met  ion  of  statutes $284 

amendment  to  eff eel  purposes  of ;  modifying  or  enlarging  powers  §^"7 

of  subsidized  railroad;  amendment,  etc  ,  of §  :<i-'l 

amendmenl  of;  obligation  of  conl racl     §§  324,  325 

extensions  of  franchise  ;  obligation  of  contracts   §330 

stipulation  as  to  amount  of  bank  taxation;  obligation  of  contracts  5  334 

acceptance  of ;  conditions §§3 18-350 

modification  of  exemptions  in;  acceptance 1 849 


1018  INDEX 

CHARTERS— Continued : 

must  be  accepted §  350 

registering  by  foreign  corporation §  354 

See  Contracts;  Corporations;  Municipal  Charter;  Obligation  of 
Contracts;  Powers;  Special  Charters. 

CHITTY, 

definition  of  franchise  by §  1 

CIRCUIT  COURT  OF  APPEALS  ACT, 

of  United  States,  when  legislative  acts  of  city  are  those  of  State 

within  meaning  of §  177 

CIRCUIT  COURTS, 

delegation  to;  designation  of  telephone  route;  charter  to  obstruct 

highway §  176 

of  United  States;  delegation  of  power  to  enforce  orders  of  Inter- 
state Commerce  Commission;  jurisdiction;  contract  rights  of 
railroads §  177 

refusal  of,  to  interfere  with  administrative  discretion  of  county 

court  as  to  grant  to  railroad §  184 

when  cannot  restrain  grant  by  ordinance  to  street  railway §  184 

commitment    for  contempt;  when  unlawful note  (p.  699),   §  416 

CIRCUIT  JUDGE, 

delegation  of  power  to  appoint  commissioners  of  equalization.  ...    §  183 

CITIZENS, 

when  "limited  partnership  association"  not  shown  to  be  by  plead- 
ing; when  it  is  a §  53 

privileges  and  immunities  of  in  the  several  States §  291 

presumption  as  to  corporation  being  composed  of,  of  State  of 

creation note,  §  291 

of  other  States,  rights  of  as  creditors  of  corporations §  292 

foreign  corporations;  filing  certificate;  jurisdiction note,  §  353 

CITY.     See  Municipality;  Streets. 

CITY  COUNCIL.     See  Municipal  Council. 

CITY  OFFICIALS, 

delegation  of  power  to  by  city  council;  track  elevation;  subway 

construction §  200 

CIVIL  CORPORATIONS, 

division  into §  57 

CIVIL  SERVICE  COMMISSION, 

power  to  appoint  not  a  franchise §  21 

CIVIL  SERVICE  LAW, 

fire  engine  company  within §  81 


INDEX  1019 

CODES.     See  Construction  or  Interpretation  of  Statutes;  Statutes. 
COLLEGE  CASES §  331 

COLLEGES, 

appointment  of  professors  of  as  franchise §  21 

charter  of  as  contract note,     §  69 

Dartmouth  College  a  private  corporation §  73 

authority  of  dental  board  over,  quasi-judicial §  181 

See  Agricultural  College;  Dartmouth  College  Case;  Medical  Col- 
lege; University. 

COLONIES, 

on  severance  of,  power  to  grant  franchises  became  vested  in  people  §  122 

COLOR  BLINDNESS, 

locomotive  engineers ;• §  377 

COLORED  RACE, 

separate  cars  for;  regulation  of  railroads §  386 

COMBINATIONS, 

statutes  against;  strict  construction §  252 

under  Anti-Trust  Act;  when  Federal  court  will  follow  state  court 

decision §  280 

See  Anti-Trust  Acts;  Monopolies. 

COMITY, 

foreign  corporations;  situs  of §  351 

right  to  sue  or  defend;  privileges  and  immunities  of  citizens  in  the 

several  States §  293 

jurisdiction  of  Federal  court;  not  a  question  of.  .    Appendix  C  (p.  985) 

COMMERCE, 

electric  light  is  in  its  nature  an  article  of §  72 

business  of  insurance  is  not §  87 

railroad  carriers  business  as  part  of  trade  or §  106 

See  Interstate  Commerce. 

"COMMERCIAL"  RAILROAD, 

street  railway  in  city  for  carriage  of  passengers  is  not  a note,  §  1 1 1 

COMMISSION, 

validity  and  reasonableness  of  rates  fixed  by;  jurisdiction  of  appel- 
late court  to  determine §  174 

See  Civil  Service  Commission;  Name  of. 

COMMISSION  OF  GAS  AND  ELECTRICITY, 

delegation  of  power  to §  ^" 

abolished  in  New  York.     See  Public  Service  Commissions  Law. 

COMMISSIONER  OF  [NSURANCE, 

delegation  of  power  to §  1 6.? 


1020  INDEX 

COMMISSIONER  OF  BANKING  AND  INSURANCE, 

delegation  to  of  powers §  157 

COMMISSIONERS, 

appointed  by  court  to  determine  whether  street  railway  be  con- 
structed; extent  of  powers  of §  183 

delegation  of  power  to;  regulation  and  control;  railroads §  381 

railroad  and  like  commissioners;  rate  regulation §  401 

COMMISSIONERS  OF  BRIDGES, 

delegation  to  of  powers §  158 

COMMISSIONERS  OF  ELECTRICAL  SUBWAYS, 

submission  to  of  plans,  etc.;  electrical  conductors;  obligation  of 

contracts §  335 

See  Board  of. 

COMMISSIONERS  OF  EQUALIZATION, 

delegation  of  power  to,  by  circuit  judge §  183 

See  Board  of  Equalization. 

COMMISSIONERS  OF  HIGHWAYS, 

powers  as  to  bridges §  200 

COMMISSIONERS  OF  PARK, 

power  of,  to  grant  passenger  railway  in  park note,     §  14 

COMMISSIONER  OF  PUBLIC  BUILDINGS,  LIGHTING,  ETC., 

consent  of,  or  permit  from §  379 

COMMISSIONER  OF  PUBLIC  WORKS, 

refusal  to  designate  location  of  telephone  poles §  140 

COMMISSIONER  OF  WATER  SUPPLY,  GAS  AND  ELECTRIC- 
ITY, 
consent  of,  to  space  for  electric  conductors  in  conduits §  379 

COMMISSIONER  OF  WATERWORKS, 

power  to  contract  with  "lowest  bidder"  cannot  be  controlled  by 

mandamus §  184 

COMMISSIONS.     See  Public  Service  Commissions  Law. 

"COMMODITIES," 

as  franchise §  21 

COMMON  CARRIERS, 

business  of,  not  itself  a  franchise §14 

subject  to  regulation  and  control §  74 

includes  what,  under  Public  Service  Commissions  Law.  ...  §  74,  p.  881 

right  of,  anyone  might  engage  in  business  of §  74 

differs  from  private;  duties  of §  74 

cannot  discriminate §  74 


INDEX  1021 

COMMON  CARRIERS— Continued: 

nature  of  employment,  as  public,  quasi-public,  etc §  74 

express  companies  as §  79 

false  billing.     See  Public  Service  Commissions  Law. 

sleeping-car  companies  are  not §  109 

wharfingers,  when  not §  1 19 

within  Public  Utility  Act §  104 

railroad  companies  as;  obligations  imposed §  105 

telegraph  and  telephone  companies  as note,  §  115 

delegation  to  railroad  and  warehouse  commission;  power  of  regu- 
lation, etc §  169 

state  corporation  commission's  control;  delegation  of  power §  170 

constitutional  provisions  as  to  telegraph  and  telephone  companies 

being,  not  self-executing §  227 

state  court  construction  of  statute  fixing  liability  followed  by 

Federal  court §  276 

consolidation  of;  police  power;  regulation;  Fourteenth  Amend- 
ment     §  295 

right  to  remedy  in  equity;  validity  of  rate  regulation  statute;  ex- 
cessive penalties note  (p.  701),   §  416 

See  Carriers;  Public  Service  Commissions  Law;  Rate  Regulation; 
Taxation;  Transportation  Companies. 

COMMON  COUNCIL, 

grant  by,  to  waterworks  company,  is  legislative  grant  and  a  fran- 
chise        §  16 

legislative  acts  within  rule  which  precludes  court's  inquiry  as  to 

motives  in  passing §  1 37 

acts  of;  extent  of  power  of  courts  to  inquire  into §  184 

consent  of  to  construction  of  street  railway  is  legislative  act.  ...    §  188 

embraced  in  term  "municipal  council" Appendix  B  (§  3,  p.  942) 

See  Municipal  Council. 

COMMON  LAW, 

business  of  common  carrier  has  foundation  in §  14 

COMMONWEALTH.     See  State. 

COMPANY, 

included  in  term  "corporation"  under  Public  Service  Commis- 
sions Law  of  New  York §  52 

COMPETITION, 

long  and  short  hauls;  Interstate  Commerce  Commission §  153 

See  Public  Service  Commissions  Law. 

COMPLAINTS.     See  Public  Service  Commissions  Law;  Public  Utility 

Law. 

CONCESSIONS.     See  Public  Utility  Law. 


1022  INDEX 

CONDEMNATION.     See  Eminent  Domain. 

CONDITIONAL  GRANT, 

race  track  association,  subject  to  conditions §  96 

CONDITIONS, 

precedent  to  charter  taking  effect;  effect  upon  franchises §  43 

implied  in  grant note,     §  63 

imposed  in   grant   of   franchise;   delegation   of   power   to    local 

bodies §  187 

compensation  exacted  as  to  grant  of  franchise  to  telephone  com- 
pany     §  187 

partial  invalidity  of  statute  imposing  same  on  foreign  corpora- 
tions     §  235 

imposed  upon  foreign  corporation;  rule  in  -pari  materia §  266 

requirement  in  act  of  incorporation  as  to  amount,  etc.,  of  capital 

stock  of  bank,  not  condition  precedent §  286 

as  to  amount  of  capital  stock  possessed  by  foreign  corporations.  .    §  291 
municipal  consent  to  construction  of  street  railways;  obligation  of 

contract §  335 

non-compliance  with;  revocation  of  license;  obligation  of  con- 
tracts    §  336 

navigation  company;  obligation  of  contract §  336 

and  regulations;  obligation  of  contracts;  street  paving.  ...    §§  337,  338 

imposed  by  Congress §  341 

imposed  by  legislature §  342 

municipal  powers;  generally §  343 

municipal  control  over  streets;   franchise  rights  of  corporations 

§§344,345 
implied;  railroad  company;  city  streets;  new  streets  and  cross- 
ings; police  power §  346 

payment  of  expenses  or  percentage;  arbitration;  submission  to 

electors §  347 

acceptance §§  348,  349 

same;  implied  acceptance;  presumption;  evidence §  350 

foreign  corporation;  situs  of;  interstate  comity §  351 

power  of  State  to  impose  conditions  upon  foreign  corporations.  .    §  352 
same;  instances;  certificate;  designation  of  corporate  agents,  etc., 

service  of  process §  353 

same;  instances  continued;  insurance,  railroad  and  other  corpora- 
tions     §  354 

power  of  State  to  impose,  upon  foreign  corporations;  agreement 

not  to  remove  suit  to  Federal  court;  waiver  of  right §  355 

as  to  license,  privilege,  business  or  occupation  charge,  rental,  fee 

or  tax;  interstate  commerce;  equal  protection  of  law §  356 

license,  etc.,  fee  or  tax;  constitutional  law;  insurance  companies; 

decisions §  357 

license,  etc.,  fee  or  tax;  interstate  commerce;  express  companies; 

decisions §  358 


IXDEX  1023 

CONDITIONS— Continued : 

license,  etc.,  fee  or  tax;  constitutional  law;  railroads;  consolidated 

railroads;  street  railroads;  decisions §  359 

license,  etc.,  fee  or  tax;  telegraph  companies §  360 

license  fee,  etc.;  constitutional  law;  gas  franchises;  brewing  com- 
pany; packing  houses;  decisions §  361 

imposing  new  conditions;  police  power §  362 

subsequent;  construction  of;  performance §  363 

CONDUITS, 

property  rights  in §  33 

consent  of  city  for  use  of §  187 

electrical;  powers  of  city's  electrical  commission;  grant  or  refusal 

of  use  of §  191 

powers  of  village  trustees note,  §  199 

refusal  of  city  to  permit  laying.  ": §  241 

power  of  city  to  order  wires  placed  in;  deprivation  of  property.  .  .  §  298 

right  to  construct  steam  conduits  in  streets,  not  superior §  345 

application  for  space  in §  379 

CONGRESS, 

when  business  of  railroad  carrier  subject  to  control  of;  interstate 

commerce §  1 06 

power  of,  to  establish  corporations;  generally §  123 

power  of,  to  grant  additional  franchises §  124 

power  of,  over  franchises  of  state  corporation;  interstate  com- 
merce; generally §  125 

grants  by;  banks §  125 

powers  of;  bridge  corporation;  bridges;  commerce §  127 

power  of,  to  declare  bridge  lawful  structure  after  being  adjudged 

nuisance;  or  after  injunction  suit;  post  route §  128 

Federal  aid  to  railroad  and  telegraph  companies §  129 

authority  granted  by,  to  Secretary  of  Interior  to  grant  rights  of 
way  for  telegraph  and  telephone  lines  through  Indian  Territory 

exclusive *  '  *0 

power  of,  over  Territories &  130 

acts  of ,  making  grants  of  rights  to  certain  companies note  §  130 

extent  of  authority  granted  by  Post  Roads  Art;  telegraph  com- 
panies   5  ' :M) 

legislative  discretion  as  to  grants  of   franchises,  etc.;  power  of 

courts  to  interfere »  '  " 

control  over  navigable  waters 8  145 

power  of,  over  bridge  franchises 5  145 

delegation  of  powers  by §§151    155 

pved  powers;  amendment  of  charter $§321,322 

cannot  abolish  or  limil  tolls  so  as  to  impair  bondholder'  §310 
interstate  commerce;  power  of  States  where  Congress  has  nol 

acted §8367,368 


1024  INDEX 

CONGRESS— Continued : 

regulation  of  rates  by §  402 

See  Conditions;  Powers;  Statutes. 

CONSENT, 

by  town  authorities  to  lay  conductors  for  gas  is  franchise §  16 

of  city  as  prerequisite  to  use  of  streets,  etc §  44 

of  city  to  construct  spur  track  not  a  franchise  but  a  license §  47 

to  use  of  streets  by  quasi-public  corporations §  47 

of  city  to  car  company  to  construct  connecting  spur  track,  a 

license  not  a  franchise §  47 

of  railroad  commissioners  required,  but  refused;  legislature  may 

cure  such  defect §  140 

of  subordinate  body  unnecessary  to  exercise  of  power  by  legis- 
lature     §  141 

of  railroad  commissioners  not  necessary  to  enable  State  to  grant 

franchise  to  street  railway §  167 

of  abutting  property  owners  to  construction  of  street  railways; 
not    obtained;    appointment    of    commissioners    by    Supreme 

Court §  183 

of  property  owners;  street  railroads;  determination  of  commis- 
sioners confirmed  by  appointing  court  taken  in  lieu  of  consent  §  183 

of  city  for  use  of  conduits  and  subways §  187 

of  city  to  exercise  of  franchise  of  water  company §  187 

of  abutting  owners  generally §  187 

subways;   board  of  aldermen  and  not  board  of  electrical  con- 
trol     note,  §  191 

by  city  as  prerequisite  to  construction  of  street  railways;  obliga- 
tion of  contract •  •  •    §  335 

as  condition  precedent;  regulation  and  control §§  379-380 

See  Abutting  Owner;  Electors;  Permits. 

CONSIDERATION, 

franchise  must  be  based  upon  public  considerations §§14,  464 

for  building  bridge  is  franchise  granted note,  §  15 

of  franchise  as  performance  of  public  service §16 

certain  franchises  founded  on  valuable,  and  a  contract §  24 

for  grant  of  franchise  is  that  public  be  served;  public  service  cor- 
porations     note,  §  63 

franchises  are  contracts  based  upon  valuable note,  §  63 

for  ferry  franchise  is  right  to  take  tolls §  80 

grant  of  franchise  to  supply  gas  based  upon §  82 

for  railroad  grants  is  public  good §  97 

for  contract  with  city  as  to  maximum  rates;  use  of  streets §  187 

grant  of  lighting  franchise  may  be  given  without §  200 

grant  as  gratuity §  306 

See  Contracts. 

CONSOLIDATION, 

right  to  consolidate  is  franchise §  12 


INDEX  1025 

CONSOLIDATION— Continued : 

and  merger  of  gas  companies;  sufficiency  of  title  to  statutes §  245 

of  corporations;  power  to  alter  or  repeal;  obligation  of  contract.  .    §  331 

of  corporations;  exemption  from  paving  assessments §  338 

non-acceptance  in  form  required §  349 

railroads;  test  of  reasonableness  of  rates §  410 

of  corporations;  effect  of  as  to  exemption  or  immunity  from  tax- 
ation     §§  481,  482 

when  value  of  property  as  basis  of  rate  regulation  fixed  by  time  of 

Appendix  C  (pp.  986,  996) 
increase  in  valuation  of  franchise  or  property  after  time  of;  basis  of 

rate  regulation Appendix  C  (p.  986) 

See  Alienation;  Obligation  of  Contracts;  Taxation. 

CONSTITUTION, 

definition  of  franchise  under v §  9 

franchises  classed  as  property  under;  in  California §  37 

of  New  York;  includes  what  in  definition  of  corporations §  52 

of  New  York;  power  to  sue  includes  only  actions  relating  to  corpo- 
rate rights note,  §  52 

definition  of  "corporation"  whether  a  general  one  or  limited  to 

particular  constitution §  53 

classification  of  corporations  under §  58 

provisions  of  vesting  power  in  legislature  to  repeal  an  exemption 

from  taxation §  61 

corporations  not  "citizens"  under  Federal  Constitution §  67 

'    and  laws  of  United  States,  made  in  pursuance  t  hereof,  arc  supreme 

law  of  land §120 

rule  of  is  that  national  government  is  one  of  enumerated  powers.  .  §  1 20 

Federal,  as  limitation  on  powers  of  st  ate  legislature §  1 37 

when  provisions  of  as  to  grant  of  franchises  are  and  are  not  self- 
executing §§  140,  225  227 

conditions  imposed  by;  grants  of  franchises §  I  s< 

within  term  "laws;"  obligation  of  contracts §  305 

See  Grants. 

CONSTITUTIONAL  LAW, 

provision  in  constitution  that  righl  to  colled  water  rales  is  fran- 
chise       §     ' 

right  to  practice  law  as  privilege,  etc.,  no1   protected  by  Four- 
teenth   Amendment "",<'-     5  21 

grant  by  city  when  not  grant  of  "corporate  powers  or  privilt 
within  constitutional  prohibition  again  I   pat    ing     pecial  law, 
etc 

equal  protection  of  the  laws;  corporations  as  persons 

Fourteenth  Amendment;  corporatii  

"due  process  of  law,"  corporation!  8  Ml 

when  statute  may  be  declared  unconstitutional  by  state  corpora- 
tion commit   ion 

65 


§31 

S  tic, 


§  70 


1026  INDEX 

CON  STITUTIONAL  LAW— Continued : 

drainage  companies;  rights  of  railroad  company §  75 

insurance  companies  are  not  "citizens"  with  guarantee  of  priv- 
ileges and  immunities §  87 

act  of  Congress  to  incorporate  North  River  Bridge  Company, 

constitutional §  127 

constitutional  and  legislative  powers  of  State §§  132-146 

Fourteenth  Amendment  does  not  limit  subjects  for  exercise  of  po- 
lice powers §  149 

delegation  of  power  to  Secretary  of  War  as  to  bridges §  152 

delegation  of  power  to  inspectors  of  coal  mines  not  unconstitu- 
tional     §  162 

statute  allowing  certain  subordinate  agencies  to  prescribe  form  of 

standard  policy  unconstitutional §  163 

delegation  to  railroad  commissioners  not  unconstitutional  as  del- 
egation of  legislative  powers §  167 

statute  appointing  railroad  commission  when  not  unconstitu- 
tional as  establishing  joint  rates,  etc §  167 

validity  of  statute;  power  of  railroad,  etc.,  commission  as  to  in- 
crease of  capital  stock §  169 

statute  constitutional  which  empowers  courts  of  equity  to  pre- 
scribe construction  of  railway  crossings §  172 

statute  constitutional  which  empowers  Supreme  Court  to  deter- 
mine reasonableness  of  water  rates §  173 

delegation  of  power  to  probate  courts  as  to  use  of  streets;  when 

constitutional §  179 

statute  creating  court  of  visitation  when  unconstitutional §  180 

Fourteenth  Amendment;  review  by  Federal  courts  of  action  of 

taxing  bodies  or  state  agencies §  182 

delegation  of  powers  to  board  of  equalization  not  unconstitutional  §  182 
authorization  to  city  to  construct  railroad  not  unconstitutional.  .    §  186 
when  delegation  of  exclusive  power  to  city  council  to  license,  reg- 
ulate, fix  rates,  etc.,  unconstitutional;  ferries §  188 

when  statute  conferring  powers  as  to  toll  roads  and  providing  for 

hearings  and  appeal  is  unconstitutional §  200 

requirements  to  title  of  statute §  245 

title  of  acts  which  amend,  revive  or  repeal §  246 

title  to  statutes;  instances;  incorporation;  expropriation;  rail- 
roads; street  railroads;  bonds  in  aid  of  railroads;  lien  on  and 
sale  of  railroad;  electrical  conductors;  fraudulent  elections  in 

corporations;  foreign  corporations §  247 

effect  of  new  constitution  where  corporation  dissolved  and  all  its 

property  transferred  to  new  corporation §  286 

constitution;  grant  and  limitation  on  powers  of  governments;  ex- 
press and  implied  powers;  construction §§  289,  290 

privileges  and  immunities  of  citizens  in  the  several  States §  291 

same;  discrimination;  tax  law;  deduction  of  debts;  creditors  in 

different  States §  292 


INDEX  1027 

CONSTITUTIONAL  LAW— Continued  : 

same;  actions;  statutes  of  limitations §  293 

the  Fourteenth  Amendment;  generally *.  .    §  294 

same;  police  power §  295 

privileges  and  immunities  of  citizens  of  the  United  States §  296 

due  process  of  law §§  297-299 

equal  protection  of  the  laws ■ §  300 

new  constitution;  obligation  of  contracts §  334 

jurisdiction  of  Federal  court  when  exclusive;  validity  of  state 

statute note  (p.  700)  §  416 

state  rate  statute  prima  facie  valid note  (p.  701)  §  416 

limitations  on  power  to  tax §  417 

validity  of  exemptions  from  taxation §  456 

statute  as  to  pressure  of  gas Appendix  C  (p.  987) 

Federal  court  has  jurisdiction  over  questions  of  constitutionality 

of  statutes Appendix  C  (p.  989) 

New  York  statute  appointing  gas  commission  unconstitutional 

Appendix  C  (p.  990) 
statutes  may  be  partly  void,  partly  valid.  . .  .  Appendix  C  (pp.  987,  1002) 
See  Construction  or  Interpretation  of  Constitutions;  Construction 
or  Interpretation  of  Statutes;  Due  Process  of  Laws;  Equal  Pro- 
tection of  Laws;  Interstate  Commerce;  Obligation  of  Contracts; 
Privileges  and  Immunities  of  Citizens;  Rate  Regulation;  Special 
Acts;  Taxation. 

CONSTITUTIONAL  POWERS, 

of  Federal  government;  source  of  franchise §§  120-131 

CONSTRUCTION  OR  INTERPRETATION  OF  CONSTITUTIONS. 

Federal  and  state  powers  under  constitutions;  distinctions,   §§  120,121 

differences  in  rules  as  to,  of  Federal  and  state  constitutions §  121 

interpretation  or  construction;  generally §204 

intent;  effect  given  to  every  part;  ordinary  signification  of  words; 

grammatical   construction ' §  205 

context ;  ordinary  and  technical  meaning  of  words;  phrase  or  word 

in  different  parts  of  instrument §206 

plain  language  of  constitution  cannot  be  ignored;  repugnant  pro- 
visions     §  '-'07 

meaning  of  constitution  as  understood  by  its  framers;  construc- 
tion  • §208 

striei  construction §  209 

implied  matters,  a  pari  of  constitution  §  210 

punctuation §  '-'1 1 

interpretation  in  view  of  common  law  §  212 

constitutional    prohibitions;    proviso;    exception    from    general 

words 

partially  invalid  provisions  5  21  I 

charter  of  bank  under  special  act;  mbsequenl  constitution  ; 
hibiting  such  acts §215 


1028  INDEX 

CONSTRUCTION  OR  INTERPRETATION  OF  CONSTITUTIONS— Con- 
tinued: 

special  acts;  constitution  prohibiting,  not  retroactive §  215 

exemption  from  taxation;  effect  of  constitution  repealing  same.  .  §  215 
taxing  district  incorporated  by  special  law;  subsequent  constitu- 
tion   §  215 

statute  partially  invalid;  railroad  commission;  rate  regulation.  .  .  §  215 

prospective;  retrospective §  215 

corporations  required  to  be  formed  under  general  laws;  constitu- 
tional amendment;  not  retroactive §  215 

contemporaneous;  extrinsic  matters;  history;  debates  and  pro- 
ceedings in  convention §  216 

contemporaneous  construction;  legislative  construction §  217 

special  laws  creating  corporations;  constitutional  prohibition  as 

to  same §  218 

exemption  from  taxation §  218 

construction  long  continued  and  acquiesced  in  by  legislative  and 

executive  departments §  218 

long  and  continued  usage §  219 

amendments  to  constitution §  220 

"ratify"  and  "approve"  not  equivalent  to  words  "to  adopt"  or 

"to  incorporate  into;"  constitutional  amendments note,  §  220 

title  of  legislative  enactment  proposing  constitutional  amend- 
ment   §  221 

revised  constitution;  re-enactment §  222 

constitution  adopted  from  another  State;  construction §  223 

former  constitution  repealed  by  implication §  224 

whether  constitutional  provisions  self-executing §  225 

when  constitutional  provision  is  self-executing;  instances §  226 

when  constitutional  provision  is  not  self-executing;  instances.  .  .  §  227 

CONSTRUCTION  OR  INTERPRETATION  OF  STATUTES, 

monopolies  not  favored §  23 

exclusive  privilege  to  supply  light  or  heat §  23 

grant  of  exclusive  rights  not  favored  by §  23 

statutes  presumed  valid  until  clearly  shown  unconstitutional.  ...  §  121 
Interstate  Commerce  Act;  adoption  of  language  of  English  Traffic 

Act §  153 

Interstate  Commerce  Act;  rebates §  153 

general  words  following  specific  enumeration §  163 

transactions  resulting  in  delivery  of  county  bonds  to  railroad 

company §  228 

constitutional   law;   interpretation  or  construction   of  statutes; 

generally §  228 

invalidity  for  uncertainty;  undue  or  unreasonable  preferences, 

etc.,  by  corporations §  230 

judicial  authority  and  duty  to  determine  constitutional  questions.  §  229 

validity  of  statutes;  generally §  230 


INDEX  1029 

CONSTRUCTION  OR  INTERPRETATION  OF  STATUTES— Continued: 
presumption   that   legislative  enactment   constitutional;   repug- 
nancy must  clearly  appear §  231 

when  statute  void  which  provides  for  forfeiture  as  to  receiving, 

etc.,  telegraph  messages §  232 

same;  exception  or  qualification  of  rule §  232 

conflicting   provisions;    validating;    interpretation   or   construc- 
tion; two  constructions §  233 

partial  invalidity §  234 

partial  invalidity;  instances §  235 

intent;  effect  to  be  given  to  every  part §  236 

plain  and  manifest  intention §  237 

natural  and  reasonable  effect  and  construction;  ordinary  or  popu- 
lar meaning;  absurdity  or  injustice §  238 

literal  meaning;  intention  and  letter  of  statute §  239 

general  and  specific  words  or  clauses;  general  legislation §  240 

of  special  words  and  clauses  in  grants  of  franchises  or  privileges  to 

street  railway,  railroad  and  electric  light,  etc.,  companies.  ...    §  241 

as  to  conflicting  railroad  grants;  undivided  moiety §  242 

matters  incorporated  by  reference §  243 

title  of  statute §  244 

punctuation ;  ■  •    §  ^4S 

order  of  arrangement;  transposition;  alteration;  omission;  rejec- 

tions §249 

construction  of  proviso  or  exception §  250 

liberal  construction;  meaning  extended;  implication §  251 

strict  construction 8  "°~l 

common  law;  statutes  in  derogation  of •    §  253 

public  grants  of  franchises,  privileges,  etc.;  construction  against 

grantee ' ' 

same;  instances;  railroads;  street  railroads;  submarine  railway; 
gas,  telephone,  canal,  water  and  turnpike  companies;   ferry, 

eminent  domain • 

same;  instances;  public  land  grants;  railroad  aid §'256 

erant  of  exclusive  franchises,  rights  or  privileges;  strict  const  ruc- 

6  . .  5  257 

tion \ 

separate  grants  of  franchises;  rule  of  construction 5  -•_'* 

settled  judicial  construction *  j*59 

practical  construction;  parties ■    » 

effect  of   interpretation;    beneficial    reasons;    natural  justice   and 

equity;  inconvenience;  injury  or  hardship.  §  ->M 

contemporaneous  construction;  extraneous  matters;  history;  de- 

...    $  262 

bates.etc .,.        • 

policy  of  government  of  legislative  body  or  oi  law;  public  policy; 

general  principles  of  law 

remedial  Btatutes •  "    ; 

rule  in  pari  materia 

same;  exceptions  to  or  qualifications  of  rule 5  -  " 


1030  INDEX 

CONSTRUCTION  OR  INTERPRETATION  OF  STATUTES— Continued : 

words  or  provisions  of  prior  statutes  adopted  in  later  act §  268 

derivative  statutes;  construction  of  statutes  adopted  from  foreign 

State  or  country §  269 

re-enactment;  consolidation;  revised  statutes;  codes §  270 

construction  by  State  of  its  statutes;  how  far  respected  in  courts 

of  other  States §  271 

construction  of  state  constitutions  and  statutes  by  state  courts; 

how  far  respected  by  Federal  courts §§  272,  273 

same;  exceptions  or  qualifications  of  rule §  274 

same;  instances;  incorporation  acts;  eminent  domain;  corporate 

powers §  275 

same;  instances;  common  carriers;  railroads §  276 

same;  instances;  revenue;  taxation §  277 

same;  instances;  exemptions  from  taxation;  impairment  of  obli- 
gation of  contract  as  to  taxation §  278 

same;   instances;   impairment   of  obligation   of  contract;   Four- 
teenth Amendment §  279 

same;  instances;  statutes  penal  in  nature;  trustees  of  corporations; 

anti-trust  laws §  280 

same;  instances;  foreign  corporations §  281 

repeal  or  amendment  of  statutes §§  282,  283 

same;  instances §  284 

same;  instances;  taxation  and  assessment §  285 

construction  of  statutes,  charters  and  ordinances;  miscellaneous 

cases §  286 

prospective  and  retrospective  operation §  287 

validating  statutes;  waiver  or  correction  of  defects  or  irregularity.  §  288 

state  rate  statute  prima  facie  valid note  (p.  701),  §  416 

franchise  tax;  capital  stock;  meaning  of  terms;  nature  of  tax.  ...  §  425 

exemption  from  taxation §  455 

validity  of  exemption  from  taxation §  456 

alienation  of  franchises §  467 

See  Public  Service  Commissions  Law.         ■ 

CONTEMPT, 

commitment  for;  when  unlawful note  (p.  699),  §  416 

CONTRACT, 

"franchise"  as  a §  4 

with  city  to  run  street  railway,  when  not  a  franchise §14 

"news  contract"  as  franchise §  21 

right  of  corporation  to,  is  franchise §  32 

is  agreement §  §  41 ,  45 

whether  certain  grants  are  a;  distinctions §  47 

franchises  are  contracts  based  upon  valuable  consideration,  note,  §  63 

charter  of  college  as note,  §  69 

by  irrigation  company  with  consumer;  liability  of  company  for 

breach §  88 


INDEX  1031 

CONTRACT— Continued : 

irrigation  companies  cannot  limit  liability  by §  88 

by  railroad  company  intended  to  absolve  it  from  obligations  is 

void §  97 

sleeping-car  companies'  obligations  rest  upon  contract  to  furnish 

accommodations M  00 

street  railway  cannot  by  contract  disable  itself  from  performance 

of  public  duty §  1 1 1 

in  which  public  interested;  railroad  commission's  powers  as  to 

reasonableness  of §  1 67 

extent  of  power  of  court  to  inquire  into  validity  of  lighting  con- 
tracts     §184 

with  city  as  to  maximum  rates;  consideration;  use  of  streets.  ...    §  1ST 

power  of  city  to  contract  for  water  supply §187 

power  of  rapid  transit  board  to;  construction  of  subways;  change 

of  plans \ §  190 

ordinance  making,  with  heat,  light  and  power  company;  when 

void §195 

power  of  police  juries  to  make,  for  operation  of  free  roads §  201 

ordinance  granting  franchise  and  making  contract  with  heat,  etc., 

company;  void  parts  inseparable §  L';')."> 

form  of;  mechanic's  lien  law;  due  process  of  law §  298 

liberty  to;  statute  for  monthly  payment  of  employees  by  corpora- 
tions     note.   §  298 

See  Charter;  consideration;  Exclusive  Grants;  ('.rants;  Monopoly; 
Obligation  of  Contracts;  Public  Service  lommissions  Law; 
Public  Utility  Law. 

COPARTNERSHIP.     See  Partnership. 

"CORPORATE  FRANCHISE," 

corporate  franchises §  .r» 

CORPORATION  AGGREGATE, 

not  "citizen;  "right  to  litigate  in  Federal  court note,   §  '-'01 

CORPORATIONS, 

general  franchises  of 

special  franchises  of §  7 

primary  franchise  and  secondary  franchises  of §8 

"secondary  franchises"  in  streets 5   's 

most  usual  franchises ;   M 

itself  not  a  franchise   note,  §  1 1 

right  to  exist;  as  a  franchi  e   §11 

franchise  of  forming  a  corporation  is  what     note.  §11 

member  hip  in,  a    franchise §  ' ' 

corporate  name  as  franchise            5  11 

whether  it  i-  per-., ii  or  entity  distinct  from  stockholdei     

atity 

when  equity  may  ignore  doctrine  ol                  entity              note,  §11 


1032  INDEX 

CORPORATIONS— Continued : 

franchise  as  belonging  to  members  of §  1 1 

power  to  consolidate  is  franchise §  12 

what  franchises  are  embraced  generally;  distinctions  exist §  12 

"franchise"  embraces  entire  privileges  but  not  property §  12 

certain  franchises  of,  may  never  be  exercised §  12 

right  to  hold  property  in  name  of,  is  franchise §  32 

right  to  acquire  real  estate  is  franchise §  12 

franchise  is  right  to  hold  property  and  exercise  corporate  priv- 
ileges   note,  §  12 

created  to  deal  in  lands,  incidental  powers note,  §  12 

cannot  purchase  and  hold  real  estate  indefinitely note,  §  12 

franchise  as  property §§  25-29 

right  to  do  business  is  limited  by  State §  13 

right  to  be  freeman  of,  as  franchise note,  §  21 

corporate  franchises  as  "commodities" §  21 

with  banking  powers;  monopoly;  nature  of  franchise §  22 

franchise   of    members,   shareholders    or    corporators    as    prop- 
erty   §  28 

corporate  franchise  distinct  from  franchise  to  take  tolls §  30 

franchise  to   be  and  exist;  distinguished  from  other  corporate 

franchises §  30 

"corporate  powers  and  privileges"  when  not  franchises  essential 

to  corporate  existence §  31 

power  to  sue  and  be  sued  in  corporate  name  is  franchise §  32 

right  to  use  corporate  seal  is  franchise §  32 

all  functions  of,  are  in  one  sense  franchises §  32 

formation  of,  to  accomplish  fraud  or  other  illegal  act;  distinc- 
tions; that  corporation  and  corporators  have  separate  existence 

note,  §  33 
franchise  to  be,  separate  and  distinct  from  property  or  franchise 

which  corporation  may  acquire §  33 

franchise  to  be  and  franchises  subsequently  acquired §  34 

franchise  to  be  and  to  carry  on  business  distinguished;  "corporate 

franchise  or  business  " §  39 

"corporate   franchise   or   business"   under   New  York  tax  law 

means  what §  39 

franchises  of  distinct  from  those  belonging  to  corporators §  38 

essence  of,  consists  in  what note,  §  38 

as  body;  distinct  identity  from  individual  corporators.  . .  .   note,  §  38 

powers;  extent  of,  how  ascertained §  42 

resort  to  charter  necessary  to  ascertain  powers  of .  ...  §  45,  note,  §  42 
articles  of  incorporation  under  general  laws  have  effect  of  charter 

note,  §  42 
charter  and  franchise;  distinctions;  where  franchise  does  not  take 

effect  before  actual  formation  of  corporation §  43 

charters  authorizing  formation  of  corporations  upon  preliminary 

conditions;  effect  as  to  franchises §  43 


INDEX  1033 

CORPORATIONS— Continued : 

right  to  supply  city  with  water,  when  not  strictly  a  "corporate 

franchise  " §  44 

definitions,  classifications,  nature  and  distinctions §§  49-119 

change  in  nature  and  relations  of  corporations;  effect  upon  early 

definitions §  49 

defined §§  50,  60 

summary  of  expressions  used  in  defining §  51 

term  includes  what,  under  constitutions §  52 

to  what  extent  definition  of  corporation  includes  a  company,  asso- 
ciation and  joint-stock  association  or  company;  partnership.  §§  52-54 
term  as  used  in  Public  Service  Commissions  Law  of  New  York 

includes  what §  52 

"joint-stock  association"  as  used  in  Joint-Stock  Association  Law 

of  New  York  does  not  include  "corporation" §  52 

general  classification  of;  public  and  private;  political  and  private  §  55 
classified;    quasi-public   corporations;    quasi-municipal    corpora- 
tions    §  56 

divided  into  three  distinct  classes note,  §  55 

divided  into  aggregate  and  sole,  ecclesiastical  and  lay,  eleemosy- 
nary and  civil,  domestic  or  foreign §  57 

classification  of,  as  affected  by  constitutions  and  statutes §  58 

classified  under  New  York  statute note,  §  58 

classification  of  corporations  as  affected  by  Public  Service  Com- 
missions Law §  59 

distinction  between  incorporation  and  corporation §  60 

considered  as  civil  or  political  institution §  60 

as  "person" §  60 

ownership  of  stock  as  affecting  character  of  corporation  as  public 

or  private §  60 

duties,  obligations  and  powers  as  affecting  classification  or  nature 

of;  public  service  corporations §  63 

liability  of,  for  wrongful  and  negligent  acts note,  §  56 

discrimination  by note,  §  63 

subject  to  reasonable  and  just  regulations  and  rules note,  §  63 

See  Rate  Regulations;  Regulation  and  Control, 
cannot  disable  themselves  from  performance  of  public  duties  <>r 
neglect  or  refuse  to  perform  them  or  arbitrarily  discontinue 

operations note,  §§  63,  464 

as  "persons" §*  '"' '  '"_' 

members  of,  as  "  citizens" "",''-  §  '" 

as  "citizens"  for  Federal  jurisdictional  purposes;  no1  "citizens" 

under  Federal  <  institution &  ° ' 

nature  of  various,  as  public,  private,  etc §§  ,,s   ' ,'1 

power  of  Congress  to  establish;  generally J  "3 

cr  of  Congress  over  franchises  of  state  corporation 5  126 

created  by  Territory  follow  it  into  the  Union §  v-w 

ted  by  rebel  State;  power  of ,  to  sue \142 


L034  INDEX 

CORPORATIONS— Continued: 

powers  may  be  enlarged  by  legislative  amendment §  143 

required   to   be   formed   under   general   laws   by   constitutional 

amendment,  latter  not  retroactive §215 

constitutional  requirement  that  books  be  kept  for  inspection  is 

self-executing §  226 

constitutional   requirement   that   office   be   kept   in   State,   self- 
executing §  226" 

invalidity  of  statute  for  uncertainty;  undue  or  unreasonable  pref- 
erences, etc. ,  by §  230 

omissions  as  to  capital  stock,  etc.;  when  do  not  invalidate  act  of 

incorporation §  235 

dissolution  of;  sufficiency  of  title  to  statute note,  §  245 

fraudulent  elections  in;  sufficiency  of  title  to  statutes §  247 

act  of  incorporation  held  constitutional  by  state  court,  Federal 

court  will  adopt  it §  275 

dissolved  and  property  transferred  to  new  corporation;  latter  is 

subject  to  new  constitution §  286 

presumption  as  to  being  composed  of  citizens  of  State  of  crea- 
tion    note,  §291 

privileges  and  immunities  of  citizens  in  the  several  States.  .  §§  291-293 
conditions  as  to  payment  of  certain  expenses  for  privileges,  etc.  §  347 
what  corporations  are  public  utilities  under  Public  Utility  Law 

Appendix  B  (p.  941) 

CORPORATORS, 

franchise  of  distinct  from  that  of  corporation §  38 

franchise  of,  as  property §  28 

COSTS, 

attorneys'  fees  as  costs  against  insurance  company;  judgment  of 

state  court;  Federal  jurisdiction §  279 

See  Attorneys. 

COUNCIL, 

of  city,  right  of  mayor  to  preside  over  is  franchise §  21 

See  Common  Council;  Municipal  Council. 

COUNSEL.     See  Public  Service  Commissions  Law. 

COUNSELLOR, 

at  law,  right  to  be,  as  franchise §  21 

COUNTIES, 

as  quasi-public,  or  quasi-municipal  corporations §  56 

classed  as  political  corporations;  nature  of §  55 

as  public  corporations §  "1 

delegation  of  taxing  power  to;  when  excludes  levee  district §  164 

COUNTY, 

authorities  when  ferry  franchise  only  grantable  by §  195 

See  Streets. 


INDEX  1035 

COUNTY  BOARD, 

when  franchise  not  conferred  on  president  of §  21 

COUNTY  COMMISSIONERS, 

delegation  to,  of  power  to  grant  use  of  streets  for  gas  pipes §  178 

extent  of  power  to  establish  ferries §  194 

extent  of  power;  use  of  streets  by  gas,  electric  light,  etc.,  com- 
panies;  permits §  194 

power  to  cause  removal  of  poles  and  wires  to  other  side  of  street .  .    §194 
constitutional  delegation  of  power  to;  not   exclusive  as  against 

legislature §  194 

COUNTY  COMMISSIONERS'  COURT, 

delegation  of  power  to;  ferries §  178 

grant  of  ferry  franchise;  river  between  two  States §178 

COUNTY  COURTS, 

grant  to  railroad  to  use  city  streets §  178 

may  grant  ferry  franchise  to  one  or  more  ferries §  1 7s 

administrative  discretion;  refusal  or  failure  to  exercise  as  to  grant 

to  railroad  company;  court  will  not  interfere §184 

COUNTY  JUDGE, 

subdelegation  of  power  to;  subscription  to  stock  of  railroad  com- 
pany         '•  '  • ' 

COUNTY  SUPERVISORS, 

power  limited  to  regulation  of  tolls  on  toll  roads §116 

no  authority  to  grant  franchise  to  colled  tolls  on  free  public  high- 
way     §  H'i 

COUNTY  TREASURER, 

when  protected  in  making  sale  for  non-payment  of  taxes;  errone- 
ous decision  of  assessor §278 

COURT  ACTIONS.     See  Public  Utility  haw. 

COURT  OF  CHANCEIM 

appeal  to;  effect  upon  commissi re'  powers  over  toll  roads  and 

upon  order  of §200 

COURT  01    VISIT  VI  [ON, 

when  statute  unconstitutional  in  delegating  power  to;  legislative, 

judicial  and  administrative  functions   

jurisdiction  extended;  telegraph  and  railroad  companies;  rule  in 
pari  matt  ria 

I  ,  ixJRT  PROCED1  RE      See    Public  i  -    Law; 

l'ul.lic  1   tility  Law. 

O  »i  i;  I  3, 

office  nol  a  franchise  under  statute,  etc  .  at  to  appellate  juri 

Hon  ol 


1036  INDEX 

COURTS— Continued : 

Federal  Supreme  Court,  duty  of,  to  guard  chartered  property  in- 
terests     §  120 

powers  of;  what  matters  exclusively  within  legislative  discretion; 

grants  of  franchises §  136 

Federal  Supreme  Court  proceeds  with  caution  in  revising  ruling  of 

state  court  as  to  validity  of  statute §  137 

will  invalidate  ordinance  which  works  discrimination §  137 

police  power  subject  to  judicial  review §  137 

of  State;  decree  of  requiring  construction  of  railroad  lines  not  in- 
terference with  interstate  commerce §  167 

empowered  by  statute  to  direct  manner  of  service  of  notice  on 

common  carriers,  not  delegation  of  legislative  power §  169 

delegation  of  power  to §§  171-184 

when  no  jurisdiction  by  appeal  upon  questions  of  administrative 

policy §  171 

extent  of  power  to  inquire  into  acts  of  subordinate  political 

agencies,  etc §  184 

judicial  authority  and  duty  to  determine  constitutional  questions.   §  229 

settled  judicial  construction  of  statute §  259 

construction  of  statutes  by  state  courts;  how  far  respected  by 

Federal  courts §  §  272-281 

judicial  decisions  not  within  obligation  of  contract  clause §  306 

power  of;  rate  regulation;  due  process  of  law §  397 

reasonableness  of  rates;  judicial  question.  ...  §  407,  note  (p.  699),  §  416 
See  Rate  Regulation. 

Federal  questions note  (p.  699),  §  416 

injunction  against  violation  of  whole  scheme  of  government 

note  (pp.  700,  701),  §  416 

judicial  determination  of  forfeiture;  quo  warranto §  486 

reluctant  to  adjudge  forfeitures §  487 

when  duty  of  Federal  court  to  take  jurisdiction 

Appendix  C  (pp.  985,  989) 
Federal  courts  have  jurisdiction  over  questions  of  constitutional- 
ity of  statutes Appendix  C  (p.  989) 

See  Name  of;  Delegation  of  Power;  Equity;  Jurisdiction. 

CREDITORS, 

rights  as  citizens  of  foreign  States;  assets  of  private  corporation; 

its  course  of  administration  in  courts §  292 

resident  and  non-resident;  preferences;  assignment §  292 

CREDITORS'  BILL, 

privileges  and  immunities  of  citizens  in  the  several  States §  292 

CRIMINAL  LAW, 

jurisdiction  of  Federal  court;  injunction;  unconstitutional  statute 

note  (p.  700),  §416 


INDEX  1037 

CROWN, 

franchise  to  erect,  et^.,  ferry  must  be  derived  from,  in  England 

note,     §  15 
CRUISE, 

definition  of  franchise  by §  1 

D. 

DAM, 

and  lock;  right  to  exact  tolls  is  franchise §  17 

DAMAGES, 

railroad  companies  liable  for  refusal  to  exercise  franchise.  .   note,     §  97 
for  fire  caused  by  railroad  company;  statutory  limitation  of  dam- 
ages, not  retrospective §  287 

liability  of  railroad  company  to  employees;  due  process  of  law; 

equal  protection  of  laws .s §  298 

for  overflowed  lands;  Massachusetts  Mill  Act;  constitutional  law.  .    §  298 

adjusting  damage  claims;  regulation  of  railroads §  386 

See  Public  Service  Commissions  Law;  Public  Utility  Law. 

DARTMOUTH  COLLEGE  CASE, 

charter  or  franchise  as  contract §  312 

See  Colleges. 

DEATH, 

lives  lost;  investigation.     See  Public  Utility  Law;  Actions. 

DEBTS, 

alienation  of  franchise;  liability  for §  464 

deduction  of.     See  Taxation. 

DECREE, 

judicial  sales;  franchises  of  corporations §§  477,  478 

See  Judgment. 

DEFENSES, 

to  action  for  penalties;  rate  regulation §  410 

See  Public  Service  Commissions  Law;  Remedies. 

DEFINITIONS, 

of  "capital" &  425 

capital  stock }  425 

"charter" ; *  41 

"corporate  franchise;"  corporate  franchises 

of  corporation "•  ,;" 

corporations:  change  in  nature  and  relations  of;  effecl  upon  .:,rlv 

definitions _ 

corporation;  summary  of  expressions  used  in  defining  a  §51 

corporation;  to  whal  extenl  definition  of,  includes  a  company, 
ociation  and  joinl  stock  at  ociation  or  company;   partner- 
ship  •■■    H62-54 


1038  INDEX 

DEFINITIONS— Continued: 

what  corporations  are  public  utilities  under  Public  Utility  Law 

Appendix  B  (§  1,  p.  941) 

of  eleemosynary  corporation note,  §  58 

ferry  franchise note,  §  15 

of  franchise  generally,  classified §3 

of  franchise  by  Finch,  Blackstone,  Chitty,  Cruise  and  Kent §  1 

of  franchise  by  Chief  Justice  Taney §  2 

franchise  as  a  contract;  as  an  exclusive  right §  4 

franchise  as  right,  privilege  or  immunity §  3 

franchise  often  used  as  generic  term note,  §  38 

"franchises"  under  constitutions  and  statutes §9 

of  foreign  and  interstate  commerce §  367 

general  franchises  of  corporation §6 

of  immunity note,  §  9 

of  license;  license  to  operate  railroad note,  §  47 

of  monopoly ' note,  §  22 

of  private  corporations §§  61-62 

privileges  which  do  not  belong  to  citizens  of  country  generally  by 

common  right §  2 

of  public  bridge  and  as  part  of  road  or  highway note,  §  15 

"public  corporation"  meaning  of  may  be  defined  and  limited  by 

statute §  61 

public  corporations §  61 

public  franchise;  in  statute §  9 

of  quasi-public  corporations §§  61-62 

of  "public  utilities;"  Wisconsin  statute Appendix  B  (§  l,p.  941) 

of  rates  or  rate note,  §  17 

"stockholder"  includes  members  of  what  associations.  . .  .   note,  §  52 

of  street  railroad  or  railway  and  street  railway  companies.  .   note,  §  111 
See  Words  and  Phrases. 

DELEGATION  OF  POWER, 

to  cities,  towns,  etc.,  to  grant  franchise §  48 

not  delegated  to  United  States  by  Constitution  nor  prohibited  by 

it  to  the  States,  are  reserved  to  States  or  people §  120 

powers  of  Federal   Government   restricted   to  those  delegated; 

those  of  State  embrace  all  not  forbidden §  121 

delegation  of;  generally §§  147-150 

distinction  between  delegation  of  power  to  make  laws  and  discre- 
tion as  to  their  execution  or  administration;  power  to  regulate.  §  147 
grant  of  franchise  may  be  made  through  lawful  delegated  agency.  §  147 

non-delegation  of  legislative  powers §  147 

police  regulations;  generally §  149 

by  Congress §§  151-155 

to  the  President §  151 

to  Secretary  of  War;  bridges §  152 

to  Interstate  Commerce  Commission §  153 


INDEX  1039 

DELEGATION  OF  POWER— Continued: 

to  American  Railway  Association §  154 

by  State  to  board  of  agriculture §156 

to  commissioner  of  banking  and  insurance §  157 

to  commissioner  of  bridges §  1  ">v 

to  drainage  commissioners;  removal  of  railway  bridge §  159 

by  State;  enumeration  of  subordinate  bodies §§  156-170 

delegation  to  commission  of  gas  and  electricity §  160 

to  grain  and  warehouse  commission §  161 

to  inspectors  of  coal  mines §  162 

statute  delegating  power  to  certain  subordinate  agencies  of  offi- 
cers to  prescribe  form  of  standard  policy,  unconstitutional.  ..  .    §  163 
to  bureau  of  insurance,  or  to  superintendent  or  commissioner  of 

insurance §  163 

to  levee  district §  164 

to  board  of  loan  commissioners;  Territory §  165 

to  public  service  commission  of  New  York §  166 

to  railroad  commissioners §  167 

to  railroad  commissioners;  their  consent  not  necessary  to  enable 

State  to  grant  franchise  to  street  railway §  167 

to  railroad  commission;  Public  Utility  Law  of  Wisconsin §  168 

to  railroad  and  warehouse  commission;  railroads;  carriers;  in- 
crease of  capital  stock §  169 

to  state  corporation  commission;  Extent  of  power §  170 

to  and  by  courts §§  171-184 

to  courts;  generally §  l'l 

to  courts  to  grant  corporate  powers  to  private  companies  §171 

to  courts  to  establish  bridges  H  ' ' 

courts;  legislative  and  administrative  functions  cannot  be  forced 

upon  or  assumed  by M'l 

to  courts  to  establish  or  pass  upon  street  regulations 1 171 

to  courts;  duties  non-judicial,  such  as  fixing  rates  cannol    be 

forced   upon .     L 

to  courts  of  equity;  railroad  bridg  g  highways §  17'-' 

to  supreme  judicial  court;  to  determine  reasonableness  of  water 

rates ■■    I  17;; 

to  am>ellate  court  to  determine  reasonableness  of  rates  fixed  by 

i  171 
commission ■ 

to  fiscal  court;  subdelegation  to  county  judge;  subscription  to 
stock  of  railroad  company 

subdelegation  of,  by  fiscal  curt  to  county  ju  ription  to 

railroad  stock 

to  Circuit  Courts;  designation  ol  telephone  route;  charter  to  ob- 
struct highway. 

to  Federal  circuit  Courts  power  to  enforce  orders  of  fntt  rstafo 
Commerce  Commie  ion;  jurisdiction;  contract  rightsof  railroad.   §  177 

to  county  commissioners'  curt;  county  court  tuse; 

grant  ot  use  ol    '  re<  ' 


1040  INDEX 

DELEGATION  OF  POWER— Continued : 

to  county  commissioners'  court;  county  courts;  ferry  franchise; 

grant  of  use  of  street  by  railroad  or  gas  company §  178 

to  probate  courts;  use  of  streets  by  telephone  company §  179 

to  court  of  visitation;  statute  when  unconstitutional §  180 

to  dental  board;  authority  over  colleges  as  quasi -judicial §  181 

authority  of  dental  board  over  colleges  as  quasi-judicial §  181 

to  board  of  equalization;  review  of  action  of;  Federal  courts.  ...    §  182 
to  commissioners  by  courts;  construction  of  street  railroads;  ap- 
pointment by  circuit  judge  of  commissioners  of  equalization.  .    §  183 
to  what  extent  courts  may  inquire  into  acts  of  subordinate  politi- 
cal agencies,  etc §  184 

powers  of  courts  in  relation  to;  power  of,  over  municipalities, 
common  council,  commissioner  of  waterworks,  railroad  com- 
missions, and  over  other  courts,  etc.;  police  powers §  184 

to  municipal,  quasi-municipal  and  subordinate  agencies.  .  .    §§  185-203 
to  municipal  or  city  council;  street  railways;  ferries;  extent  of 

power  of  city  council §  187 

local  authorities;  power  to  "prevent"  distinguished  from  power 

to   "regulate" §187 

legislative  power  to  people;  right  to  amend  municipal  charter  as 

to  grant  of  franchises §  189 

to  board  of  rapid  transit  railroad  commissioners;  subways;  city 

ownership  and  obligations;  change  of  construction  of  plans ...    §  190 
electrical  commission;  electrical  conduits;  board  of  commissioners 

of  electrical  subways;  board  of  electrical  control §  191 

grant  of  franchises;  board  of  estimate  and  apportionment  of  New 

York;  transfer  of  power  from  another  board;  cumulating.  ...    §  192 
dock  department  no  power  to  grant  franchise;  street  railway.  .  .    §  193 
to  county  commissioners;  ferries;  bridges;  use  of  streets;  permits; 
gas  and  electricity;  street  railroads;  repaving;  removal  of  poles, 

etc §  194 

to  towns,  villages  and  counties;  water  rates;  ferries;  heat,  light 
and  power  franchises  and  contract,  when  void;  waterworks; 

hydrant  rentals §  195 

to  town  council;  use  of  streets §  196 

to  selectmen,  or  to  board  of  aldermen  of  city;  use  of  streets;  loca- 
tion and  control  of  electrical  appliances,  etc.,  conditions  as  to 

street  railway  fares §  197 

trustees  of  town;  drawbridge;  board  of  gas  trustees;  gas  rates; 

lighting  plant  ordinance  invalid §  198 

board  of  supervisors;  grant  of  turnpike  franchise;  right  to  collect 

tolls §  199 

highway  or  toll  road  commissioners;  public  lighting  franchise; 
bridges;  when  order  to  cease  taking  tolls  invalid;  delegation  to 

city  officials,  subway  construction §  200 

police  juries;  ferries,  bridges  and  roads §  201 

by  municipality §  202 


INDEX  1041 

DELEGATION  OF  POWER— Continued: 

by  ordinance  to  street  commissioner §  203 

obligation  of  contracts §313 

to  tax note,  §  417 

See  Municipalities. 

DENTAL  BOARD, 

delegation  of  power  to;  authority  over  colleges  as  quasi-municipal.   §  181 

DEPRECIATION, 

rates.     See  Public  Utility  Law. 

DIRECTORS, 

liability  of,  for  failure  to  make  reports;  statute  not  repealed  by 

amendment  as  to  time  of  filing  reports §  282 

DISCRIMINATION, 

by  corporations <_ note,     §  63 

common  carriers  cannot  discriminate §  74 

electric  light  companies  cannot  exercise §  76 

natural  gas  companies  cannot  discriminate §  83 

irrigation  companies  cannot  discriminate §«88 

railroad  companies  cannot  discriminate §  97 

as  test  whether  branch  railroad  track  is  for  public  or  private  pur- 
poses     §  103 

railroad  carriers  must  perform  service  on  equal  terms  to  all.  ...    §  106 

waterworks  company  cannot  discriminate §  118 

action  of  board  of  equalization  resulting  in  illegal;  review  of  by 

Federal  courts §182 

constitutional  provision  prohibiting,  is  self-executing §  226 

constitutional  provisions  as  to,  when  not  self-executing §  227 

invalidity  of  statute  for  uncertainty §  230 

telegraph  companies;  sufficiency  of  title  to  statute note,  §245 

taxation  of  national  banks;  state  court  decision;  review  in  fed- 
eral courts §277 

state  decision  that  there  is  none  as  against  oil  companies;  effeel 

in   Federal   courts §280 

indictment  for  unlawful,  in  transportation  of  passengers;  effeel  of 

repeal  and  re-enactmenl  of  statute §284 

against  corporations;  liability  for  damages  to  employees §  300 

by  Stat.'  againsl  foreign  corporations 

regulation  and  control 5  •'•s| 

rate  regulation §§411,414,  H5 

ition s 

Bee  Public  Service  Commi  sion    Law;  Public  Utility  Law;  1 

tion. 

DISEASES, 

right  of  sleeping-car  company  to  exclude  pel  on    with  infeotiouf       §109 

DISPENSARY, 

for  sale  of  liquors;  right  to  operate,  as  franchise &  '-'I 

66 


1042  INDEX 

DISSOLUTION, 

of  corporation  and  transfer  of  all  its  property  to  new  corporation; 

effect  of  new  constitution §  286 

of  corporations;  sufficiency  of  title  to  statute note,   §  245 

corporation  dissolved  and  property  transferred  to  new  corpora- 
tion; latter  subject  to  new  constitution •    §  286 

See  Forfeiture. 

DISTRICT  ATTORNEY.     See  Public  Utility  Law 

DISTRICT  OF  COLUMBIA, 

power  of  Congress  to  charter  savings  institution  in §  130 

telephone  system  in;  acts  of  Congress §  130 

See  Territories. 

DIVIDENDS, 

taxation §  435 

DOCK  DEPARTMENT, 

no  power  to  grant  franchises;  street  railway §  193 

DOCKS, 

sufficiency  of  title  of  statute §  245 

DOMESTIC  CORPORATIONS, 

division  into §  57 

DRAINAGE, 

ditch;  when  questions  concerning  it,  are  of  administrative  policy; 

jurisdiction  of  courts §  171 

DRAINAGE  COMMISSIONERS, 

delegation  of  power  to §  159 

requirement  by  that  railroad  bridge  be  removed,  etc.;  constitu- 
tional law note,  §  298 

DRAINAGE  COMPANIES, 

drainage;  constitutional  law;  police  power §  75 

is  private  corporation §  75 

DRAWBRIDGE, 

trustees  of  towns  may  grant  right §  198 

right  to  erect  is  a  franchise §15 

DUE  PROCESS  OF  LAW, 

police  power §  149 

validity  of  ordinance  requiring  repairs  on  railroad;  when  railroad 

relieved  from  making  repairs §  138 

when  rule  of  railroad  commission  not  violative  of  this  provision.  .    §  167 

resident  and  non-resident  mortgagees  and  creditors §  292 

generally §  §  294-295 

Mill  Act  giving  damages  for  overflowed  lands §  298 


INDEX  1043 

DUE  PROCESS  OF  LAW— Continued: 

requirement  that  railroad  company  remove  bridge,  etc..  .  .   note,  §  298 

law  specifying  form  of  contract  to  obtain  mechanic's  lien §  298 

Eight-Hour  Law;  employment  in  mines  by  corporations;  police 

power note,  §  298 

liability  of  railroad  company  for  damages  to  employees §  298 

statute  for  monthly  payment  of  employees  by  corporations,  note,  §  298 

tax  on  transfers  of  stock  by  corporations §  298 

arbitrary  decision  of  umpire  as  to  weight  of  grain;  when  law  un- 
constitutional   §  299 

law  prohibiting  insurance  in  marine  insurance  company §  299 

ordinance  as  to  transfers;  property  taken  without §  299 

requirement  as  to  payment  of  attorney's  fees  by  railroad  com- 
panies   §  299 

See  Attorneys. 

power  to  alter,  etc.,  franchise  or  charter §  320 

rate  regulation;  turnpike  companies §  397 

examination  and  license  of  locomotive  engineers;  color  blindness.  §  377 

regulation  of  water  rates §  393 

regulation  of  rates §§  406-408,  411 

E. 

EASEMENT, 

or  right  under  franchise §  33 

and  franchise  distinguished §  34 

right  to  lay  gas  pipes  in  streets  is §  47 

use  of  streets  for  gas  pipes  rather  an  easement  than  a  franchise.  .  §  36 
grant  of  right  to  erect  bridge  creates  franchise  as  distinguished 

from  license  or  easement $  18 

in  streets;  obligation  of  contract §  313 

ECCLESIASTICAL  CORPORATIONS, 

division  into §  'r>7 

EDISON  ELECTRIC  COMPANY, 

acts  of  Congress  granting  certain  lands  t<>,  in  California,  for  power  , 

plant note,  I  130 

ELECTIONS  IN  CORPORATIONS, 

fraudulent ;  sufficiency  of  title  I' >  -i amies §  217 

"ELECTIVE   l  i:  W'CHISE," 

or  freedom i  21 

"ELEC'I  I  VI-;  SU  I  HACIO," 

as  franchise § '-' 

ELECTO] 

vote  of  granting  righ!  to  use  city  street*  al  leasl  a  lioen  e  coupled 

witli  an  interest §  '7 


1044  INDEX 

ELECTORS— Continued : 

vote  by,  to  construct,  etc.,  lighting  system;  suit  by  taxpayer  to 

restrain  construction  by  village §  160 

vote  of,  as  to  granting  or  amending  franchise §  189 

approval  will  not  aid  validity  of  ordinance,  void  for  unreason- 
ableness, etc §  195 

consent  of,  as  prerequisite  to  use  of  streets §  347 

ELECTRICAL  COMMISSION, 

established  by  city;  extent  of  powers  of;  conduits  and  use  of 
space  therein §  191 

ELECTRICAL  COMPANIES, 

no  exclusive  right  in  the  earth  as  an  electrical  field §  36 

powers  of  selectmen  of  towns  as  to §  197 

See  Alienation. 

ELECTRICAL  CORPORATION, 

in  Public  Service  Commissions  Law  includes  what  corporations, 

etc §  76 

ELECTRICAL  CONDUCTORS, 

sufficiency  of  title  to  statutes §  247 

ELECTRICAL  CONDUITS.     See  Conduits;  Subways. 

ELECTRICAL  SUBWAY  COMPANY, 

when  no  power  to  refuse  space  in  conduits §  379 

ELECTRIC  CARS, 

difference  between  and  ordinary  vehicles;  police  power;  equal 

protection  of  the  laws §  149 

ELECTRICITY, 

right  to  produce  and  sell  open  to  all  persons  without  legislative 

authority §  16 

right  to  use  streets  for  transmission  of,  is  franchise  grantable  only 

by  legislative  authority §  16 

•        lines  and  posts  in  streets  for  use  of;  when  not  a  franchise §  47 

regulation  of  use  of;  police  power;  Fourteenth  Amendment §  295 

See  Commission  of  Gas  and  Electricity;  Public  Service  Commis- 
sions Law;  Streets. 

ELECTRIC  LIGHT  AND  POWER  COMPANIES.     See  Taxation. 

ELECTRIC  LIGHT  COMPANIES, 

franchise  by  city  to,  is  property  of  corporation  and  not  of  owner 

of  stock §  38 

receive  franchises  in  consideration  that  public  convenience  will  be 

served note,     §  63 

nature  of;  when  may  supply  electricity  for  heat  and  power §  76 

cannot  discriminate §  76 


INDEX  1045 

ELECTRIC  LIGHT  COMPANIES— Continued: 

when  property  of,  devoted  to  public  use §  76 

when  and  when  not  a  "manufacturing"  company §§  77,  78 

consent  of  local  authorities  to  use  of  streets,  etc §  187 

revocation  of  license  of;  obligation  of  contracts §  336 

rights  in  streets §  345 

franchise  accepted  subject  to  conditions  as  to  use  of  poles  by  other 

companies;  arbitration §  347 

ELECTRIC  LIGHTING, 

when  statute  as  to  privilege  to  supply  light,  etc..  does  not  include.  5  23 

right  of  natural  persons  to  engage  in  business  of §  76 

by  village;  certificate  of  authority  as  prerequisite;  private  lighting  §  160 

ELECTRIC  POWER  COMPANIES, 

right  of  way  through  public  lands  and  forests;  grants  by  Congress 

note,   §  130 
See  Power  Companies. 

ELECTRIC  POWER  PLANTS, 

in  California;  acts  of  Congress,  granting  lands  for note,  §  130 

ELECTRIC  RAILWAYS, 

included  in  "horse  and  steam  railways" §  -4 1 

ELECTRIC  STREET  RAILWAY.     See  Street  Railway. 

ELEEMOSYNARY  CORPORATIONS, 

classed  as  private §  55 

defined note,  §  57 

division  into §  57 

ELEVATOR  COMPANIES.     See  Storage  and  Elevator  Companies. 

EMINENT  DOMAIN, 

franchise  of §  19 

an  important  railroad  franchise 5  "' 

power  to  exercise  righl  of note,      §  L9 

franchise  rights  may  be  taken,  when  public  necessity  requires,  on 

compensation 

exercise  of  right  of,  when  nol  violation  of  obligation  of  contract.     §  26 

not  necessarily  a  corporate  righl §  :i,) 

railroads,  canals,  and  gas  companies  must  have  righl  of. 
power  of,  only  granted  for  public  use. 

franchises  which  require  exercise  of  righl  of   note, 

private  enterprises;  private  use note,     §  <>•* 

public  use;  railroad  company note,     §  63 

exercise  of  right  of ,  imposes  certain  obligations     note,     5 63 

right  exercisable  by  canal  companies  5  <-' 

ise  of,  when  justified;  electric  power  company  5  76 

leve.-.  Mich  a  public  use  thai  eminenl  domain  may  be  exerci  •  d 


1046  INDEX 

EMINENT  DOMAIN— Continued: 

when  power  of,  may  be  exercised  by  boom  company §  90 

railroad  companies  may  exercise  right  of §  97 

street  railways  no  right  of §  111 

telegraph  and  telephone  companies  may  condemn  private  prop- 
erty     §  114 

legislature  cannot  grant  away  State's  right  of  eminent  domain.  .    §  138 

legislative  grant  necessary  to  exercise  of  right §  144 

delegation  of  power  to  determine  compensation  under  right  of 

exercised  by  United  States §  155 

statutes;  "public  use"  in,  construed §  241 

statutes;  sufficiency  of  title §  247 

statutes;  strict  construction §  252 

damages;  upon  question  of  Federal  court  accepts  construction 

placed  by  state  court  upon  statute §  275 

whether  statute  of  incorporation  confers  power  of;  state  court 

decision  adopted  by  Federal  courts §  275 

exemption;  future  legislation;  obligation  of  contract §  327 

obligation  of  contracts §§  332,  333 

streets  across  railroad  tracks  in  city §  346 

See  Expropriation. 

EMPLOYEES, 

of  railroads,  etc.,  liability  to;  sufficiency  of  title  to  statute.  .  note,  §245 
police  power  over  mining  corporations;  Fourteenth  Amendment.  §  295 
of  corporations  in  mines;  Eight-Hour  Law;  police  power  of  State 

note,  §298 
statute  for  monthly  payment  of,  by  corporations;  constitutional 

law note,  §  298 

liability  of  railroad  company  to,  for  negligence;  constitutional 

law §  298 

liability  of  railroad  companies  for  damages  to;  equal  protection  of 

law §  300 

payment  of;  lien  for  wages  on  corporate  property;  reasonable  at- 

.    torneys'  fees  to  enforce  lien note,  §  300 

See  Obligation  of  Contracts;  Public  Service  Commissions  Law; 
Public  Utility  Law. 

EMPLOYERS'  LIABILITY  ACT, 

when  statute  invalid  as  including  certain  inseparable,  void  pro- 
visions    §  235 

ENGINEERS.     See  Locomotive  Engineers. 

ENGLAND, 

ferry  franchise  derived  from  crown,  in note,  §  15 

certain  franchises  in,  no  application  here §  10 

delegation  of  power  to  establish  corporations §  148 

ENGLISH  COMPANIES'  ACT, 

railroad  as  "public  companies"  under §  98 


INDEX  1047 

ENGLISH  STATUTES, 

adopted;  rule  as  to  construction  of §  269 

ENGLISH  TRAFFIC  ACT, 

as  affecting  construction  of  Interstate  Commerce  Act §  153 

ENTRY, 

upon  premises.     See  Public  Utility  Law. 

ENUMERATION  OF  FRANCHISES §§  10-21 

See  Franchises. 

EQUAL  PROTECTION  OF  LAWS, 

when  regulation  of  rates  of  stockyard  company  is  unconstitu- 
tional   §  1 10 

constitutionality  of  statute  fixing  charge  for  elevating,  storing, 

etc. ,  grain §113 

electric  cars,  differ  from  ordinary  vehicles;  police  powers §  149 

when  statute  fixing  rates  violates  provision  as  to §  100 

delegation  of  power  to  grain  and  warehouse  commission  not  un- 
constitutional    §  161 

common  carriers  not  denied,  by  control  of  state  corporation  com- 
mission over  them §  170 

judgment  for  attorneys'  fees  as  costs  against  insurance  company.  §  279 
combinations;  anti-trust  acts;  state  court  decisions;  effect  of,  in 

Federal  courts §  280 

generally §§  294-295 

liability  of  railroad  company  for  damages  to  employees §  298 

Eight-Hour  Law;  employment  in  mines  by  corporations;  police 

power note,  §  298 

requirement  that  railroad  company  remove  bridge note,  §  298 

requirement  as  to  payment  of  attorney's  fees  by  railroad  or  in- 
surance companies §  299 

instances §  300 

power  to  alter  or  amend  charter  or  franchise §  320 

license,  etc.,  tax §  356 

regulation  of  water  rates \  393 

regulation  of  rates U  406    108,  411,  416 

penalties  so  enormous  as  to  prevenl   resorl   to  courts;   Federal 

question ""','  <!>   699),  § 416 

EQUITY, 

may  ignore  doctrine  of  corporate  entity note,     §  1 1 

delegation  of  power  to  courts  of;  railroad  brii  tiigh- 

w  ays J  172 

to  teSl  righl  to  exercise  franchises;  forfeiture;  validity  of    mule,      §  230 

injunction;   gas   rates 5  392 

inquiry  and  decree  

no  adequate  remedy  a1  law:  rate  regulation       ...   note  (p.  701),  §416 


1048  INDEX 

EQUITY— Continued: 

right  of  common  carrier  to  resort  to;  validity  of  rate  regulation 

statute;  excessive  penalties note  (p.  701),  §  416 

power  to  levy  and  collect  taxes  does  not  belong  to note,  §  417 

jurisdiction;  taxation §  422 

ultra  vires  lease;  estoppel §  473 

ought  not  to  interfere  until  practical  test  of  rate  is  made 

Appendix  C  (p.  986) 
See  Injunction. 

ESTATES, 

corporate  franchises  are  vested  legal  estates §  29 

ESTOPPEL, 

title  insurance  company  not  accepting  new  constitution §  220 

equity;  ultra  vires  lease §  473 

taxation  of  franchises  at  over-valuation  is  immaterial  on  question 

of  value  for  rate  regulation Appendix  C  (pp.  986,  1000) 

EVIDENCE, 

repugnancy  of  statute  to  Constitution  must  clearly  appear §  231 

burden  of  proof  on  person  denying  constitutionality  of  statute.  .    §  231 

of  acceptance  of  charter  or  franchise §  350 

See  Presumptions, 
burden  of  proof  on  carrier  to  show  invalidity  of  state  rate  statute 

note  (p.  701),   §  416 
valuation  of  property  by  expert  witnesses;  effect  of;  reasonable- 
ness of  rates Appendix  C  (pp.  991,  999) 

See  Expert  Testimony;  Public  Service  Commissions  Law;  Public 
Utility  Law. 

EXCISE  TAX, 

on  transportation  or  transmission  companies §  427 

EXCLUSIVE  CONTRACTS, 

may  be  made  with  single  concern  by  railroad  company  as  for  use 

of  hacks §  97 

EXCLUSIVE  FRANCHISE, 

meaning  of note,     §  24 

See  Exclusive  Grants. 

EXCLUSIVE  GRANTS, 

•  franchise  as  exclusive  right §  4 

grant  of  right  to  supply  gas  is  franchise §  16 

nature  of  franchise  as §§  22-37 

light  or  heat,  what  included §  23 

meaning  of  "exclusive" note,  §  24 

test  of note,  §  24 

every  grant  of  franchise  as  exclusive  in  nature note,  §  24 

"franchise"  sometimes  used  to  mean  exclusive  right §  24 

franchise  is  jus  publicum  and  exclusive §  24 


INDEX  1049 

EXCLUSIVE  GRANTS— Continued : 

franchise  as  being  necessarily  exclusive §  24 

ferry note,     §  24 

right  to  receive  certain  proportion  of  public  funds,  not  an  ex- 
clusive privilege,  franchise,  etc note,     §  24 

right  to  furnish  water;  when  an  exclusive  privilege note,     §  24 

of  right  to  operate  street  railroad  is  property  right note,     §  26 

right  to  supply  city  with  water;  grant  by  ordinance  is  franchise.  .      §  48 
for  ferries,  bridges  and  turnpikes,  are  grants  of  public  character 

note,     §  63 

of  right  to  supply  gas  is  franchise §  82 

of  telegraph  and  telephone  rights  of  way  through  Indian  Territory.   §  130 
or  license;  when  power  to  make  and  regulate  cannot  be  delegated 

to  city  council;  ferries §  188 

of  franchises  by  city,  for  waterworks;  partial  invalidity  of  enact- 
ment  " §  235 

strict  construction  of §257 

not  regarded;  implication  as  to;  Charles  River  bridge.  ..  .   note,   §  257 

to  supply  gas;  obligation  of  contracts §  335 

State,  in  granting,  does  not  part  with  police  power §  388 

See  Construction   of   Statutes;   Exclusive   Privilege;   Exclusive 
Franchise. 
EXCLUSIVE  IMMUNITY, 

meaning  of note,     8  -4 

See  Exclusive  Grants. 

EXCLUSIVE  PRIVILEGES, 

meaning  of note,     §  -4 

See  Exclusive  Grants. 

EXECUTION, 

exemption  from;  corporation  grantee  of  municipal  waterworks; 

obligation  of  contracts §  326 

EXEMPTIONS, 

from  legislative  repeal;  obligation  of  contract 5  325 

from   execution;    corporation    grantee   of   municipal    waterworks; 

obligation  of  contract *  386 

street  paving  assessments;  consolidation S  338 

in  charter;  modification  of;  acceptance  of 

State  cannol  imparl  to  its  officers  immunity  from  responsibility 

to  Federal  authority ■  ■■  •  note  (p.  700),  §  IW 

from  taxation;  whether  transferable  ' ;'  ''■'   ,s-' 

See  Obligation  of  Contrad   .  Rate  Regulation;  Taxation. 

EXPERT  TESTIMONY, 

rat.'  regulation;  excessive  penalty      remedy  in  equity 

note  (p   701),  5  H6 

effect  of,  in  determining  value  of  property  as  ba  i    ol  re  i  onable- 

nessof  rate,         Appendix  C  (pp   991,1 


1050  INDEX 

EXPRESS  COMPANIES, 

are  "  common  carriers; "  statute §  74 

nature  of;  as  partnership;  as  public  use;  as  common  carrier;  dif- 
ferent from  railroad  companies §  79 

when  do  not  carry  on  purely  private  business §  79 

included  under  "railroad;"  public  Utility  Act §  104 

license,  etc.,  tax §  358 

additional  franchise  tax §  427 

EXPROPRIATION, 

statutes;  sufficiency  of  title §  247 

obligation  of  contracts §§  332,  333 

See  Eminent  Domain. 

EXTENSION, 

of  franchise;  obligation  of  contract §  330 


F. 

FAIRMONT  PARK, 

power  of  park  commissioners  to  grant  franchise  to  passenger  rail- 
way in note,     §  14 

FALSE  BILLING, 

by  carrier  or  shipper.     See  Public  Service  Commissions  Law; 
Public  Utility  Law. 

FARES, 

right  to,  distinguished  from  other  franchises  of  corporation.  ...      §  34 
See  Rate  Regulation. 

FEDERAL,  CONSTITUTIONAL  AND  LEGISLATIVE  POWERS, 

source  of  franchise §§  120-131 

FEDERAL  COURT.     See  Courts;  Jurisdiction. 

FEDERAL  FRANCHISE, 

telegraph  company;  effect  of  attempted  grant  of  municipal  fran- 
chise        §  48 

See  Taxation. 

FEDERAL  GOVERNMENT.     See  National  Government. 

FEES.     See  Public  Service  Commissions  Law;  Public  Utility  Law. 

FERRIES, 

franchise;  definition  of note,  §  15 

meaning  of  word note,  §  24 

right  to  keep,  is  publici  juris note,  §  15,  note,  §  63,  §  80 

nature  of  ferry  franchise;  public,  private,  quasi-public  use §  80 

right  to  maintain,  etc.,  public,  is  franchise §  15 


INDEX  1051 

FERRIES— Continued : 

franchise  consists  of  what note,  §  15 

franchise  is  privilege  to  take  tolls,  etc note,  §  15 

right  to  tolls  is  franchise §17 

franchise  is  derived  from  Crown  or  State note,  §  L5 

right  to  establish  was  royal  prerogative §122 

legislative  grant  necessary §  1  I  1 

franchise,  charter  or  prescription  necessary note.  §  15 

franchise;  prescription §  133 

no  private  person  can  establish,  and  collect  tolls  without  au- 
thority     note,  §  17 

no  franchise  required  for  private  ferry §  15 

franchise  extends  beyond  landing  places note,  §  15 

only  a  substitute  for  bridge note,  §  15 

franchise,  bridge  franchise  is  of  same  nature  as §  15 

is  not  a  railroad " note,  §  15 

as  part  of  railroad  corporation;  statute §  104 

and  railroad  franchises  may  be  granted  to  one  corporation.  .    note,  §15 

landings,  exclusive  privilege note,  §  24 

exclusive  grants  for  are  grants  of  franchises  of  public  character, 

note,  §  63 

franchise  when  not  exclusive §  24 

not  land  or  incorporeal  hereditament §  26 

franchise,  nature  of  as  property note,  §  26 

franchise  partake  of  nature  of,  though  not  strictly  real  (-state. 

note,  §  26 
right  to  maintain  when  a  mere  license  or  gratuity  and  not  a  con- 
tract   • &47 

receive  franchises  upon  consideration  of  public  service.  ..  .   note,  §  63 

franchise  to  middle  of  a  river  between  States §144 

franchise;  power  to  grant  may  be  delegated §148 

power  of  county  commissioners'  court  to  license §178 

extent  of  power  to  establish;  county  commissioners §194 

power  of  county  court  to  grant  or  refuse  ferry  franchise.  §178 

power  of  town  to  grant  franchise  for i  195 

franchise  when  county  authorities  only  can  granl •  ■■  ;  195 

refusal  of  court  to  interfere  with  grant  of  second  ferry  franchise. 

license  by  city *  l86 

when  power  cannot  be  delegated  to  municipal  council  to  license, 

mnilntc,    Mr s 

powers  of  police  juries  over ^  -__ 

strict  construction  of  grant  against  grantee.             8  255 

franchise  of;  rule  of  strict  construction  qo1  strictly  applicable 

and  bridges;  separate  grants  of  franchises;  rule  of  construction  §  258 

obligation  of  contrad       »  34|] 

additional  franchise  tax 

regulation  of  fares  and  tolls.     See  Rate  Regulation 

regulation  and  control  of.     See  Regulation  and  Control,  Taxation. 


1052  INDEX 

FINCH, 

definition  of  franchise  by §  1 

FINDINGS, 

practice;  reasonablneess  of  rates §  409 

See  Public  Utility  Law. 

FIRE  ENGINE  COMPANY, 

is  quasi-municipal  corporation §  81 

within  provisions  of  Civil  Service  Law §  81 

FIRE  INSURANCE.     See  Insurance  Companies. 

FISCAL  COURT, 

delegation  of  power  to;  subdelegation  to  county  judge;  subscrip- 
tion to  stock  of  railroad  company §  175 

FISHERY, 

right,  as  franchise §  21 

FORECLOSURE, 

sale  under,  of  railroad;  what  franchises  pass  sale §  30 

See  Mortgage, 
proceedings;  receiver  cannot  destroy  corporation's  rights  to  use 

of  streets  obtained  by  consents  of  abutting  owners §  33 

purchasers  at  sale;  reorganization;  obligation  of  contracts §  329 

FOREIGN    AND    INTERSTATE    COMMERCE.     See    Interstate 
Commerce. 

FOREIGN  ASSOCIATION, 

held  a  corporation §  52 

FOREIGN  CORPORATIONS, 

division  into §  57 

franchise  of;  generally §  13 

State  may  debar §  13 

State  may  exclude  foreign  corporations  or  impose  conditions  on 

them §  87 

certificate  of  authority  as  franchise §  13 

power  to  acquire  lands note,  §  12 

condition  that  suit  shall  not  be  removed  into  Federal  courts.  ...  §  355 

constitutional  prohibitions  as  to,  self-executing §  226 

constitutional  provisions  as  to,  when  not  self-executing §  227 

partial  invalidity  of  statute  imposing  conditions §  235 

status  of  foreign  railroad  corporation;  "act  to  incorporate,"  note,  §  244 
status  of;  "act  to  incorporate;"  title  of  act;  railroad  company 

note,  §  245 

sufficiency  of  title  to  statutes §  247 

conditions  imposed  upon;  rule  in  pari  materia §  266 

license  tax;  state  court  decisions;  Federal  question §  277 


INDEX  1053 

FOREIGN  CORPORATIONS— Continued : 

state  decision  that  they  have  no  corporate  existence  in  State, 

does  not  involve  Federal  questions §  281 

statute  as  to  situs  of  stock  for  taxation  not  repealed  by  implica- 
tion by  omission  of  from  compiled  code §  285 

granted  all  rights  and  privileges  possessed  by  it  in  State  of  in- 
corporation, does  not  grant  privileges  not  within  constitution 

of  granting  State §  286 

construction  of  Bush  Act §  286 

conditions  as  to  amount  of  capital  stock §  291 

specific  tax  upon  may  be  imposed  when  no  discrimination §  291 

actions  between  prohibited;  privileges  and  immunities  of  citizens.   §  293 
prohibited  from  suing  on  claim  to  assignee;  obligation  of  con- 
tracts      §  306 

conditions;  powyer  of  States  as  to §§  351-362 

situs  of;  interstate  comity > §  351 

See  Taxation. 

FOREIGN  STATE  OR  COUNTRY, 

statutes  derived  or  adopted  from;  construction  of §  269 

FORFEITURE, 

when  street  railway  franchises  may  be  lost  by  forfeiture §  31 

corporations  cannot  neglect  or  refuse  to  perform  public  duties 

note,  §  63 
See  Alienation. 

of  franchises;  quo  warranto;  validity  of  statutes §  230 

clause  of;  how  construed §286 

revocation  of  license;  obligation  of  contracts §  336 

legislative  power  as  to §  185 

judicial  determination  of;  quo  warranto;  state  officials;  ipso  facto 

forfeiture §  186 

courts   reluctant  to   adjudge   forfeitures   and    will    proceed    with 

caution §487 

abuse,  misuser  or  nonuser  of  corporate  powers §  188 

nature  and  extent  of  misuser  or  nonuser  justifying  forfeiture.  ...  \   189 

when  franchise  will  be  forfeited;  instances \   190 

when  franchise  will  not  be  forfeited;  instances \  I'M 

See  Dissolution. 

FOURTEENTH  AMEN  I  >M  KNT, 

generally 8§  294    295 

.Iocs  not  deprive  State  of  police,  power 

power  to  alter  or  amend  franchise  or  charter.  §  320 

FRANCHISES, 

rights  may  be  taken  for  public  nece    ity  on  comp  rv  ation         ...     5  26 

valuation  of;  gas  rates;  reasonableness         

expiring  at  different  timee ;  obligation  of  contracl    


1054  INDEX 

FRANCHISES— Continued : 

additional  franchise  tax §  427 

See  Definitions. 

FRANCHISES;  ENUMERATION  OF §§  10-21 

appointment §  21 

attorney  or  counsellor §  21 

banking §  18 

bridges §  15 

canals §  15 

"commodities" §  21 

common  carriers;  railroads;  street  railroads §  14 

corporations;  what  franchises  are  embraced  generally §  12 

corporations  generally;  members'  rights;  membership;  corporate 

name;  municipal  corporations;  "public  franchise" §  11 

corporations;  foreign  corporations;  generally §  13 

counsellor  at  law  or  attorney §  21 

"elective  franchise"  or  freedom §  21 

"elective  suffrage" §  21 

electricity;  right  to  supply §  16 

eminent  domain §  19 

exemption  or  immunity  from  jury  duty §  20 

exemption  or  immunity  from  working  on  public  roads §  20 

exemption  or  immunity  from  taxation §  20 

fares;  right  to §  17 

ferries §  15 

fishery §  21 

foreign  corporations;  generally §  13 

gas;  right  to  supply §16 

insurance §  18 

liquor  license §  21 

membership  in  corporation §11 

municipal  corporations §11 

name  of  corporation §11 

"news  contract" §  21 

patent  right §  21 

political  rights;  "elective  suffrage;"  "elective  franchise"  or  free- 
dom    §  21 

professor's  appointment §  21 

"public  franchise" §11 

public  market §  21 

public  office;  attorney  or  counsellor;  right  to  preside;  appointment 

of  professors '  §  21 

railroads §  14 

rates;  right  to §  17 

right  to  preside §  21 

right  to  supply  gas,  water,  or  electricity §  16 

right  to  tolls,  fares,  rates  or  wharfage §  17 


IXDEX  1055 

FRANCHISES;  ENUMERATION  OF— Continued: 

roadways §  1 5 

street  railroads §  1 4 

tolls;  right  to §  17 

trade-mark §  21 

water;  right  to  supply §10 

wharfage;  right  to §  1 7 

See  Congress;  Delegation  of  Tower;  ('.rants;  rowers. 

FRANCHISES,  NATURE  OF.  AND  DISTINCTIONS §§  22-48 

granted  for  public  not  for  private  purposes §14 

as  monopoly  or  exclusive  in  nature §§  22-24 

sometimes  means  "exclusive  right" §24 

as  property §§-•">  29 

as  personal  property §  27 

corporate  franchises  are  legal  estates  not  mere  naked  powers.  ...  §  29 
franchises   of  members,   shareholders,   or    corporators    as   prop- 
erty   §  28 

franchises   essential   and   not   essential   to   corporate   existence; 

"essentially  corporate  franchises" §30 

"corporate  powers  or  privileges"  not  franchises  essential  to  cor- 
porate  existence §  31 

franchises  and  pow-ers;  to  what  extent  distinguished §  32 

franchise  to  be  separate  and  distinct  from  property  or  franchise 

which  corporation  may  acquire §§  33  35 

franchise  to  be  and  franchises  subsequently  acquired §  34 

franchise  and  easement  distinguished §34 

"personal  franchise"  distinguished  from  property  franchise §  35 

franchise  differs  from  grant  of  land;  easement;  freehold 

general  creative  franchise  and  special  franchise  distinguished.  .  .  §  37 
franchises  belonging  to  corporators  and  those  of  corporation  dis- 
tinguished    §38 

franchise  of  itself  alone  is  of  no  value note,  §  39 

franchise  only  of  value  in  connection  with  its  use note,  §  39 

franchise  to  be  and  to  carry  on  business  distinguished;  "corporate 

franchise  or  business" §  39 

"corporate  franchise"  distinct  from  franchises  which  corporation 

may  exercise §  39 

franchise  distinguished  from  means  employi  'I  in  exercising  it.  ..  .  §  40 
charter  and  franchises;  to  whal  extenl  distinguished;  how  ex1 

of  powers  is  ascertained 8$  "    ,M 

charter  and  franchise;  distinctions;  where  franchise  does  ool  take 

effect  before  actual  formation  of  corpora  t  ion            §43 

when  right  to  supply  water,  nol  strictly  a  "corporate  franchise"  §  ll 
charter  and  franchise;  distinctions;  charter  rights  and  privileges 
derived  through  organization;  "additional  franchise  or  privi- 
lege "  acquin  d  after  incorporation   HI 

charter  and  franchise;  distinction  exists  5  '•' 


1056  INDEX 

FRANCHISES,  NATURE  OF,  AND  DISTINCTIONS— Continued: 
charter  and  franchise;   "charter"  as  synonymous  with  "fran- 
chise"       §  46 

whether  certain  grants  constitute  a  license,  privilege,  permission, 

gratuity  or  contract;  and  not  a  franchise §§  47,  48 

"secondary  franchises"  in  streets §  48 

as  affecting  power  to  alienate §  462 

are  property Appendix  C  (p.  986) 

distinct.     See  Person. 

FRANCHISES,  SOURCE  OF, 

Federal,  constitutional  and  legislative  powers §§  120-131 

state,  constitutional  and  legislative  powers §§  132-146 

FRAUD, 

corporation  formed  to  accomplish;  no  excuse  that  corporation 

and  corporators  have  separate  existence note,     §  38 

elections  in  corporations;  sufficiency  of  title  to  statute §  247 

FREEHOLD, 

franchise  differs  from §  36 

FREEMAN, 

of  corporation  as  franchise note,     §  21 

FREIGHT, 

tracing  lost;  regulation  of  commerce §  378 

taxation  of;  regulation  of  rates §  404 

FREIGHT  CARS, 

delegation  of  power  to  American  Railway  Association;  regulation 

of  height  of  draw-bars,  etc §  154 

FREIGHT  COMPANIES, 

are  " common  carriers ";  statute §  74 

within  Public  Utility  Act §  104 

FREIGHT-LINE  COMPANIES, 

are  "  common  carriers  ";   statutes §  74 

within  Public  Utility  Act §  104 


G. 

GAS, 

right  to  dig  up  streets  to  supply,  is  franchise §  16 

right  to  lay  pipes  in  streets,  is  easement  rather  than  franchise.  .  .      §  47 
individual  may  manufacture  and  sell  without  sovereign   grant, 

note,     §  16 

statute  as  to,  when  does  not  include  electric  lighting §  23 

certificate  of  authority  as  prerequisite  to  enable  village  to  supply 

for  private  lighting §  160 


INDEX  1057 

GAS — Continued : 

rates;  rule  governing  validity  of  statutes  fixing  rates 

Appendix  C  (pp.  985,  986) 
See  Rate  Regulation. 

increased  cost  of;  basis  of  rate  regulation Appendix  C  (p.  1001) 

See  Commission  of  Gas  and  Electricity. 

GAS  AND  ELECTRIC  COMPANY, 

right  to  maintain  certain  location  in  street;  prescription §  133 

GAS  COMMISSION, 

order  of  void  when  statute  appointing  is  unconstitutional 

Appendix  C  (p.  990) 
of  New  York;  statute  unconstitutional Appendix  C  (p.  990) 

GAS  COMPANIES, 

consent  of  town  authorities  to  use  streets;  when  franchise §  48 

receive  franchises  upon  consideration  that  public  convenience  will 

be  served note,  §  63 

rate  may  be  fixed  at  less  than  specified  in  statute,  for  gas §  82 

See  Kate  Regulation. 

exclusive  right  to  supply  gas  is  grant  of  franchise §  82 

See  Exclusive  Grants. 

of  public  nature;  public  service  corporations §  82 

right  to  use  streets;  county  commissioners'  authority §  ITS 

grant  of  right  in  streets  to,  by  municipality §185 

consent  of  local  authorities  to  use  of  streets,  etc. ;  statute §  187 

consolidation  and  merger;  sufficiency  of  title  of  statute §245 

strict  construction  of  granl  against  grantee §  255 

right  to  use  city  streets;  obligation  of  contracts §  313 

amendment  of  charter;  obligation  of  contracts §  325 

obligation  of,  to  do  certain  things,  even  though  evidence  may  in 

some  matters  impair  obligation  of  contracl §  336 

rights  in  streets §  344 

gas  franchise;  license,  etc.,  tax §  361 

regulation  of;  police  power 

basis  of  rates;  method  of  valuation 

regulation  of  rates;  method  of  valuation §  392 

See  Alienation;  Eminenl  Domain;  Natural  Gas  Companies;  R 
Regulation;  Taxation. 

GAS  LIGHT  COMPANIES, 

right  of  to  lay  conductors,  etc.,  in  streel  is  property note,     §•_'<; 

GAS  PRESSURE, 

requirement;  constitutional  law Appendix  C  (p  987) 

GENEB  M.   ASSEMBLY.     See  Pow<  i 

GENEB  \l.  FB  WMIISKS     See  Definitions. 

67 


1058  INDEX 

GENERAL  LAWS, 

reservation  of  power  to  alter,  etc;  obligation  of  contracts §  324 

See  Statutes. 

GOOD  WILL, 

as  element  of  value;  gas  rates;  regulation §  393 

GOVERNMENT, 

department  of §§  120>   135 

aid  to  railroads  and  telegraph  companies §  129 

GOVERNMENTAL  POWERS.     See  Powers. 

GOVERNOR, 

appointment  of  commission  by §  160 

GRAIN, 

arbitrary  decision  of  umpire  as  to  weight  of;  due  process  of  law    §  299 
regulation  of  rates  for  elevating,  storing,  etc.,  public  warehouses     §  391 

GRAIN  AND  WAREHOUSE  COMMISSIONS, 

delegation  of  power  to §  161 

GRAIN  ELEVATORS, 

and  warehouses;  police  power  of  State;  Fourteenth  Amendment  §  295 

GRAIN  WAREHOUSES, 

regulation  of  police  power  of  State;  Fourteenth  Amendment.  ...    §  295 

"GRANTED  LANDS," 

in  Land  Grant  Acts  in  aid  of  railroads  construed §  241 

GRANTS, 

of  franchise  strictly  construed §  23 

whether  license,  privilege,  permission,  gratuity  or  contract  and 

not  a  franchise;  distinctions §  47 

may  be  a  mere  gratuity  conferring  only  a  privilege §  47 

immaterial  whether  made  through  legislative  agency  or  by  legis- 
lature    §  48 

implied  condition  in,  to  corporations note,  §  63 

power  to  make  formerly  vested  in  crown  but  on  severance  of 

colonies  vested  in  people §  122 

or   source   of   franchises;    governmental    or   legislative   powers; 

generally §122 

power  of  Congress  to  establish  corporations;  generally §  123 

power  of  Congress  to  grant  additional  franchises §  124 

power  of  Congress  over  franchises  of  state  corporation;  interstate 

commerce;  generally §  125 

by  Congress;  incorporation  of  banks §  126 

by  Congress;  bridge  corporation;  bridges;  commerce §  127 

by  Congress;  railroads §  127 

by  Congress;  bridges §  127 


IXDEX  1059 

GRANTS— Continued : 

of  railroad  franchises;  state  railroad;  Federal  franchises;  merger.  §  129 
powers  of  Congress  to  charter  savings  institutions  in  District  of 

Columbia §  130 

source  of  franchise  or  charter;  legislative  grant  necessary.  .    §§  132-133 
source  of  franchise;  state,  constitutional  and  legislative  powers 

§§  132-146 

test  of  legislative  power  to  grant  franchises §  134 

corporation  created  by  Territory  follows  it  into  Union §  139 

legislative  action  when  necessary  to  give  effect  to  constitutional 

grant §  140 

of  rights  to  telegraph  and  telephone  companies  by  Constitution; 

when  not  self-operating §  140 

refusal  of  franchise  by  subordinate  body §  140 

legislative  power  to  grant  implies  power  to  refuse  franchises.  ...  §  140 
of  franchises;  consent  of  subordinate  body  unnecessary  to  exer- 
cise of  power  by  legislature §  141 

of  additional  franchises;  amendments;  legislative  power §  143 

legislative  grant  necessary;  roads,  highways,  bridges,  ferries;  gen- 
erally   §  144 

ferry  franchise  to  middle  of  river  between  two  States §  144 

of  bridge  franchise,  by  State;  power  of  Congress  to  interpose.  ...  §  145 

of  franchises  may  be  made  through  lawful  delegated  agencies.  ...  §  147 

See  Powers,  Delegation  of. 
of  right  to  mine;  delegation  of  power  to  board  of  agriculture  to 

grant  or  refuse §  156 

by  county  commissioners  of  right  to  lay  gas  pipes  in  streets.  ...  §  178 
of  ferry  franchise;   river  between  two  counties;  jurisdiction  of 

courts §  178 

of  ferry  franchise  or  license  by  courts §  178 

to  street  railway  by  ordinance;  when  court  cannot  restrain §  184 

refusal  of  court  to  make  to  railroad;  administrative  discretion; 

Circuit  Court  will  not  interfere §  184 

of  franchise  by  State;  to  what  extent  municipal  consent  neces- 
sary   §  187 

of  franchise  by  State,  to  what  extent  subject  to  municipal  consent 

for  exercise §  187 

may  be  made  directly  by  State  or  through  subordinate  agencies.  §  187 

to  railroads;  delegation  of  power  to  cities;  restrictions  imposed.  .  §  187 
right  to  amend  municipal  charter  as  to  grant  of  franchise  not  a 

delegation  of  legislative  power  to  people §189 

or  refusal  of  use  of  electrical  conduits §  191 

by  board  of  estimate  and  apportionment ;  transfer  of  power  from 

another  board;  cumulative  voting §  192 

lighting  plant  ordinance  of  town  trustees  invalid,  obligation  of 

town  ceases §  198 

of  town;  when  may  be  by  resolution §  198 

right  to  construct  drawbridge §  198 


10(30  INDEX 

GRANTS— Continued: 

to  turnpike  company  by  board  of  supervisors;  effect  of §  199 

of  lighting  franchise  by  highway  commissioners §  200 

police  juries;  ferries,  bridges  and  roads §  201 

constitutional  requirement  that  bids  be  received  is  self-executing.   §  226 

of  franchises;  construction  against  grantee §§  254-256 

separate,  of  franchise;  rule  of  construction §  258 

separate  grants  of  franchises,  construction  of §  258 

permission  granted   street  railway  companies  to  occupy  other 

streets,  not  a  new  franchise §  286 

as  gratuity  confers,  not  chartered  rights §  306 

implied  reservation  of  right  to  modify §  323 

modifications  of,  new  franchises,  additional  powers,  etc.;  accept- 
ance  of §§  348-350 

implied  acceptance;  presumption;  evidence §  350 

in  aid  of  railroad  companies.    See  Railroad  Companies. 
See  Condition  Precedent;  Delegation  of  Powers;  Exclusive  Grants; 
Land  Grants;  Municipality;  Powers;  Statutes. 

GROSS  RECEIPTS.     See  Taxation. 

GUARANTY  OR  SECURITY  COMPANY, 

franchise  tax §  437 

H. 

HABEAS  CORPUS, 

refusal  to  discharge  Attorney  General  when  committed  for  con- 
tempt; refusal  to  comply  with  order  enjoining  enforcement  of 
rate  regulation  statute note  (p.  701),  §  416 

HARBOR  COMPANIES, 

receive  franchises  on  consideration  of  public  service note,     §  63 

HAWAII, 

telephone  system  in;  act  of  Congress note,  §  130 

HEAT, 

exclusive  privilege  to  supply;  construction  of  statute §  23 

HEATING  CARS, 

regulation  and  control;  railroads §  385 

HEATING  COMPANIES, 

nature  of,  as  corporations,  etc §  76 

when  "manufacturing;"  when  not §§  77,  78 

within  "Public  Utility"  Law Appendix  B  (§  1,  p.  941) 

See  Heat,  Light  and  Power  Companies. 

HEATING  CORPORATION, 

not  a  public  or  quasi-public  corporation §  85 


INDEX  1061 

HEAT,  LIGHT  AND  POWER  COMPANIES, 

ordinance  granting  franchise  and  making  contract  with;  when 

void §  195 

ordinance  granting  franchise  and  making  contract  with;   void      • 

parts  inseparable §  235 

HEREDITAMENTS, 

franchises  as §  25 

right  of  sharehold3rs  in  railroad  an  incorporeal  hereditament..  .      §  28 

HEWITT  ACT, 

banks;  obligation  of  contract §  339 

HIGHWAY  COMMISSIONERS, 

delegation  of  power  to;  grant  of  lighting  franchise §  200 

powers  as  to  toll  roads ; §  200 

HIGHWAYS, 

public  bridge  as  part  of note,     §  15 

no  private  person  can  establish,  and  charge  tolls  without  author- 
ity    note,     §  17 

turnpike  companies  as note,     §  63 

railroads  as  public  highways §  107 

county  supervisors  no  authority  to  grant  franchise  to  collect  tolls 

on  free §  116 

turnpike  road  as §  117 

railroad  bridges  crossing;  delegation  of  power  to  courts  of  equity.   §  172 
when  Circuit  Court  of  city  no  power  to  grant  charter  to  obstruct   §  170 

right  to  lake  tolls  on  conferred  by  board  of  supervisors §  199 

or  roads;  powers  of  police  juries  over.  . . , §  201 

See  Streets. 

"HORSE  AND  STEAM  RAILROADS," 

embrace  electric  railways §  241 

HOSPITAL  CORPORATION, 

when  a  public,  when  a  private  corporation §  86 

HUDSON  RIVER, 

no  exclusive  righl  of  fishery  in §  21 

I. 

"IMMUNITIES," 

in  constitution 59 

defined.  .    note,       59 

Alienation;  Exclusive  Immunity;  Exemptions;  Taxation. 

INCORPOR  mON, 

distinction  between,  and  corporation 5  60 

sufficiency  of  title  to  statutes  §  2 17 

See  ( lorporal  ii 


1062  INDEX 

INCORPOREAL  HEREDITAMENT, 

when  right  to  use  streets  under  contract  with  city  is §  14 

franchises  classed  as §  26 

See  Hereditament. 

"INDEMNITY  LANDS," 

term   construed §  241 

INDIAN  TERRITORY.     See  Territories. 

INDICTMENT, 

for  unlawful  discrimination  in  transportation  of  passengers;  effect 

of  repeal  and  re-enactment  of  statute §  284 

INJUNCTION, 

suit  to  raise  question  of  property;  right  to,  of  street  railway;  ex- 
clusive right  to  operate,  etc.,  is  property  entitling  company  to 

suit note,     §  26 

suit  against  bridge;  power  of  Congress  to  declare  it  a  lawful 

structure §  128 

when  taxpayer  may  sue  to  restrain  construction,  etc.,  of  lighting 

system  by  village §  160 

when  court  cannot  restrain  grant  by  ordinance  to  street  railway,  §  184 
against  operating  ferry,  and  from  interference  or  competition.  ...  §  186 
police  juries'  right  to  restrain  operation  of  ferry  on  bridge  near  toll 

bridge §  201 

gas  rates §  392 

suit  by  stockholders note  (p.  699),   §  416 

confiscatory  rates note  (p.  699),  §  416 

criminal  case  or  proceedings;  jurisdiction  of  Federal  courts 

note  (p.  700),  §416 
to  prevent  state  officer  from  enforcing  unconstitutional  statute 

note  (p.  700),  §416 

State  not  restrained note  (p.  700),  §  416 

against  state  court  violative  of  whole  scheme  of  government 

note  (pp.  700,701),  §416 
See  Equity. 

INJURY, 

to  persons  or  property;  protection  against;  regulation  and  control.   §  382 

INSANE  PERSONS, 

may  be  excluded  by  sleeping-car  companies §  109 

INSOLVENCY, 

and  winding  up  of  corporation;  equity;  statutes  valid §  230 

of  corporation;  rights  of  creditors  who  are  citizens  of  other  States; 

preferences §  292 

assignment  of  franchises  of  insolvent  or  bankrupt  corporation; 

what  passes §  475 


INDEX  10G3 

INSPECTION, 

and  visitation  does  not  make  private  corporation  a  public  one.  .      §  62 
of  oil;  interstate  commerce §  404 

INSPECTION  LAW, 

police  power;  regulation  of  commerce;  transportation  of  cattle 

§§372,373 

INSPECTORS, 

board  of,  power  to  appoint  is  franchise §  21 

INSPECTORS  OF  COAL  MINES, 

delegation  of  power  to §  162 

INSURANCE, 

business  as  franchise §  18 

delegation  of  power  to  commissioner  of §  157 

duties  in  matters  of,  may  be  devolved  upon  Secretary  of  State.  .  §  157 
delegation  of  power  to  bureau  of,  superintendent  or  commis- 
sioner of  insurance §  163 

statute  allowing  certain  subordinate  agencies  to  prescribe  form 

of  standard  policy  unconstitutional §  163 

State  may  prescribe  form  of  standard  policy §  163 

sufficiency  of  title  of  statute note,  §  245 

INSURANCE  COMPANIES, 

how   classed §  55 

stock  ownership  as  affecting  character  of  corporation §  62 

"business  of  public  character §  87 

business  of,  is  not  commerce §  87 

contract  of  insurance  not  an  instrumentality  of  commerce §  s" 

not  "citizens"  within  protection  of  Federal  Constitution §  87 

false  representations  as  to  capital  stock,  etc;  strict  construction 

tatuti         §  -"'- 

statute  authorizing  organization  of  mutual  companies;  implied  re- 
peal of  inconsistent  acts §284 

law   prohibiting  insurance  in  marine  insurance  companies;  due 

process  of  law i!  299 

judgmenl  for  atton                  as  costs  against;  Federal  jurisdic- 
tion  ..  .' §279 

requirement  that  attorney's  fees  be  paid  ae  costs;  equal  protection 

of  law §§299,300 

tutes  prohibiting  agreements  among  regulating                com- 
missions and  transaction  of  intrastate  lire  business §300 

procuring  insurance  for  n  sidenl   from  company  not  complying 

with  State's  conditions;  pen;. I  code  §  354 

foreign  mutual  companies  not  authorized  to  do  business  in  State; 

collection  of  assessment  5  354 

requiremenl  thai  lite  companii  es  in  certain  time §  354 

requirement  that  returns  be  made §354 


1064  INDEX 

INSURANCE  COMPANIES— Continued: 

condition  that  fire  insurance  company  shall  not  remove  suit  into 

Federal  court §  355 

license,  privilege,  etc.,  tax §  357 

See  Obligation  of  Contracts;  Taxation. 

INTEREST, 

rate  of;  banks;  obligation  of  contracts §  339 

INTERPRETATION.     See  Construction  and  Interpretation  of  Con- 
stitutions; Construction  and  Interpretation  of  Statutes. 

INTERSTATE  COMITY.     See  Comity 

INTERSTATE  COMMERCE, 

regulation  of  pressure  of  natural  gas  not  an  interference  with.  ...      §  83 
construction  of  boom  and  works  in  navigable  river,  when  not  a 

burden  on §  90 

when  railroad  carrier's  business  is §  10G 

States  cannot  exclude  all  commercial  intercourse  by  telegraph  be- 
tween States §  120 

power  of  Congress  over  franchises  of  state  corporation;  generally,  §  125 

powers  of  Congress  over  bridges §§  127,  128 

bridge  as  obstruction  to;  thereafter  declared  lawful  structure  by 

Congress §  128 

power  of  Congress  to  grant  franchises  to  railroads §  129 

power  of  Congress  over  Territories;  telegraph,  telephone  and  rail- 
road companies §  130 

police  powers  of  States  not  affected  by §  131 

ferry  franchise  to  middle  of  river  between  two  States §  144 

bridge    corporation;    bridges;    navigable   waters   wholly   within 

State §  145 

extent  of  conflict  of  police  powers  with §  149 

not  interfered  with  by  decree  of  state  court  requiring  construction 

of  railroad  lines,  etc §  167 

order  of  state  corporation  commission  as  to  delivery  of  cars  when 

a  burden  on §  170 

telegraph,  telephone  or  long  distance  telephone  line;  conformity 

to  state  statute  as  to  use  of  streets §  187 

Federal  courts  not  bound  to  follow  state  court  decision  as  to  cor- 
porations created  by  Congress  for  purposes  of §  276 

foreign  corporations;  Bush  Act;  construction §  286 

foreign  corporations;  what  is  carrying  on  business §  354 

license,  etc.,  tax §§  356,  358 

police  power §  366 

foreign  and;  definition  of;  power  to  regulate §  367 

power  of  States  where  Congress  has  not  acted §§  367,  368 

state  control  of  business  within  jurisdiction §  369 

See  Rate  Regulation;  Regulation  and  Control;  Taxation. 


INDEX  1065 

INTERSTATE  COMMERCE  ACTS, 

meaning  of  ''rate"  in note,  §  17 

object  of  enactments §  153 

rule  in  pari  materia,  when  inapplicable §  267 

object  of §  403 

INTERSTATE  COMMERCE  COMMISSION, 

is  a  body  corporate,  with  legal  capacity  to  be  plaintiff  in  Federal 

court §  153 

delegation  of  power  to §  156 

jurisdiction  and  powers  of §  403 

not  granted  legislative  powers §  153 

power  to  promulgate  decrees §  153 

Federal  Circuit  Courts'  powers  to  enforce  orders  of;  extent  of 

power §  177 

process  of  Federal  Circuit  Courts  to  aid  inquiries  before §  177 

INTERURBAN  RAILROADS.     See  Street  Railway  Companies. 

INTERURBAN  RAILWAYS, 

included  as  "railroad;"  Public  Utility  Act §104 

INTOXICATING  LIQUORS, 

right  of  city  to  license  sale,  as  franchise §  21 

IRRIGATION  COMPANIES, 

nature  of.  as  private  or  quasi-public  corporations 5  SS 

obligated  to  perform  their  public  duties §  88 

obligation  to  furnish  services  at  reasonable  rates §88 

right  of,  to  fix  rates §88 

cannot  by  contract  limit  liability  to  public §  88 

cannol  discriminate §88 

territorial  laws  as  to;  when  not  invalid §  \'M) 

vested  rights §  306 

See  Alienation. 

IRRIGATION  DISTRICTS, 

public  corporations  §88 

not  municipal  corporations §  ss 

may  exist  undi                  ion  of  local  body §148 


J. 

JOINT-STOCK  ASSOC!  mONS, 

included   in   "corporation"  under  Public  Service  Commissions 

1  of  New  Yorl 5  52 

not   include  a  corporation   under  .loir                          tion 
Law  of  1  §  52 

when  included  under  "electrical  corporation,"  in  §76 

included  in  "gas  corporation;  


1066  INDEX 

JOINT-STOCK  ASSOCIATIONS— Continued : 

when  included  under  "railroad  corporation;"  statute §  104 

additional  franchise  tax §  427 

JOINT-STOCK  COMPANIES, 

included  in  term  "corporations"  under  constitutions §  52 

as  partnership §§  52,  53 

when  shareholders  are  partners note,     §  52 

when  and  when  not  taxable  as  a  corporation §  52 

capital  stock  and  shares  in  represent  what  property note,  §  425 

JUDGMENT, 

of  county  court  in  granting  or  refusing  ferry  franchise §  178 

of  board  of  equalization  valid  until  set  aside  by  direct  proceeding.   §  182 
for  attorney's  fee  as  costs  against  insurance  company;  Federal 

jurisdiction §  279 

See  Decree. 

JUDICIAL  POWERS.     See  Names  of  Courts;  Powers. 

JUDICIAL  QUESTIONS.     See  Courts. 

JUDICIAL  SALES,  * 

of  franchises,  etc.;  what  passes §§  477,  478 

effect  of,  as  to  exemptions  from  taxation §  480 

JURISDICTION, 

corporations  as  "citizens"  for  Federal  jurisdictional  purposes.  .  §  67 

limited  partnership  as  "citizen"  so  as  to  give §  53 

Federal  question;  reasonableness  of  rules  of  railroad  commission,  §  167 

when  none  in  courts  upon  questions  of  administrative  policy.  ...  §  171 

of  appellate  courts;  reasonableness  of  rates §  174 

of  Federal  Circuit  Courts;  railroad's  contract  rights  not  shown; 

bill  dismissed §  177 

of  courts  as  to  grants  of  ferry  franchise  where  river  between  two 

counties §  178 

of  Federal  courts  over  action  of  taxing  bodies  or  state  agencies.  .  §  182 
of  court  of  visitation;  telegraph  and  railroad  companies;  rule  in 

pari  materia 8  265 

of  Federal  courts  over  state  court  decisions §  276 

of  courts;  State's  own  policy  may  determine §  293 

foreign  corporations;  filing  certificate;  citizenship note,  §  353 

equity;  injunction;  gas  rates §  392 

of  Interstate  Commerce  Commission §  403 

when  Federal  court  will  take note  (p.  698),  §  416 

commitment  for  contempt,  when  unlawful note  (p.  699),  §  416 

Federal  questions note  (p.  699),  §  416 

when  exclusive;  Federal  court;  validity  of  state  statute 

note  (p.  700),  §  416 
of  Federal  court  in  criminal  case  or  proceeding;  injunction;  un- 
constitutional statute note   (p.  700),  §  416 


index  1067 

JURISDICTION— Continued  : 

courts  should  at  all  times  be  open  to  protect  interests  of  railroad 

companies  equally  with  others note  (p.  701),   §  416 

of  Federal  court;  not  a  question  of  discretion  or  comity 

Appendix  C  (p.  985) 
when  it  is  duty  of  Federal  court  to  take.  .Appendix  C  (pp.  985,989) 
See  Equity. 
JURY  DUTY, 

exemption  or  immunity  from,  as  franchise §  20 

K. 

KINDS  OF  CORPORATIONS "  §§  68_119 

See  Names  of. 

L. 

LAND, 

franchise  differs  from  grant  of  land §  36 

franchise  is  not  itself  an  interest  in §34 

See  Real  Estate. 

LAND  GRANT  ACTS, 

in  aid  of  railroads;  "granted  lands"  construed §241 

LAND  GRANTS, 

in  aid  of  railroads s  129 

See  Railroad  Companies. 

"LANDING," 

when  synonymous  with  "levee" §  89 

LAW, 

right  to  practice  as  franchise;  Fourteenth  Amendment     .      note,     §  *J1 
when  no  adequate  remedy;  rate  regulation note  (p.  701),  §  I  Hi 

"LAWS," 

what  are;  obligation  of  contracts §  305 

LAY  CORPOE  mONS, 

division  into 5  r,y 

LEASE, 

power  (,,  make  and  take §*  I7j.  17:; 

See  Lessee;   Lessor. 

LEGISLATIVE      See    Congress;    Legislature;    Municipality;    <>nli- 
nance;  State;  Statute. 

LEGIS1  VMYi;  row  ERS 

ot  Federal  Government;  source  of  franchise   (§120  L31 

I 


1068  INDEX 

LEGISLATURE, 

power  to  grant  franchise  limited  in  this  that  consideration  must 

be  based  upon  public  consideration §14 

grant  from  necessary  to  ferry  franchise note,     §  15 

grant  of,  when  not  necessary;  gas  and  electricity §  16 

See  Charter;  Powers;  State;  Statute. 

LESSEES, 

of  toll  bridges  or  roads;  powers  of  police  juries §  201 

subject  to  rate  regulation §  405 

of  corporation;  liability  for  torts  and  debts  of §  464 

See  Alienation. 

LESSOR, 

corporations;  liability  for  torts  and  debts  of §  464 

See  Alienation. 

LEVEE, 

a  public  use §  89 

when  term  synonymous  with  "landing" §  89 

See  Levee  Districts. 

LEVEE  BOARDS, 

whether  public  or  private  corporations §  89 

LEVEE  DISTRICTS, 

whether  public  or  private  corporations §  89 

when  not  corporations  but  state  functionaries §  89 

when  not  a  municipality §  89 

authority  to  sue,  etc §  89 

power  to  levy  tax §  89 

when  a  state  local  tax  or  assessment  district §  89 

delegation  of  taxing  power  to  levee  district;  when  excluded §  164 

LICENSE, 

whether  certain  grants  are  a,  or  a  franchise §  47 

right  to  liquor  license  as  franchise §  21 

by  city  to  use  streets  may  become  a  contract  not  revocable.  ...  §  47 

as  means  of  regulation  of  business  distinguished  from  franchise.  .  §  47 

to  operate  railroad;  license  defined note,  §  47 

or  legislative  grant  necessary  for'ferry  and  toll note,  §  144 

for  ferry;  delegation  of  power  to  county  commissioners'  court.  .  §  178 
charge  upon  telephone  poles  as  a  "consideration  for  the  privi- 
lege" not  a  license §  241 

revocation  of;  obligation  of  contract §  336 

condition  as  to  license,  privilege,  business  or  occupation  charge, 

rental  or  tax §§  356-361 

etc.,  fee;  transportation  and  transmission  companies §  427 

See  Obligation  of  Contracts. 

LICENSE  OR  FRANCHISE §  47 

See  Consent;  Common  Council. 


INDEX  1069 

LICENSE  TAX, 

foreign  corporations;  state  court  decisions;  Federal  question.  ...    §  277 

LIENS, 

against  railroad  company;  partial  invalidity  of  statute §  235 

against  mining  and  manufacturing  companies  not  embraced  in 

title;  act  void §  245 

on  and  sale  of  railroad;  sufficiency  of  title  to  statute §  247 

for  wages  of  employees  on  corporate  property;  equal  protection  of 

laws note,  §  300 

sale  under  statutory;  effect  as  to  exemption  from  taxation §  480 

See  Mechanics'  Liens. 

LIFE  INSURANCE.     See  Insurance  Companies. 

LIGHT, 

or  heat;  exclusive  privilege  to  supply;  construction  of  statute.  .      §  23 

LIGHTING.     See  Electric  Lighting. 

LIGHTING  COMPANIES, 

town  trustees'  ordinance;  invalid  grant  of  franchise;  obligation  of 

town  to  pay  for  lights  ceases §  198 

as  public  utilities Appendix  B  (§  1,  p.  941) 

LIMITATION  OF  LIABILITY, 

railroads §  386 

LIMITED  PARTNERSHIP, 

when  a  citizen;  Federal  jurisdiction §53 

association  when  not  shown  to  be  a  "citizen"  by  the  pleading.  .      §  53 
See  Partnership. 

LINES, 

poles  and  wires  in  streets.     See  Streets. 

LIQUOR  LICENSE, 

right  to,  as  franchise §  21 

LOAN  ASSOCIATIONS, 

as  private  corporations,  etc §  71 

LOAN  COMMISSIONERS.     See  Board  of. 

LOCAL  TAXATION §  153 

Si.-  Taxation. 

LOCK, 

and  dam;  right  to  exact  tolls  is  franchise §  1 7 

LOCOMOTIVE  ENGINEERS 

mination  and  license  of;  color  blind]               ilation  oi  com- 
merce; 'I'"'  proci      of  hiw §  :'.77 


1070  INDEX 

LOG  DRIVING  AND  BOOM  COMPANIES, 

nature  of  affected  by  statute  under  which  incorporated §  90 

boom  company  is  lawfully  "chartered"  corporation §  90 

when  may  exercise  power  of  eminent  domain §  90 

subject  to  state  regulation  of  fees  or  tolls §  90 

rights  of,  in  navigable  rivers;  non-liability  to  riparian  owners.  .  §  90 
construction  of  boom  and  works  in  navigable  river  when  not  a 

burden  on  interstate  commerce §  90 

LOGGING  COMPANIES, 

not  within  Public  Utility  Act §  104 

LOG  ROLLING  AND  BOOM  COMPANY, 

pier  erected  in  navigable  waters  as  part  of  boom  for  saw-logs.  ...    §  146 

LOGS, 

tolls  on,  in  river;  right  to  collect  is  franchise §  17 

pier  erected  as  part  of  boom  for,  in  navigable  waters §  146 

LONG  AND  SHORT  HAULS.     See  Rate  Regulation. 

M. 

MANDAMUS, 

power  of  commissioner  of  waterworks  to  contract  with  "lowest 

bidder"  cannot  be  controlled  by §  184 

MANUFACTURE, 

liberation  of  natural  gas  from  the  earth  is  not  a §  84 

See  Manufacturing  Company. 

MANUFACTURING  COMPANIES, 

classed  as  private  corporations §  55 

when  electric  light,  heat  and  power  companies  are §§  77,  78 

when  natural  gas  company  is  a §  84 

MANUFACTURING  CORPORATIONS, 

are  private  corporations §  91 

MARINE  INSURANCE  COMPANIES.     See  Insurance  Companies. 

MARKET, 

public,  as  franchise §  21 

MARKET  COMPANY, 

is  private  corporation §  92 

MASTER, 

advantage  of  reference  to;  equity  jurisdiction;  rate  regulation 

statute;  excessive  penalties note  (p.  701),  §  416 

MAYOR, 

right  to  preside  is  franchise §  21 


INDEX  1071 

MECHANICS'  LIENS, 

law  specifying  form  of  contract;  due  process  of  law §  298 

MEDICAL  COLLEGE, 

is  private  and  not  public  or  political  corporation §  93 

may  become  a  public  corporation §  93 

creating  act  a  contract §  93 

MILEAGE  TICKETS.     See  Rate  Regulation. 

MILL, 

right  to  build  on  public  river  and  collect  tolls  is  franchise.  .   note,     §  17 

MILL  ACT, 

giving  damages  for  overflowed  lands:  due  process  of  law §  298 

MINES, 

delegation  of  power  to  inspectors  of  coal  mines §  162 

police  power;  employees;  Fourteenth  Amendment §295 

employees  of  corporations  in;  Eight-Hour  Law;  police  power,  note,  §  298 

MINING  COMPANIES, 

liens  against  not  embraced  in  title  and  act  void §  245 

MISDEMEANOR, 

procuring  insurance  for  resident   from  company  not  complying 
with  State's  conditions §  354 

MisrsER, 

of  corporate  powers  or  franchises;  forfeiture §§  488,  489 

• 
MONOPOLIES, 

defined note,    §  22 

franchise  as.  or  exclusive  in  its  nature §§22  27 

monopolies  not  favored §23 

exclusive  arrangements  with  single  concern  by  railroad  company 

when  not §  97 

constitutional  provisions  a--  to  when,  no1  cuting §227 

i   factor  in  rate  regulation Appendix  C  (pp.  986,  1001) 

See  <  lontract. 

MORTGAGE, 

of  franchise;  w  hen  doe    nol  pass  by §  1 1 

of  "  road  and  it-  franchisee  "  embraces  n  hat 

what  franchises  are  subjecl  to;  distinctions  

obligation  of  contract;   mortgaged   franchise  or  property;   pur- 
chaser; reorganization  of  corporation  

er  to ' " ' 

of  franchises  under;  effed  of  aa  to  exemption  from  taxation       §  480 

Uienation. 

MORTGAG1  ES 

non-resident;  resident  creditors;,  preferences   


1072  INDEX 

MUNICIPAL  ASSEMBLY, 

prerequisites  as  to  consent §  379 

MUNICIPAL  CHARTER, 

right  to  amend,  as  to  grant  of  franchises,  not  a  delegation  of  legis- 
lative power  to  people §  189 

MUNICIPAL  CORPORATIONS, 

special  franchises  may  be  conferred  upon §  11 

as  including  counties  and  towns note,  §  56 

acting  in  capacity  of  private  corporation §11 

irrigation  districts  are  not §  88 

obligation  of  contracts §  310 

See  Municipalities. 

MUNICIPAL  COUNCIL, 

delegation  of  power  to;  street  railways;  ferries;  extent  of  power  of 

city's  council §  188 

exercise  of  delegated  powers  to  make  grants;  formalities §  188 

delegation  of  power  by,  to  city  officials;  track  elevation;  subway 

construction §  200 

defined  in  Public  Utilities  Law Appendix  B  (§  2,  pp.  941,  942) 

See  Common  Council. 

MUNICIPALITIES, 

right  of,  to  take  and  improve  lands  as  park  is  franchise.  . .  .   note,  §  12 

grant  of  privilege  by,  to  railroad  company  is  franchise §  14 

authority  of,  to  franchise  for  transmission  of  electricity §  16 

right  of  mayor  to  preside  is  a  franchise §  21 

right  to  license  or  tax  sale  of  liquors,  as  franchise *  . .  .  §  21 

grant  by,  not  grant  of  "corporate  powers  or  privileges"  within 

prohibition  of  constitution §  31 

special  law  authorizing  it  to  issue  bonds  for  waterworks;  not  a 

grant  of  "corporate  powers  and  privileges" note,  §  31 

ordinance  granting  right  to  use  of  conduits  in  streets;  property 

rights : §  33 

privilege  granted  by,  to  telephone  company;  when  not  a  charter.  .  §  44 
grant  of  franchise  to  corporation  organized  under  general  law; 

effect  as  to  "corporate  franchise" §  44 

consent  of,  as  prerequisite  to  use  of  streets,  etc §  44 

grant  of  right  to  construct  spur  track  connecting  with  street  rail- 
road, a  license,  not  a  franchise §  47 

whether  grants  by,  are  license  or  franchise §  47 

when  cannot  grant  franchise §  47 

consent  of,  to  use  of  streets §  47 

grant  by,  invalid  when  no  power  exists  in  city  to  make  it §  48 

with  delegated  powers  acts  as  agent  of  State  in  granting  franchise.  §  48 
attempted  grant  of  franchise  to  telegraph  company;  Post  Roads 

Act;  Federal  franchise §  48 

when  no  power  to  grant  franchises §  48 


index  1073 

MUNICIPALITIES— Continued: 

power  to  grant  franchises i  4g 

classed  as  political  corporation;  nature  of §  55 

may  possess  certain  powers  in  nature  of  private  corporations.  ...  §  55 
special  franchises  may  be  conferred  in  waterworks,  sewers,  etc.; 

resPect  to 'note'  §  55 

subject  to  absolute  control  of  government note,  §  55 

right  to  establish,  alter  and  abolish  such  corporations note,  §  55 

as  public  corporations 1  qi 


levee  district  not  a. 


so 


right  of,  to  control  public  markets note      x  92 

rights  of  telegraph  companies  to  use  streets;  Post  Roads  Act.  ...    §  131 
when  has  power  to  grant  or  to  refuse  grant  to  telegraph  or  tele- 
phone companies &  140 

delegation  to,  of  police  power §  \.\i) 

private  lighting;  certificate  as  prerequisite  to  right §  160 

power  of,  to  regulate  street  railways  when  not  excluded  by  dele- 
gation of  powers  to  railroad  commission §  107 

failure  to  designate  route  for  telephone  line;  delegation  of  power 

to  Circuit  Court  to  do  so  not  sustainable §  1 70 

when  legislative  arts  of  are  those  of  State  within  Circuit  Court  of 

Appeals  Act §  1 77 

failure  to  agree  with  telephone  company  as  to  construction  of 

lines,  etc.;  Probate  Court's  power §  179 

title  to  streets  of  New  York  are  in  city §  183 

of  New  York;  provisions  as  determination  of  court  commissioners 

as  to  construction  of  street  railroad  not  applicable §  1M5 

to  what  extent  subject  to  judicial  review  and  control §184 

city  assembly  cannot    be   rest  rained   by  court  from  granting   by 

ordinance  a  right  in  streets  to  streel  railway  company §184 

right  of  telephone  to  exercise  of  police  power  as  to  approval  of 

plans,  etc §184 

delegation  of  power  to;  generally §185 

when  franchise  may  be  granted  by;  when  not §185 

delegation  of  power  to;   ferries;   bridges;   rates  lor  gas,  water, 

Si  reel    railroads J   |si; 

use  .,f  streets  of;  power  to  "prevent"  and  "regulate"  distin- 
guished   J  Is; 

contract  as  to  maximum  rates  with  city;  u  e  "I  Btreets;  considera- 
tion   5  1  v7 

power  of  to  contract  for  water  supply .  .  §  187 

power  of  rapid  transit   board  to  contract;  construction  of  sub- 
ways; city's  ownership  and  liability;  change  "i  plan         §  L90 

delegation  of  power  to  electrical  commia  ion;  electrical  conduits.  §  I'M 

delegation  of  power  by,  to  city  officials;  elevation  of  tracks;  sub- 
way construct  ion §200 

delegation  of  power  by;  to  whal  extent  limited 5  202 

tion  by  ordinance  to    treet  commi    ioner        j 

68 


1074  INDEX 

MUNICIPALITIES— Continued : 

constitutional  requirement  as  to  bids  before  granting  franchise  are 

self-executing §  226 

exclusive  grant  of  waterworks  franchise  by;  partial  invalidity  of.   §  235 

bonds;  aid  to  railroad;  construction  of  statute §  238 

water   supplied    under   contracts;    general    and    specific    words; 

statutory  construction §  240 

refusal  of  to  permit  laying  conduits §  241 

levy  of  tax  by;  strict  construction  of  statute §  252 

issue  of  bonds  or  subscriptions  to  capital  stock;  railroad  aid;  state 

court  decisions;  Federal  jurisdiction §  276 

questions  as  to  power  of,  to  regulate  speed  of  trains;  effect  upon 

Federal  courts  of  decisions  of  state  courts §  276 

construction  of  ordinance  relating  to  extension  of  street  railway 

franchises §  286 

right  to  set  off  taxes  against  water  rates;  due  process  of  law §  298 

construction  of  waterworks  by;  taking  corporation  property;  due 

process  of  law §  298 

power  to  order  that  telephone  wires  be  placed  in  conduits §  298 

railroad  tracks  in  street;  city  may  resume  control  of §  298 

right  to  lay  tracks  in  streets  of;  implied  reservation  of  right  to 

modify  grant §  323 

corporation  grantee  of  municipal  waterworks;  obligation  of  con- 
tract; exemption  from  execution §  326 

power  to  fix  water  rates;  obligation  of  contracts §  336 

powers  of,  generally;  conditions §§  343-346 

powers  as  to  exemption  from  taxation §  453 

See  Consent;  Municipal  Corporations;  Ordinances;  Police  Power; 
Street  Railway;  Streets. 

MUNN  v.  ILLINOIS, 

regulation  of  public  warehouses  and  their  charges §  391 

MUTUAL  INSURANCE.     See  Insurance  Companies. 

N. 

NAME, 

of  corporation  as  franchise §11 

NATIONAL  BANKS, 

taxation  of;  state  court  decision;  Federal  question §  277 

regulation  of §  389 

franchise  tax §  439 

See  Banks. 

NATIONAL  GOVERNMENT, 

is  one  of  enumerated  powers §  120 

distinction  between  limitations  on  powers  of  Federal  and  state 

governments §  121 

See  Powers. 


index  1075 

NATIONAL  POWERS, 

and  state  powers *  j9n 

NATURAL  GAS, 

liberation  of,  from  earth,  is  not  a  manufacture §  84 

transportation  of;  regulation  of  commerce §  374 

NATURAL  GAS  COMPANIES, 

as  public  or  quasi-public  corporations §  83 

State  may  regulate  pressure  of  natural  gas §  83 

See  Alienation. 

cannot   discriminate j  g3 

compulsory-  service  required s  33 

when  "manufacturing"  company x  84 

NATURE  OF  FRANCHISE §§  22-48 

See  Franchises. 
NAVIGABLE  WATERS.     See  Waters. 

NAVIGATION, 

right  to  improve,  by  canal  is  a  franchise .      §  15 

NAVIGATION  C(  JMPANIES, 

contract  rights  under  act  of  incorporation;  when  may  nol  be  im- 

I)aimi §336 

additional  franchise  tax x  427 

NEGLIGENT :. 

of  public  governmental  officers,  when  no  private  action  lies  for.  .      §  56 
of  corporations  acting  in  quasi-public  character  and  liability  for 

note.      §  56 
liability  of  public,  quasi-public,  and  private  corporations  for.  ...       §  62 
railroad  company's  liability  tor.  to  employees;  constitutional  law.   §  298 
of  corporation  causing  injury  to  employees;  liability;  equal  pro- 
tection of  laws §  300 

"NEWS  CONTRACT," 

as  franchise R  21 

NEW  YORE.     See  Statutes. 

NON-USER 

of  corporate  powers  or  franchises;  forfeiture §  §   188,   IV 

NUISANCE, 

bridge  held  a;  power  of  Congri  s  to  thereafter  declare  i\  a  lawful 

structure §  i_'s 

O. 

OBLIGATION  OF  CONTR  \<  1  - 

exclusive  riLrht  to  supply  gas  1-  contracl §  Hi 

franc!  in1  of  exclu  ;   ind  conl  racl    


1076  INDEX 

OBLIGATION  OF  CONTRACTS— Continued: 

exercise  of  right  of  eminent  domain  when  not  violation  of  obliga- 
tion of  contracts §  26 

telephone  company's  right  to  occupy  public  streets note,     §  33 

right  to  use  city  streets  as  irrevocable  contract §  47 

right  to  maintain  ferry  when  not  a  contract §  47 

corporations  possess  many  of  the  features  of  a  contract.  .  .   note,     §  55 

creation  of  medical  college  is  a §  93 

duty  of  Federal  Supreme  Court  to  protect  constitutional  con- 
tracts      §  137 

ordinance  valid  compelling  repairs  of  railroad  viaduct,  although 

company  relieved  from  making  repairs §  138 

bill  dismissed  where  no  contract  shown  by  claimant  railroad 

company §  '■'' 

to  what  extent  state  court  decisions  binding  upon  Federal  courts 

§§278,279 

impairment  of  obligation  of  contract;  generally §  301 

States;  civil  institutions  of;  constitutional  restraints §  302 

existence  of  legal  contract;  impairment;  state  statutes §  303 

Federal  question;  status  of  party  plaintiff §  304 

impairment  of;  what  are  "laws;"  application §  305 

same;  judicial  acts;  vested  rights §  306 

vested  rights;  amendment  to  effect  purposes  of  charter;  modify- 
ing or  enlarging  powers §  307 

charter  powers  not  contemplated  and  unexecuted;  treated   as 

license  and  revocable §  308 

change  of  remedy §  309 

municipal  corporations §  310 

charter  or  franchise  as  a  contract;  impairment  of  obligation  of 

contract §  311 

same;  Dartmouth  College  case §  312 

statutes;  ordinances;  delegated  authority;  easements  in  streets 

§§313,314 

what  is  not  a  contract;  when  not  impaired;  instances §  315 

same;  instances;  railroad  charter;  subscription  in  aid  of  rail- 
road  ••    §316 

reservation  of  power  to  alter,  amend  or  repeal  grant  of  franchise 

or  charter §  317 

reservation  of  power  to  alter,  etc.,  is  part  of  charter  or  contract.  .    §  318 

reservation  of  power  to  alter,  etc.,  and  limitations  thereon §  319 

reservation  of  power  to  alter,  etc.;  Fourteenth  Amendment;  equal 
protection  of  the  law;  deprivation  of  property;  railroad  em- 
ployees     §  320 

reserved  powers  of  Congress;  amendments  of  charter  of  subsidized 

railroad;  railroad  and  telegraph  company;  cemetery  company.   §  321 
vested  rights;  conditions  as  affecting;  reserved  power  of  Congress; 

railroad  grants §  322 

implied  reservation  in  favor  of  sovereign  power §  323 


index  1077 

OBLIGATION  OF  CONTRACTS— Continued: 

general  and  special  laws;  reservation  of  power  to  alter  or  repeal; 

quo  warranto x  3o_j 

reservation  of  right  to  repeal;  exemption  from  legislative  repeal; 

impairment  of  obligation  of  contracts §  325 

exemption    from   execution;    corporation   grantee   of   municipal 

waterworks x  3og 

exemption;  eminent  domain;  future  legislation §  327 

reservation  of  power  to  amend  charters;  supplementary  charter.  .    §  32S 
mortgaged  franchise  or  property;  purchaser;  reorganization  of 

corporation x  395 

franchises  expiring  at  different   times;   extension   of  franchise; 

reservation  of  power  to  amend  or  repeal §  330 

not  impaired;  consolidation  of  corporations;  reservation  of  power 

to  alter  or  repeal x  331 

eminent  domain x  332 

same;  instances x  333 

constitution;  subsequently  adopted §  334 

police  powers;  regulations §  335 

conditions;  regulations;  reserved  power  to  alter,  etc §  336 

street  paving  by  street  railways;  conditions  and  regulations §  337 

same;  exemption  from  assessment  for  street  paving;  consolidation  §  338 
impairment  of;  illustrative  decisions;  instances;  banks;  rates  of 

interest;  Pullman  cars s  339 

impairment  of;  illustrative  decisions  continued;  tunnel;  ferries; 

bridges;  canals 5  340 

regulation  of  water  rates §§  393  394 

street  railways;  rate  regulation §  39s 

exemption  from  taxation §§  457-461 

See  Rate  Regulation;  Taxation. 
OFFICE, 

"public  office  or  franchise"  in  statute §  9 

public  office  as  franchise §  21 

right  to  preside,  as  franchise §  21 

right  of  mayor  to  preside  is  franchise §  21 

when  not  a  franchise §  21 

of  alderman  when  not  a  franchise note,      §  21 

attorney  or  counsellor  does  not  hold  an,  bul  exercises  franchise.  .      §  21 

0]  I  I'l  RS, 

power  to  appoint  board  of  inspectors  is  franchise 5  21 

president  of  county  board,  franchise  not  conferred  on §  21 

negligence  of  private  governmental;  private  action  for g  56 

visitation  and  inspection  by  public  officials  does  no1  make  private 

corporation  a  public  one     5  62 

See  State  I  officers. 

OIL, 

inspection  of;  interstate  commerce §  11)1 


1078  INDEX 

"OPEN  BOARD  OF  BROKERS," 

membership  in  as  franchise §  11 

OPINION  EVIDENCE.     See  Expert  Testimony. 

ORDINANCES, 

grant  by,  to  railroad  is  franchise §  14 

does  not  create  taxable  franchise  of  telegraph  company.  .......  §  16 

granting  rights  to  use  of  conduits;  property  rights  of  grantees.  .  .  §  33 

when  grant  by,  is  and  is  not  franchise §  48 

only  intended  to  regulate;  when  not  franchise  granted  thereby.  §  48 

may  require  compulsory  service  by  natural  gas  companies §  83 

lawful,  if  enforced  so  as  to  work  discrimination,  will  be  invalidated 

by  courts §  137 

valid  which  requires  railroad  viaduct  to  be  repaired,  notwith- 
standing contract  relieving  railroad  from  repairs §  138 

regulating  street  railways,  when  may  be  enacted,  although  rail- 
road commission  exists §  167 

grant  by,  to  street  railway;  power  of  court  to  restrain §  184 

approved  by  electors;  validity  of;  not  aided  when  unreasonable, 

etc §  195 

of  town  trustees  granting  lighting  franchises  invalid;  obligation  of 

town  to  pay  for  lights  ceases §  198 

for  track  elevation;  subway  construction §  200 

delegation  by,  to  street  commissioner. §  203 

granting  franchise  and  making  contract  with  heat,  etc.,  company; 

void  part  inseparable §  235 

partial  invalidity  of;  terms  of  waterworks  franchise §  235 

"track;"  "track  or  tracks"  in  construction §  241 

when  incorporated  as  part  of  charter §  243 

relating  to  extension  of  street  railway  franchise;  construction  of.  .  §  286 
requiring  street  railway  to  accept  transfers;  due  process  of  law 

clause  violated §  299 

whether  a  "law"  under  obligation  of  contract  clause §  305 

obligation  of  contract §  313 

granting  extension  to  street  railway  companies;  franchises  expir- 
ing at  different  times;  contract  obligations §  330 

See  Common  Council;  Resolution. 

"OTHER  APPLIANCES," 

street  railroads;  term  construed §  241 

"OTHER  STREET  RAILWAYS," 

in  statute  construed §  241 


PACIFIC  RAILROAD  COMPANIES, 

franchises  conferred  by  Congress §  129 


index  1079 

PACKING  HOUSES, 

license,  etc.,  tax §  361 

PALACE  CAR  COMPANIES, 

additional  franchise  tax §  427 

PALACE  CARS.     See  Sleeping-Car  Companies. 

PARI  MATERIA, 

statutes  in.     See  Construction  or  Interpretation  of  Statutes. 

PARISHES, 

as  public  corporations §  61 

PARK, 

right  of  city  to  take  and  improve  lands  for,  is  franchise.  . .  .   note,     §  12 
street  railway  in;  power  of  park  commissioners  to  grant  franchise 

note,     §  14 
See  Yellowstone  National  Park. 

PARK  ASSOCIATION, 

when  a  private  corporation §  94 

PATENT  RIGHT, 

as   franchise §  21 

PENAL  CODE, 

procuring  insurance  for  resident  from  insurance  company  not 

complying  with  State's  conditions §  354 

PENAL  STATUTES, 

construction   of §§  252,  253 

rulings  as  to,  in  state  courts;  effect  of,  in  Federal  courts §  280 

PENALTIES, 

actions  for;  railroad  commission's  powers §  167 

con  titutional  provisions  as  to,  when  not  self-executing §227 

right  of  legislature  t"  remit §  286 

regulation  of  pas  rates §  392 

defense  to  action  for;  rate  regulation §  410 

excessive;  railroad  rates §  I  Hi 

enormous  as  i"  prevenl  resort  to  courts;  equal  protection  of 

law;  Federal  question note  (p.  699),  §  116 

when  void;  other  parts  of  statute  may  lie  valid 

Appendix  C  (pp.  987,  1002) 

PENNSYLVANIA  COLLEGE  CASES 5  331 

PARK.  COMMISSIONERS.     See  Commissioners. 

PARTIES, 

status  of  party  plaintiff;   Federal  question;  obligation  of  con- 

tret- §  304 

state  officer  :i>  defendant;  joinder note  (p.  700),  |   116 


10S0  INDEX 

PARTNERSHIP, 

joint-stock  companies §  52 

shareholders  in  joint-stock  associations;  considered  as.  . .  .   note,  §  52 

whether  joint  stock  is  a §  53 

building  and  loan  associations  as §  71 

when  included  under  "electrical  corporation"  in  statute §  76 

express  companies  a  species  of §  79 

included  under  "gas  corporations; "  statute §  82 

when  included  as  "railroad  corporation;"  statute §  104 

PASSENGERS, 

right  to  carry,  on  railroad,  is  franchise §  14 

taxation  of;  regulation  of  rates §  404 

PATENT, 

when  franchise  not  involved  in  connection  with  right  of  appeal.  .      §  36 

PERMITS, 

from  county  commissioners  for  use  of  streets §  194 

See  Consent. 

PERSON, 

right  to  build,  etc.,  a  railroad  may  be  enjoyed  by  natural  person.  .      §  14 
right  of  natural  person  to  engage  in  corporate  business,  to  build 

railroads,  etc §  30 

right  of  any  person,  natural  or  artificial,  to  carry  on  business  not 

necessarily  a  franchise §  32 

to  what  extent  corporations  are §  §  60,  64 

corporations  as,  under  statutes §  65 

commonwealth  not  a note,     §  65 

private  corporation  is  under  statutory  remedy  for  usurping,  etc., 

"  any  franchise  " §16 

PERSONAL  ESTATE, 

valuation  of  as  basis  of  rate  regulation  largely  matter  of  opinion 

Appendix  C  (pp.  986,  991) 

PERSONAL  PROPERTY, 

franchise   as §  27 

rails  and  other  materials  of  street  railway  embedded  in  street  as 

note,     §  33 

PIERS, 

right  to  construct  and  receive  tolls  for  use  is  franchise §  17 

as  a  structure  not  a  franchise §§  17,  34 

erected  as  part  of  boom  for  saw-logs  differ  from  wharves,  etc., 

made  to  aid  navigation  and  from  piers  for  railroad  bridges.  ...    §  146 
erected  without  authority  in  navigable  waters;  unlawful  struc- 
ture; owner's  liability §  146 

PIKE.     See  Streets. 


INDEX  1081 

PIPE-LINE  COMPANIES, 

consent  of  local  authorities  to  use  of  streets,  etc §  187 

additional  franchise  tax s  427 

PLANK  ROAD  COMPANIES.     See     Turnpike     Companies;     Toll 
Roads. 

PLANK  ROADS, 

nature  of  right;  easement;  franchise;  public  duty $  95 

"PLANT," 

in  charter  of  electric  light,  etc.,  company  construed §  241 

PLAT, 

■when  incorporated  by  reference  in  railroad  grant §  243 

PLEADING, 

when  "limited  partnership  association"  not  shown  to  be  a  "citi- 
zen"       §53 

POLES  AND  WIRES, 

charge  upon  telephone  poles  as  a  "consideration  for  the  privi- 
lege ' '  not  a  tax  or  license §  24 1 

included  in  term  "plant" §  241 

of  electric  companies.     See  Streets. 

POLICE  JURIES, 

delegation  of  power  to;  ferries,  bridges  and  roads §  201 

POLICE  POWER, 

railroad  companies  subject  to  reasonable  police  regulations,  note,  §  97 

statute  fixing  charge  for  elevating,  storing,  etc.,  grain  is  within.  .  J  113 

extent  of $  13] 

of  State;  telegraph  companies;  Post  Roads  Act §  131 

exercise  of,  subject  to  judicial  review §  137 

neither  State  nor  subordinate  agency  can  permanently  divest 

itself  of,  by  action  or  inaction;  waiver §  13.N 

reserved  to  States;  must  be  exercised  in  subordination  to  constitu- 

tion  and  powers  of  national  government §  149 

delegation   of §  1  iy 

and  Federal  (  institution §  149 

essential  qualities  of;  embraces  what §149 

Fourteenth  Amendment;  when  does  not  limit  subjects  for  exer- 
cise    5  149 

right  of  telephone  company  to  its  exercise  as  to  approval  of  plans, 

etc 1 184 

of  State;  legislative  discretion;  extent   of  judicial   interference  or 

inquiry 1 184 

of  cities  over  franchise  of  telephone  company §  187 

Eight-Hour  Law;  mining  employees  of  corporations note,  §  298 

regulation;  obligation  of  contracts 


1082  INDEX 

POLICE  POWER— Continued: 

railroad  crossings  at  new  streets  at  company's  expense §  346 

requirement  that  returns  be  made  by  insurance  companies §  354 

imposing  new  conditions §  362 

extent,  nature,  and  definition  of note,  §  366 

regulation  and  control §  366 

regulation  of  public  warehouses  and  charges §  391 

See  Delegation  of  Power;  Regulation  and  Control. 

POLITICAL  CORPORATIONS.     See  Corporations. 

POLITICAL  INSTITUTION, 


corporation  as  a. 


60 


POLITICAL  RIGHTS, 

as   franchise §  21 

POST  ROADS  ACT, 

taxation  of  telegraph  company §  16 

extent  of  authority  granted  by;  telegraph  companies §131 

hostile  state  legislation;  telegraph  companies §  131 

permissive  only §  131 

See  Statutes. 

POST-ROUTE, 

what  it  includes  as  to  bridge §  128 

power  of  Congress  to  declare  bridge  a  post-route §  128 

POSTS, 

and  lines  in  streets.     See  Poles  and  Wires;  Streets. 

POWER  COMPANIES, 

nature  of,  as  corporations,  etc §  76 

when  property  of,  is  devoted  to  public  use §  76 

when  "manufacturing;"  when  not §§  77,  78 

as  public  utilities Appendix  B  (§  1,  p.  941) 

POWERS, 

franchises  not  mere  naked  powers,  but  vested  legal  estates §  29 

and  franchise;  to  what  extent  distinguished §  32 

of  corporation;  how  ascertained §  42 

of  corporation;  resort  to  charter  necessary  to  ascertain §  45 

municipality  when  no  power  to  grant  franchises §  48 

Federal,  constitutional  and  legislative;  source  of  franchise.  .    §§  120-131 

national  and  state;  generally §  120 

distinction  between  limitations  on  powers  of  Federal  and  state 

governments §  121 

grants  or  source  of  franchises;  governmental  or  legislative  powers; 

generally §  122 

implied  powers;  creation  of  corporation §  124 

power  to  create  corporations  distinct  from  power  to  make  war, 

levy  taxes,  or  regulate  commerce note,  §  124 


INDEX  1083 

POWERS— Continued: 

of  Congress  over  franchises  of  state  corporation §  125 

of  Congress;  bridge  corporation;  bridges;  commerce §  127 

of  Congress  to  declare  bridge  lawful  structure  after  being  held  a 

nuisance;  or  after  injunction  suit;  post-route §  12S 

of  Congress;  grants  of  franchises  to  railroads §  129 

of  Congress  to  charter  savings  institution  in  District  of  Columbia.   §  130 
of  national  government;  police  power  of  State  does  not  neces- 
sarily encroach  upon . §  131 

source  of  franchise;  state,  constitutional  and  legislative  powers 

§§  132-146 
of  government;  distribution  and  division;  legislative,  executive 

and  judicial  department §  135 

grants  of  franchises,  etc.;  what  matters  exclusively  within  legis- 
lative discretion;  power  of  courts §  136 

of  State  to  legislate  as  to  corporations  on  high  seas §  137 

governmental  power;  every  presumption  in  favor  of  continuance 

of §  138 

abdication   or   surrender   of   essential   or.  distinctive   legislative 

powers §  1 38 

of  legislature  not  exercisable  to  bind  future  legislatures §  138 

waiver;   encroachments  on  sovereign  powers;   exercise  of  fran- 
chises; acquiescence  in §  13S 

no  department  of  government  can  abdicate  or  resign  its  distinctive 

powers  to  another  department §  1 38 

of  state  legislature;  limitations  upon §138 

exemption  from  exercise  of  power;  when  presumption  against..  .    §  138 

extent  of  legislative  powers  of  Territories §  139 

consent  of  subordinate  agency  or  body  unnecessary  to  exercise  of 

power  by  legislature §141 

of  legislature;  grants  of  additional  franchises;  amendments §  143 

of  Congress  over  bridge  franchises §  145 

of  Congress;  navigable  waters  within  a  State;  bridges §  145 

of  State  over  bridges;  bridge  corporation §  145 

of  State*  over  foreign  corporations §§  351-302 

of  States  to  act  where  Congress  has  not  acted;  interstate  com- 
merce  §§  :;r'~'  368 

of  Interstate  Commerce  Commission I  103 

non-user  of  legislative §  '"•' 

empl  from  taxation;  state,  municipality  and  board  of  assess- 
ment  : §  453 

surrender  of  power  of  taxation;  presumptio               itory  con- 
struction     I 

legislative  power;  forfeiture  of  franchise 

Uienation;  Congress;  Constitutional  Law;  Corporations; 
Delegation  of  Power;  Grants;  Municipality;  <  Ibligation  of  Con- 
tracts; Police  Power;  Regulation  and  Control;  Rate  Regulation; 

Taxation. 


1084  INDEX 

PRACTICE, 

findings;  reasonableness  of  rates §  409 

PRESIDENT, 

delegation  of  power  to §  151 

of  county  board,  franchise  not  conferred  on §  21 

PRESCRIPTION, 

or  charter  necessary  to  ferry  franchise note,  §  15 

franchises  held  by §  122 

ferry  franchise §  133 

franchise  or  charter  held  by §  133 

PRESSURE, 

of  natural  gas;  State  may  regulate §  83 

PRESUMPTIONS, 

that  statute  constitutional §  231 

as  to  corporations  being  composed  of  citizens  of  State  of  creation 

note,  §  291 

that  rates  fixed  by  legislative  action  are  reasonable §  408 

state  rate  statute  -prima  facie  valid  and  burden  on  carrier  to  prove 

contrary note  (p.  701),  §  416 

that  all  property  subject  to  taxation;  surrender  of  power  of;  ex- 
emption from §  455 

legislative  authorization;  alienation  of  franchises;  construction  of 

statutes §  467 

PRIMARY  FRANCHISE, 

of  corporation;  what  is §  8 

PRIVATE  CORPORATIONS, 

municipalities  may  possess  certain  powers  in  the  nature  of §  55 

distinct  in  that  object  for  emolument  of  members note,     §  55 

corporators  of  in  one  sense  trustees note,     §  55 

as  quasi-public  corporations,  when  authorized  to  carry  on  certain 

works §  56 

effect  of  ownership  of  stock  in  determining  whether  public  or  pri- 
vate corporation §  60 

distinguished  from  public  corporation §§  60-62 

defined  and  distinguished  from  others §§  61-62 

not  made  public  one  by  being  subject  to  visitation  and  inspection     §  62 

liability  for  negligence §  62 

what  corporations,  etc.,  are  and  are  not §§  68-119 

See  Name -of. 

"PRIVILEGES," 

in  constitution §  9 

meaning  of  exclusive  privilege note,     §  24 

See  Definitions. 


index  1085 

PRIVILEGES  AND  IMMUNITIES  OF  CITIZENS, 

in  the  several  States §s  291-293 

of  United  States 5  296 

PROBATE  COURTS, 

delegation  of  power  to;  use  of  streets  for  telephone  lines;  power  as 

to  construction §  179 

PROCESS, 

of  Federal  Circuit  Courts  to  aid  Interstate  Commerce  Commission   §  177 
service  of;  foreign  corporations;  conditions  imposed  by  State §  353 

PROFESSOR, 

appointment  of;  right  to,  as  franchise §  21 

PROFITS, 

"excessive"  or  "enormous;"  value  of  property;  rate  regulation 

Appendix  C  (p.  995) 
PROPERTY, 

corporate  right  to  acquire  and  sell  land  is note,     §  12 

right  of  corporation  to  hold,  is  franchise §  32 

or  franchises  which  corporation  may  acquire,  distinct  from  fran- 
chise to  be §  33 

rights  of  telegraph,  telephone  and  electric  light  companies  to  use 

conduits §  33 

consent  of  abutting  owners  to  use  streets;  when  creates  rights  of.  .      §  33 

corporate  property  and  capital  stock  distinguished note,   §  IL\r> 

franchises  of  public  service  corporations  are Appendix  C  (p.  980) 

"PUBLIC  COMPANIES," 

when  railroad  companies  are §  98 

PUBLIC  CORPORATIONS, 

and  their  nature  and  class note,  §55 

quasi-public  corporations  as  subdivisions  of §  5(i 

includes  board  of  chosen  freeholders note,  §  58 

distinction  between  and  private  corporation 5  60 

ownership  of  stock  as  determining  whether  public  or  private  cor- 
poration   §  60 

quasi-public  and  private  corporations,  distinguished §61 

power  of  legislature  over,  to  impose  modifications,  etc.            note,  5  <>l 
private  corporation  nol  made  public  one  by  being  subject  to  visita- 
tion and  inspection J  62 

liability  for  negligence 5  62 

what  corporations,  etc.,  are  and  are  no! §§  68  1 19 

See    Names  of. 

PUBLIC  FRANCHISE, 

in  statute  as  to  usurping  office  or  franchise   § '■• 

of  city  to  take  possession  of  park §  11 


10S6  INDEX 

PUBLIC  FUNDS, 

grant  of  right  to  receive  portion  of,  not  exclusive  franchise,  etc. 

note,     §  24 
PUBLIC  IMPROVEMENT, 

grant  to  construct;  monopoly  not  implied §  22 

PUBLIC  LAND  GRANTS, 

strict  construction  against  grantee §  256 

PUBLIC  LANDS, 

and  aid  to  railroads note,  §  129 

PUBLIC  MARKET, 

as  franchise §  21 

PUBLIC  MARKETS, 

right  of  city  to  control note,     §  92 

See  Market  Company. 

"PUBLIC  OFFICE," 

or  franchise  in  statute;  what  is §  9 

as  franchise. ; §  21 

PUBLIC  SERVICE  COMMISSION, 

delegation  of  power  to §  166 

PUBLIC  SERVICE  COMMISSIONS  LAW, 

of  New  York;  term  corporation  includes  what 

§  52  (Appendix  A,  pp.  878-937) 

classification  of  statutes §  59 

"electrical  corporation"  in;  includes  what  corporations,  etc §  76 

"common  carrier"  includes  what  corporations;  etc..  ......'......      §  74 

"gas  corporation"  in,  includes  what  corporations,  etc §  82 

public  service  commissions;  general  provisions 

Appendix  A  (pp.  880-894) 

short  title .' .p.  880 

definitions •  •  •  , P-  880 

public  service  districts p.  882 

commissions  established;   appointment;   removal;   terms  of 

office p.  882 

jurisdiction  of  commissions. .  .'.  . .  ....  . .  ....  . . p.  883 

counsel  to  the  commissions p.  885 

secretary  to  the  commissions '.'. p.  885 

additional  officers  and  employees .  ■  •  P-  885 

oath  of  office;  eligibility  of  commissioners  and  officers p.  886 

office  of  commissions;  meetings;  official  seal;  stationery.  ..  .p.  886 

quorum;  powers  of  a  commissioner p.  886 

counsel  to  the  commissions;  duties p.  887 

salaries  and  expenses.  .  .•■ p.  887 

payment  of  salaries  and  expenses p.  888 

certain  acts  prohibited p.  890 


INDEX  1087 

PUBLIC  SERVICE  COMMISSIONS  LAW— Continued: 
general  provisions — continued : 

annual  report  of  commissions p.  890 

certified  copies  of  papers  filed  to  be  evidence p.  891 

fees  to  be  charged  and  collected  by  the  commissions p.  891 

attendance  of  witnesses  and  their  fees p.  892 

practice  before  the  commissions;  immunity  of  witnesses.  ..  .p.  893 

court  proceedings;  preference p.  893 

rehearing  before  commission p.  894 

service  and  effect  of  orders p.  894 

railroads,  street  railroads  and  common  carriers 

Appendix  A  (pp.  896-906) 

application  of  article : p.  896 

adequate  service;  just  and  reasonable  charges p.  896 

switch  and  side-track  connections;  power  of  commissions,  .p.  896 

tariff  schedules;  publication p.  897 

changes  in  schedule;  notice  required p.  898 

v     concurrence   in   joint  tariffs;   contracts,  agreements  or  ar- 
rangements between  any  carriers p.  899 

unjust  discrimination p.  899 

unreasonable  preference p.  899 

transportation    prohibited    until    publication    of   schedules; 

rates  as  fixed  to  be  charged;  passes  prohibited p.  900 

false  billing,  etc.,  by  carrier  or  shipper p.  902 

discrimination  prohibited;  connecting  lines p.  902 

long  and  short  haul p.  903 

distribution  of  cars p.  904 

liability  for  damage  to  property  in  transit p.  904 

continuous  carriage p.  905 

liability  for  loss  or  damage  by  violation  of  this  act p.  906 

powers  as  to  common  carriers,  railroads  and  street  railroads 

Appendix  A  (pp.  907  921  l 
general  powers  and  duties  of  commissions  in  respeel  to  com- 
mon carriers,  railroads  and  street  railroads p.  '.KIT 

reports  of  common  carriers,  railroad  corporations  and  street 

railroad  corporal  ions p.  908 

investigation  of  accidents   p   909 

investigations  by  commission p   910 

and  service  to  be  fixed  by  the  commissions p.  '-'I  i 

power  of  commissions  to  order  repairs  or  changes p.  912 

power  of  commissions  to  order  changes  in  time  schedules; 

running  of  additional  cars  and  trains  p   913 

uniform   ■;.   h  m  of  accounts .  accounts,  etc, ;  i-i 

feitures p.  914 

franchises  and  privileges p   914 

transfer  of  franchises  or  stocks   p.  915 

approval  oi                     ck,  bonds  and  other  forma  of  indent- 
!• 


1088  INDEX 

PUBLIC  SERVICE  COMMISSIONS  LAW— Continued: 

powers  as   to  common   carriers,    railroads   and   street    railroads 
— continued : 

forfeiture;  penalties p.  918 

summary  proceedings p.  919 

penalties  for  other  than  common  carriers p.  919 

action  to  recover  penalties  or  forfeitures p.  920 

duties  of  commissions  as  to  interstate  traffic p.  921 

gas  and  electrical  corporations;  rate  regulation 

Appendix  A  (pp.  922-933) 

application  of  articles p.  922 

general  powers  of  commissions  in  respect  to  gas  and  elec- 
tricity  p.  922 

inspection  of  gas  and  electric  meters p.  925 

approval  of  incorporation  and  franchises;  certificate p.  926 

approval  of  issue  of  stock,  bonds  and  other  forms  of  indebt- 
edness  p.  927 

approval  of  transfer  of  franchises p.  928 

complaints  as  to  quality  and  price  of  gas  and  electricity;  in- 
vestigation by  commission;  forms  of  complaints p.  929 

notice  and  hearing;  order  fixing  price  of  gas  or  electricity,  or 

requiring  improvements p.  930 

forfeiture  for  non-compliance  with  order p.  931 

summary  proceedings p.  932 

defense  in  case  of  excessive  charge  for  gas  or  electricity p.  932 

jurisdiction p.  933 

powers  of  local  officers p.  933 

commissions  and  offices  abolished;  saving  clause;  repeal 

Appendix  A  (pp.  934-936) 
board  of  railroad  commissioners  abolished;  effect  thereof.  .  .p.  934 
commission  of  gas  and  electricity  abolished;  effect  thereof,  .p.  934 

inspector  of  gas  meters  abolished;  effect  thereof p.  934 

board   of   rapid   transit   railroad   commissioners   abolished; 

effect  thereof p.  934 

transfer  of  records p.  934 

pending  actions  and  proceedings p.  935 

construction p.  935 

repeal p.  936 

appropriation p.  936 

time  of  taking  effect p.  936 

PUBLIC  SERVICE  CORPORATIONS, 

when  gas  company  is §    82 

State  has  power  to  regulate  rates  and  services §147 

See  Names  of. 

PUBLIC  USE, 

property  of  electric  light  company  when  devoted  to §  76 

furnishing  natural  gas  when  a §  83 


INDEX  1089 

PUBLIC  USE— Continued: 

use  of  water  for  irrigation  is  a §  88 

levee,  when  a §  89 

railroad  companies  uses  are  public note,     §  97 

railroads §  102 

railroad;  machine  for  unloading  coal;  branch  railroad  track;  pub- 
lic use §  103 

wharf §  1 19 

in  eminent  domain  statute  construed §  241 

See  Eminent  Domain. 

PUBLIC  UTILITY  LAW, 

of  Wisconsin Appendix  B  (pp.  940-977) 

"railroads"  includes  what §  104 

amendment  to  include  certain  companies  or  corporations §  10 ! 

delegation  of  power  to  railroad  commission §  168 

Public   Utility   Law;   definitions;    "public   utility,"   "municipal 

council,"  "municipality,"  "service,"  "indeterminate  permit," 

"commission" p.  941 

railroad  commission's  powers p.  942 

utility  charges  to  be  reasonable  and  just p.  '.112 

facilities  to  be  granted  to  other  utilities;  complaint  and  appeal,  .p.  943 

utility  property;  valuation p.  943 

valuation;  commission's  hearing  and  report p.  943 

revaluation p.  944 

uniform  accounting  by  utilities;  other  business  separate p.  944 

forms  of  bookkeeping;  prescription p.  944 

blanks p.  944 

no  other  books,  etc.,  to  be  kept  than  those  prescribed  or  approved 

by  commission p.  945 

books;  office  for;  no  removal  from  State p.  945 

balance  sheets  filed  annually 1'   9  15 

audit  and  inspection       p    945 

depreciation  rates  and  accounts;  commit  ion  s  rules;  depreciation 

fund  and  use  thereof pp.  945,  946 

new  constructions;  accounting p.  946 

profit-sharing  and   sliding  scales,   when   and   while  commission 

approves         pp.  946,  ''IT 

report    by  utilities;  items p.  947 

con  i  mi --ion':-  reports,  annual  and  other;  value    3hown          pp.  947,  9  Is- 

in1    record    public " "   948 

temporary    ecrecy     p.  948 

units  of  product  or  Ben  ice                          p.  948 

tandard  mea  uremenl  ;  accurate  appliances r 

teal  oi  mea  uring  instruments;  fees p  949 

public  equipment  for  tests P   949 

entry  upon  premi  e           p.  949 

publicity  o\  rate  schedules p.  949 

69 


1090  INDEX 

PUBLIC  UTILITY  LAW— Continued: 

publicity  of  rules  and  regulations p.  950 

files  accessible  to  public p.  950 

publicity  of  joint  rates p.  950 

changes  of  rates;  ten  days'  notice p.  950 

publicity  of  revised  schedules p.  950 

unlawful  to  depart  from  schedules p.  951 

schedule  forms  prescribed p.  951 

classification  of  utility  service p.  951 

commission's  rules  of  procedure p.  951 

business  management;  inquiries p.  951 

books  subject  to  inspection pp.  951 ,  952 

judicial  process    to  obtain  papers p.  952 

commission's  employees p.  952 

agents  of  commissions;  powers pp.  952,  953 

response  of  utilities  to  commission's  calls p.  953 

complaint  by  consumers pp.  953,  954 

hearing  on  complaint p.  954 

ten  days'  notice  of  hearing p.  954 

commission  to  fix  rates  and  regulations pp.  954,  955 

costs  of  investigation p.  955 

separate  rate  hearings;  absence  of  direct  damage p.  955 

summary  investigations p.  955 

followed  by  general  hearings pp.  955,  956 

hearings;  notices  and  procedure p.  956 

utilities  may  complain p.  956 

evidence  and  witnesses;  proceedings  for  contempt pp.  956,  957 

witness  fees  and  mileage p.  957 

depositions p.  957 

stenographic  records p.  957 

in  court  actions,  commission  to  file  testimony p.  957 

certified  transcripts  of  testimony  as  evidence pp.  957,  958 

free  transcripts  for  parties p.  958 

commission  to  determine  rates  and  regulations;  utility  at  fault  to 

pay  costs;  orders,  service  and  effect pp.  958,  959 

utilities  to  conform  to  order  made p.  959 

commission  may  change  orders pp.  959,  960 

findings  of  commission  prima  facie  lawful  and  reasonable p.  960 

utility  dissatisfied  with  order  of  commission;  action  to  set  aside; 

precedence  on  calendar p.  960 

action  to  set  aside  order  of  commission;  ninety  days  for.  .    pp.  960,  961 

injunction  procedure;  order  of  commission p.  961 

new  evidence  before  court;  stay  while  commission  reconsiders.  .  p.  961 
upon  commission's   refinding,   rescission,   alteration,   or  amend- 
ment of  order;  judgment  on  original  order;  conclusion  of  trial 

pp.  961,962 

appeal  to  Supreme  Court p.  962 

burden  of  proof p.  962 


INDEX  1091 

PUBLIC  UTILITY  LAW— Continued: 

court  procedure;  service  of  process;  evidence;  powers  and  com- 
pensation of  sheriff  and  other  officers p.  962 

incriminating  evidence;  production  of  books,  accounts  and  pa- 
pers     pp.  962,  963 

distribution  of  orders  of  commission;  orders  as  prima  facie  evi- 
dence   p. 963 

competition  of  utilities,  municipalities  and  others pp.  963,  964 

foreign  utilities  excluded p.  96-4 

grants  hereafter  to  be  indeterminate;  municipal  acquisition.  ..  .p.  964 
voluntary  change  to  indeterminate  plan;   contract   waiver  im- 
plied  pp. 964,  965 

grants  hereafter;  implied  consent  and  waiver p.  965 

municipal  powers  under  utility  law pp.  965,  966 

plants  now  existing,  municipality's  action  to  acquire p.  966 

under  indeterminate  permit;  municipality's  notice  for  acquisi- 
tion  P-  966 

compensation  for  property  taken  of  public  utility  to  be  deter- 
mined  by  commission   and   certified;    public   hearing;    notice; 

filing  certificate pp.  966.  967 

appeal  to  court  from  compensation  order p.  967 

if  decision  for  commission p.  967 

if  decision  for  utility p.  96*i 

reconsideration  of,  or  rehearing  as  to,  compensation;  alteration  or 

amendment  of  previous  order pp.  967,  968 

power  of  municipal  councils  to  regulate  utilities;  appeal p.  968 

franks  and  privileges  to  political  committees  and   candidates; 

penalty P-  969 

unjust  discrimination;  definition  and  penalty pp.  969,  970 

facilities  by  publi<-  utilities,  in  exchange  for  compensation,  pro- 
hibited; exceptions  or  qualifications p.  970 

undue  preference  or  prejudice  by  public  utility;  penalty   .    pp.  970,  "71 
reba1  discriminations  unlawful;  penalty         p.  971 

utility's  liability  for  damages;  treble  damages p.  971 

information,   papers   and    accounting;    officers,   agents    or   em- 
ployees of  utilities;  delinquency   penal pp.  (,7I  .  972 

violations  by  utilities  in  general,  penalty;  utility  responsible  for 

ents p.  972 

municipal  officer-'  delinquency  penal pp.  972,  973 

interference  with  commission's  equipmenl  pen.: I p.  973 

every  day's  violation  distincl  p.  973 

temporary  alteration  or  suspension  of  rate- pp.  973,  974 

followed  by  permanent  rate  regulation p.  974 

lives  lost;  utility  musl  report;  investigation  p   974 

rofcommi  lriH 

attorney's  aid  in  prosecution;  Buil  to  n  i  iture  or 
penalty;  suit  in  name  of  State.  m  specified  curt;  power  to 
employ    counsel    pp.974 


1092  INDEX 

PUBLIC  UTILITY  LAW— Continued: 

commission's  work;   rules,  orders,  acts  and  regulations  of;  tech- 
nical omissions  not  to  invalidate P-  975 

other  rights  of  action;  release  or  waiver;  penalties  cumulative.  .  .p.  975 
rates  of  April  1,  1907,  to  govern,  unless;  reports  thereof;  proceed- 
ings to  change PP-  975,  976 

employees  of  commission  and  their  compensation p.  976 

appropriation P-  976 

conflicting  laws  repealed P-  977 

PULLMAN  CARS.     See  Sleeping-Car  Companies. 
PULLMAN  CAR  COMPANIES.    See  Obligation  of  Contract;  Sleeping- 
Car  Companies. 

PURCHASERS, 

liability  for  torts  and  debts  of  corporation §  464 

Q- 

QUASI-CORPORATIONS, 

may  be  public  or  private §  61 

QUASI-JUDICIAL  POWERS.     See  Board  of  Equalization;  Dental 
Board. 

QUASI-MUNICIPAL  CORPORATIONS. 

as  including  counties,  towns,  school  districts,  etc §  56 

fire  engine  company  as  a §  81 

QUASI-PUBLIC  CORPORATIONS, 

consent  to  use  of  streets  by §  47 

counties,  towns  or  townships,  school  districts,  etc §  56 

term  used  generally  to  designate  subdivision  of  public  corporations  §  56 

defined  and  distinguished  from  public,  etc.,  corporations §§  61-62 

liability  for  negligence §62 

what  corporations  are  and  are  not §§  68-119 

See  Names  of. 
QUO  WARRANTO, 

to  restrain  use  of  corporate  name §11 

right  to  operate,  etc.,  waterworks  is  franchise  which  may  be  an- 
nulled by §  16 

as  remedy;  unlawful  exercise  of  rights  to  license  sale  of  liquors.  ...  §  21 

lies  to  test  franchise  right  of  appointment  of  professor  of  college.  .  §  21 

lies  to  test  franchise  right  of  mayor  of  city  to  preside §  21 

to  test  right  to  exercise  franchises;  statutes;  validity  of §  230 

obligation  of  contracts §  324 

forfeiture  of  franchise §  486 

R. 

RACE  TRACK  ASSOCIATION, 

as  a  private  and  not  a  quasi-public  corporation §  96 


INDEX  1093 

RACE  TRACK  ASSOCIATION— Continued: 

as  a  public  corporation;  subject  to  conditions  imposed  by  legis- 
lature      §  96 

RACING  ASSOCIATION.     See  Race  Track  Association. 

RAILROAD  ACT, 

of  Wisconsin;  title  of note,     §  59 

See  Public  Utility  Law. 

RAILROAD  AND  WAREHOUSE  COMMISSION. 

delegation  to;  extent  of  powers;  railroads;  carriers;  increase  of 

capital  stock §  169 

RAILROAD  BRIDGES, 

as  public  use * §  70 

as  included  in  "bridge" §  145 

removal  of;  power  of  drainage  commissioners §  159 

crossing  highways;  delegation  of  power  to  courts  of  equity §  172 

See  Bridges. 

RAILROAD  CARRIERS.     See  Common  Carriers;   Railroad  Corpo- 
rations. 

RAILROAD  COMMISSION, 

is  an  administrative  body §  167 

power  granted  to  when  does  not  exclude  city's  powers  regulating 

street  railways §  1  (17 

delegation  of  power  to  not  unconstitutional  as  delegation  of  leg- 
islative powers §167 

delegation  of  power  to;  Public  Utility  Law  of  Wisconsin §  168 

disputed  matters  between  it  and  railroad;  adjudication  of  by  Su- 
preme Court  is  judicial  and  no1  supervisory,  etc §184 

statute  partially  invalid;  separable  provisions;  rate  regulation.  . .  .    §214 

righl  to  create §412 

Sei    I  •    i'    I  Regulation. 

RAILROAD  COMMISSIONERS 

consent  required  and  refusal  of  to  give;  legislature  may  cure  de- 

fecl       §140 

consent  not  prerequisite  to  <_rr:ini  of  franchise  by  State  to    treel 

railway §167 

of  rule*  and  regulations   §167 

delegal  ion  of  power  to   §167 

extent  of  powers      §  '•'" 

determination  of  nee,-    ity  of  certi6cate  of  public  conveniei 

etc. ,  as  to  railroad    nol    ubject  to  judicial  revision  §184 

partial  invalidity  of  statute  including  certain  property  oi 
roads  foi 

I.    u   \:<  gulation. 


1094  INDEX 

RAILROAD  CORPORATIONS, 

special  franchise  of  defined §  7 

franchises  of,  embrace  what note,  §  12 

right  to  carry  passengers  is  franchise §  14 

right  of  to  be  and  to  build  road  is  franchise §  14 

right  to  receive  tolls  or  fares  is  franchise §  17 

rates  and  tolls;  distinction §  17 

right  of  shareholders  in;  an  incorporeal  hereditament §  28 

what  franchises  of,  are  subject  to  mortgage §  30 

has  different  franchises;  rolling  stock,  etc.,  distinguished  from 

right  to  take  fares,  etc §  34 

extent  of  powers  of note,  §  42 

franchise  resides  primarily  in  State;  but  city  may  act  as  agent  of 

State §  48 

how  classed;  nature  of §  55 

term  quasi-public  corporation  held  a  misnomer  when  applied  to.  .  §  56 
ownership  of  stock  as  affecting  classification  as  private  corpora- 
tions      §  62 

right  to  exercise  eminent  domain;  obligations  imposed  by  assum- 
ing    note,  §63 

are  quasi-public  servants note,  §  63 

extending  road  into  another  State;  not  a  citizen  of  such  State 

note,  §  67 

are  "common  carriers; "  statute §  74 

rights  to  construct  bridge  not  superior  to  public  rights  as  to 

drainage §  75 

distinguished  from  express  companies §  79 

as  public. corporations  or  "public  companies;"  statute §  98 

as  private  corporations §  99 

misnomer  to  attach  name  "quasi-public  corporation  "  to  them.  .  .  §  99 

nature  of  as  affected  by  their  relation  and  duty  to  the  public §  97 

may  make  reasonable  rules  for  the  use  of  its  property §  97 

empowered  to  charge  reasonable  rates §  97 

within  operation  of  all  reasonable  police  regulations note,  §  97 

property  subject  to  burdens  not  imposed  upon  owners  of  purely 

private  property note,  §  97 

cannot  discriminate §  97 

subject  to  reasonable  regulation  and  control §  97 

may  make  arrangements  granting  special  privileges  to  single  con- 
cern as  for  use  of  hacks,  etc §  97 

obligated  to  perform  duties  or  may  be  held  liable  in  damages  note,  §  97 

right  to  construct  railway  and  take  tolls  is  a  franchise note,  §  97 

cannot  by  contract  render  themselves  incapable  of  performing 
their  duties  or  absolve  themselves  from  obligations  without 

consent  of  State §  97 

as  quasi-public  corporations §  100 

as  forming  distinct  class  by  themselves;  distinct  from  public,  pri- 
vate or  other  quasi-public  corporations §  101 


INDEX  1095 

RAILROAD  CORPORATIONS— Continued: 

taxable x  102 

as  public  use §  102 

machine  for  unloading  coal;  public  use;  branch  track §  103 

test  whether  branch  railroad  track  is  for  public  or  private  purposes  §  103 

in  statute  includes  what §  104 

private  railroads  not  within  Public  Utility  Act §  104 

railroads  as  public  utilities;  Public  Service  Commissioners  Law; 

Public  Utility  Act §  10} 

as  common  carriers;  obligations  imposed §  105 

when  not  common  carriers §  105 

when  business  within  control  of  Congress;  interstate  commerce.  .  .    §  106 
railroad  carriers  business  as  part  of  trade  or  commerce;  interstate 

commerce §  106 

business  of  public  nature  and  must  perform  service  on  equal  terms 

to  all §  106 

state  franchise  not  merged  in  Federal  franchises  granted §  129 

power  of  Congress  to  grant  franchises  to;  interstate  commerce; 

the  Pacific  railroads  companies §  129 

when  corporation  de  facto  under  acts  of  Congress §  129 

public  lands  and  aid  to note,  §  129 

Federal  aid  to §129 

power  of  Congress  as  to  right  of  way  for  through  Indian  Territory   §  130 
relieved  from  making  repairs,  when  still  obligated  to  repair  via- 
duct      §138 

franchise;  power  to  grant  may  be  delegated §  148 

long  and  short  hauls;  competition;  Interstate  ( lommerce  Commis- 
sion     J 

commissioners  of  bridges  authorization  of  railroads  over  bridges; 

contract  does  not   create  franchise 5  158 

duty  of  to  remove  bridge  at  own  expense;  power  of  drainage  com- 
missioners         |  ]  59 

subjecl  to  state  regulation §  167 

created  by  State;  extenl  of  power  to  regulate  and  control §  Ki7 

interstate  commerce  no1  interfered  with  by  decree  of  Btate  court 

requiring  construction  of  lines,  etc §  167 

delegation  to  Railroad  and  Warehouse  Commission;  regulation, 

etc.,  of 5  169 

order  of  State  Corporation  Commission  to  deliver  cars;  when  e 

burden  on  interstate  commerce 5  170 

invoking  jurisdiction  of  Federal  court  under  impairment  of  obli- 
gation of  contract  clause  and  none  is  shown;  bill  d  ,    §  177 

i  ounty  courl  'a  aul  hority  to  granl 

certificate  of  public  convenience,  etc.;  determination  of  railroad 
commissioners  a    to,  no1  subjecl  to  judicial  revi  ion  S  's' 

ited  matters  between  it  and  railroad  commission;  adjudica- 
tion of  by  Supreme  Court  is  judicial  and  not  supei  j  Is I 
grant  to;  d<  legated  power  to  citii    ;  n    trictions  imposed 


1096  INDEX 

RAILROAD  CORPORATIONS— Continued: 

consent  of  local  authorities  to  use  streets §  187 

extent  of  power  of  selectmen  of  town  over  conditions  as  to  con- 
struction, repairing,  etc §  197 

constitutional  provisions  as  to  when  not  self-executing §  227 

construction  of  statutes;  delivery  of  county  bonds  to,  in  aid  of.  .    §  228 
partial  invalidity  of  statute  directing  railroad  commissioners  to 

include  certain  property  for  assessment §  235 

partial  invalidity  of  statute  as  to  liens §  235 

bonds  in  aid  of;  construction  of  statutes §  238 

land  grant  acts  in  aid  of;  "granted  lands"  construed §  241 

words  in  statute,   "for  its  government"  imply  regulation  and 

control §  241 

construction  of  telegraph  lines  along  "any  railroad"  or  "along 

and  parallel"  to  railroads §  241 

conflicting   grants  of  land;   undivided   moiety;   construction   of 

statute §  242 

reference  to  plat  incorporated  in  grant  to §  243 

status  of  foreign;  "act"  to  incorporate note,  §  244 

sufficiency  of  title  to  act  incorporating note,  §  245 

sufficiency  of  title  of  statute note,  §  245 

lien  on  and  sale  of  railroad;  sufficiency  of  title  to  statutes §  247 

sufficiency  of  title  to  statutes §  247 

bonds  in  aid  of;  sufficiency  of  title  to  statutes §  247 

grants  to;  strict  construction  of,  against  grantee §  255 

aid  grants;  construction  of §  256 

statute  providing  for  state  board  of  inspection,  etc.,  of,  is  reme- 
dial      §  264 

jurisdiction  of  court  of  visitation  over  telegraph  and  railroad  com- 
panies; rule  in  pari  materia §  265 

subscription  to  capital  stock  of;  state  court  decisions;  Federal 

jurisdiction §  276 

validity  of  issue  of  bonds  in  aid  of;  state  court  decision;  Federal 

jurisdiction §  276 

liability  to  employees;  fellow  servants;  construction  of  statute  by 

state  courts;  effect  of §  276 

land  grants;  Federal  courts  not  bound  to  follow  state  court  de- 
cision as  applied  to  corporation  created  by  Congress §  276 

grade  crossings;   state  court  decision  that  statute  requiring  is 

constitutional;  Federal  jurisdiction §  276 

taxation  of  cars  under  New  York  Franchise  Tax  Law;  state  court 

decision;  Federal  jurisdiction §  277 

taxation  of;  state  court  decisions;  Federal  question §  277 

exemption  of  from  taxation;  whether  irrepealable;  when  a  local 

and  not  Federal  question §  278 

earlier  and  later  statutes  as  to  branch  lines  and  terminus;  no  im- 
plied repeal §  282 

repeal  or  amendment  of  statutes,  and  construction  thereof §  284 


INDEX  1097 

RAILROAD  CORPORATIONS— Continued: 

liability  for  death  by  negligence  arising  before  repeal  of  statute 

providing  for  liability §  284 

general  taxation  statute  does  not  repeal  charter  exemption  from.    §  285 
fire  negligently  caused  by;  statutory  limitation  of  damages  not 

retrospective §  287 

city  subscription  to  stock  of,  made  without  authority;  confirma- 
tion of  act  by  subsequent  statute §  288 

police  power;  extinction  of  grade  crossings;  Fourteenth  Amend- 
ment     §  295 

police  power  to  regulate;  damages  for  killing  stock;  Fourteenth 

Amendment §  295 

tunnel  of,  under  navigable  waters;  power  of  city  to  regulate ?  298 

liability  for  damages  to  employees;  due  process  of  law J  298 

requirement  as  to  payment  by  them  of  attorney's  fees;  when  un- 
constitutional      §  LH.)'.I 

when  and  when  not  denied  equal  protection  of  laws;  instances.  .    §  300 
liability  of,  for  damages  to  employees;  equal  protection  of  laws.  .    §  300 

tax  on  gross  receipts;  obligation  of  contracts §  305 

vested  franchise  rights  under  Rapid  Transit  Act §  306 

amendment,  etc.,  of  charter  of  subsidized;  obligation  of  contract.   §  321 
implied  reservation  to  incorporate  companies  to  transport  other 

than  passengei  a §  323 

exemption;  eminent  domain;  obligation  of  contracts §  327 

reorganization;  new  company;  obligation  of  contract    §329 

condemnation  of  minority  shares  of;  obligation  of  contracts.  ..  .    §332 
use  of  team,  track  and  deln  cry  space  of ;  obligation  of  contracts.  .    §  333 

crossing  track  of  other  railroads;  obligation  of  contract §  333 

constitution  subsequently  adopted;  obligation  of  contracts    ...    §  334 

right  to  use  streets  for  switch  track §344 

obligation  to  pay  expenses  for  gates,  etc..  at  railroad  crossings  of 

streets §346 

new  street:-  and  crossings;  implied  conditions §346 

conditions  as  to  payment  of  expenses  of  ordinance,  etc §347 

filing  certificate.^  citizenship;  jurisdiction note, 

requiremenl  as  to  foreign  corporations  become  residenti  §354 

license,  etc.,  tax 

imposing  new  conditions  upon 

conditions  subsequenl  which  will  work  forfeiture;  when  city  can 

not  impose 

stopping  interstate  trains;  regulation  of  commerce 
railroad  interests  are  of  greal  magnitude  and  court  should  at  all 
times  be  open  for  their  protection  equally  with  otherc 

note  (p  701  . 
m  surface  railroad;  additii  nal  fr  inchi  e  tax  .. .   §  427 

Uienation;  Bridges;  Eminent  Domain;  Obligation  of  Con- 
tracts; Railroad  Bridges;  Rate  Regulation;  Recei  ei  .  R  ula 
tion  and  ' 'ont roi;  Special  \.c\ 


1098  INDEX 

RAILROADS, 

right  to  build,  etc.,  may  be  enjoyed  by  natural  persons §  14 

right  to  construct,  etc.,  is  franchise §  14 

and  ferry  franchises  may  be  granted  to  one  corporation.  . .  .   note,  §  15 

is  not  a  ferry note,  §  15 

right  to  build,  etc.,  and  take  tolls  not  necessarily  of  corporate 

character    §  17 

when  transportation  company  also,  twofold  franchise  exists §  17 

no  private  person  can  establish,  and  collect  tolls  without  au- 
thority     note,  §  17 

charter  to  construct  along  line  of  canal;  monopoly §  22 

construction  of  one  across  another §  26 

right  to  build,  own  and  manage  not  necessarily  a  corporate  right, 

but  exercisable  by  natural  persons §  30 

license  to  operate;  license  defined note,  §  47 

includes  what;  Public  Utility  Act §  104 

as  public  highways §  107 

"railroad"  in  act  of  Congress;  when  does  not  embrace  rolling 

stock  or  other  personal  property §  107 

city  may  be  authorized  to  construct §  186 

construed §  241 

RAILROAD  TOLL  BRIDGES, 

legislature  may  grant  franchise  for §  145 

RAILWAY, 

is  not  a  street  railway note,  §  111 

See  Railroad;  Railroad  Corporation. 

RAPID  TRANSIT  ACT, 

vested  franchise  rights  under;  railroads;  obligation  of  contract.  .  §  306 

RAPID  TRANSIT  BOARD.    See  Board  of  Rapid  Transit  Railroad. 
Commissioners. 

RATE  REGULATION, 

common  carriers  subject  to §  74 

irrigation  companies  obligated  to  render  services  at  reasonable 

rates §88 

right  of  irrigation  companies  to  fix  rates §  88 

boom  company  subject  to,  of  fees  or  tolls §  90 

railroad  companies  empowered  to  charge  reasonable §  97 

business  of  stockyards  company  when  subject  to;  when  not §110 

rebates;  construction  of  Interstate  Commerce  Act §  153 

Interstate  Commerce  Commission;  powers  of,  as  to §  153 

gas  and  electric  light  companies §  160 

when  statute  fixing  rates  constitutional §  160 

when  statute  fixing  rates  violative  of  Fourteenth  Amendment.  .  §  160 
statute  appointing  railroad  commission  not  unconstitutional  as 

to  joint  rates,  etc §  167 


index  1099 

RATE  REGULATION— Continued: 

by  railroad  and  warehouse  commission §  169 

duty  to  fix  rates  cannot  be  forced  upon  courts J  17] 

water  companies  may  be  required  to  charge  only  reasonable  rates.  §  173 
power  of  appellate  court  on  appeal  as  to  reasonableness  of  rates.  .  §  174 
of  gas;  delegation  of  power  to  city  which  is  itself  a  consumer, 

when  void r  igg 

contract  with  city  as  to  maximum  rates;  consideration;  use  of 

streets &  1  g7 

when  exclusive  power  to  regulate  fees,  etc.,  cannot  be  delegated 

to  city  council;  ferries , §  188 

water  companies;  power  of  county  commissioners §  195 

powers  of  board  of  aldermen  or  selectmen  as  to  fares;  street  rail- 
Ways §  197 

by  board  of  gas  trustees §  198 

statute  partially  invalid;  separable  provisions;   railroad  commis- 
sions      §  _'  1  1 

.ration   of   power  to   villages;   water  companies;   partial   in- 
validity of  statutes §  235 

long  and  short  haul  clauses  in  state  constitution;  effect  of  state 

court  decision  in  Federal  courts §  Hjc, 

passenger  and  freight  charges;  statute  regulating;  implied  repeal.    §  L's  1 

municipal  right  to  set  off  taxes  against  water  rates §  298 

gas  rates;  due  process  of  law §  298 

tolls  for  use  of  improved  waterway;  due  process  of  law £  298 

water  rates  as  charge  upon  land;  due  process  of  law §  298 

reasonable  profit  allowed;  due  process  of  law 

stockyards;  due  process  of  law §  298 

obligation  of  contracts  

congress  cannol  abolish  or  limit  tolls  so  as  to  impair  bondholders' 

ri-bts  §340 

a  it  ion  of  r  

regulation   of  public   warehouses   and   their  charges;    Munn    \. 

Illinois $  391 

basis  of  rates;  elements  and  met  hod  of  valuation ;  real  estate; 

franchises;  good  will;  subsidiary  companies,  etc * 

■  not  be  confiscatory 

regulation  of  gas  rates;  method  of  valuation;  penalty;  equity; 

injunction   | 

ilation  of  ;  obligation  "I  contracts;  duo  | 

law;  equal  protection  ol  rvation  of  power  to  amend.  .    §393 

il  ition  of  water  rates  continued;  obligation  ol  .  de- 

fer, i  expired  |  ::''  i 

regulation  ol   •  continued;  illustrative  di 

regulation  of  f<  nd  toll 

il  ition  of  rate   or  tolls  of  tun,;. 
er  of  --.an: - 
regulation  oi  i  obligatioi  i  I 


1100  INDEX 

RATE  REGULATION— Continued: 

regulation  of  fares;  street  railways  continued;  constitutional  law; 

contract  with  company;  alteration §  399 

regulation  of  rates;  railroads §  400 

regulation  of  rates;  railroads;  powers  of  railroad  and  like  com- 
missioners      §  401 

railroads;  regulation  of  rates  by  Congress;  reservation  of  right  to 

alter  or  amend §  402 

object  of  Interstate  Commerce  Act;  powers  and  jurisdiction  of  in- 
terstate commission §  403 

posting  copy  of §  404 

regulation  of  rates;  railroads;  interstate  commerce;  taxation  of 

freight  of  passengers §  404 

regulation   of    rates;    railroads;    non-user   of   legislative   power; 

lessee §  405 

regulation  of  rates;  railroads;  reasonableness  of  rates;  confiscatory 

rates;  due  process  of  law;  equal  protection  of  laws §  406 

railroads;    unreasonable   rate   regulation;   judicial   inquiry;   due 

process  of  law;  equal  protection  of  the  laws §  407 

railroad;  rate  fixed  by  legislative  action  presumed  reasonable;  rail- 
road commission;  due  process  of  law §  408 

railroads;  test  of  reasonableness  of  rates  prescribed  by  State; 

practice;    findings §  409 

regulation  of  rates;  railroad  in  two  or  more  States;  continuous 
line;  consolidation;  test  of  reasonableness  of  rate;  penalties; 

defense §  410 

railroad;  arbitrary  regulation  of  rates;  mileage  tickets;  discrimina- 
tion; due  process  of  law;  equal  protection  of  the  laws §  411 

right  of  carrier  to  fix  rates;  to  what  extent  legislative  power  af- 
fected thereby;  exemptions;  right  to  create  railroad  commission; 
power  to  amend,  etc.,  successor  company;  obligation  of  con- 
tracts      §  412 

right  of  carrier  to  fix  rates;  basis  upon  which  fixed §  413 

right  of  carrier  to  fix  rates  in  competition;  long  and  short  hauls; 

discrimination §  414 

right  of  carrier  to  fix  rates  in  competition  continued;  interstate 

commerce;  presumption  of  good  faith;  discrimination §  415 

statute  regulating  rates  is  -prima  facie  valid note  (p.  701),  §  416 

railroad  rates;  excessive  penalties;  equal  protection  of  law §  416 

intrastate  rates;  interstate  commerce;  Federal  question 

note  (p.  699),  §  416 

whether  confiscatory;  Federal  question note  (p.  699),  §  416 

reasonableness  of,  involves  question  of  fact note  (p.  699),   §  416 

gas  company Appendix  C  (p.  985) 

basis  upon  which  may  be  made Appendix  C  (p.  986) 

increase  in  value  of  franchises  or  property  after  consolidation  of 

corporation;  basis  of  rate  regulation Appendix  C  (p.  986) 

value  of  franchises Appendix  C  (p.  986) 


INDEX  1101 

RATE  REGULATION— Continued: 

necessary  to  ascertain  value  to  determine  whether  rate  is  reason- 
able     Appendix  C  (p.  986) 

deterioration  in  value  of  property  a  matter  largely  of  opinion 

Appendix  C  (pp.  986,991) 
there  must  be  a  fair  return  upon  investment,  Appendix  C  (pp.  985,  986) 
value  of  franchises  as  basis  of  when  conclusive  as  of  time  of  con- 
solidation    Appendix  C  (pp.  986,  996) 

rate  permitting  return  of  six  per  cent  not  confiscatory 

Appendix  C  (p.  986) 
"good  will;"  when  not  a  factor  to  be  considered.  .  Appendix  C  (p.  986) 
value  of  property  to  be  determined  as  of  time  when  inquiry  is 

made  as  to  rates;  increase  in  value Appendix  C  (p.  986) 

no  particular  rate  exists  which  must  govern  in  all  cases 

Appendix  C  (p.  986,  997) 
rates  must  be  plainly  unreasonable;  to  what  extent 

v  Appendix  C  (p.  990) 

rule  governing  validity  of  statute  fixing  rates.  . .  .    Appendix  ('  (p.  990) 
necessity  of  practical  experience  to  test  result  of  rates  fixed  by 

statute Appendix  C  (pp.  990,991,  1003) 

value  of  real  or  personal  estate  and  plant  largely  based  upon  opin- 
ion  Appendix  C  (pp.  986,  991) 

expert  testimony  as  to  value  of  property.  .    Appendix  ('  (pp.  991,  999) 
taxation  of  franchises  upon  overvaluation,  immaterial  in  fixing 

value  for Appendix  ('  (pp.  986,  994  996) 

no  method  of  valuing  franchises  except  by  consideration  of  earn- 
ings     Appendix  ( '  (p.  99-1) 

profits  when  "excessive"  or  "enormous;"  value  of  property 

Append.-  C  ip  995) 
method  of  arriving  at  value  upon  which  rate  musl  he  based 

Appendix  c  i p.  997) 
reasonableness  of  depends  upon  circumstances  and  locality 

Appendix  ('  (p.  997) 
whether  investment   is  hazardous  or  safe  is  an  important   consid- 
eration in  determining  rates Appendix  C  (pp.  997,  998 

increased  cosl  of  gas;  basis  of  fixing  rate Appendix  C  (p    1001) 

See  'lolls. 

RATES 

for  use  of  water  as  a  franchise J  9 

right  to  colled  water  rates  is  franchise §16 

right   to  Colled   is  franchise 

for  railroads  and  toll  for  I  urnpikes;  \\  hether  distingui  shed       . .  .      §  17 
in  Interstate  Commerce  Vet;  meaning  of                                 note,     1 17 
right  to  collect  water  rates  is  franchise  independent  of  creative 
franchise 

REAL  ESI  VI  E, 

franchise  right  to  acquire  may  never  be  •  1 12 


1102  INDEX 

REAL  ESTATE— Continued. 

power  to  acquire  is  franchise §  12 

corporate  right  to  acquire  and  sell  land  is  property note,  §  12 

corporation  created  to  deal  in;  incidental  powers  of note,  §  12 

corporation  cannot  purchase  and  hold  indefinitely note,  §  12 

power  of  foreign  corporations  to  acquire note,  §  12 

city's  right  to  take  and  improve  lands  for  park  is  franchise.  .   note,  §  12 

franchise  not §  25 

franchise  as §  29 

as  element  of  value;  basis  on  which  fair  return  of  investment  rests  §  392 

franchise  as,  or  personal  property §§  25-27 

franchises  classed  as §  26 

value  of  in  fixing  rates;  evidence Appendix  C  (pp.  990,  991,  999) 

REALTY.     See  Real  Estate. 

RECEIVERS, 

under  foreclosure  proceedings  cannot  destroy  rights  acquired  by 

consents  of  abutting  owners  to  use  streets §  33 

of  railroads;  questions  under  state  constitutions  and  statutes  as  to 

duties  of,  foreclosed  by  state  court  decisions §  276 

RECLAMATION  DISTRICTS, 

as  public  or  quasi-public  corporations §  108 

REGULATION  AND  CONTROL, 

power  of  supervisors  to  regulate  tolls  on  toll  roads §  116 

of  State  over  railroads  created  by  State §  167 

reasonableness  of  rules;  constitutional  law;  jurisdiction;  Federal 

question §  167 

railroad  companies  subject  to  by  State §  167 

State's  power  to  regulate  and  control  public  service  corporations  §  170 

reasonableness  of  regulations;  courts  may  pass  upon §171 

"regulate"  and  "prevent"  distinguished §  187 

constitutional  provisions  as  to  when  not  self-executing §  227 

Fourteenth  Amendment  does  not  deprive  State  of  police  power.  .  .  §  295 

stockyards;  due  process  of  law §  298 

obligation  of  contracts §§  336,  337 

by  State  of  foreign  corporations;  conditions  imposed §§  351-362 

regulation  and  control;  general  statement §  364 

regulation  and  control;  generally §  365 

regulation  and  control;  police  power;  generally §  366 

foreign  and  interstate  commerce  defined;  power  to  regulate  §§  367,  368 
power  of  States  where  Congress  has  not  acted;  interstate  com- 
merce     §§  367,  368 

regulation  of  commerce;  state  control  of  business  within  jurisdic- 
tion   §  369 

regulation  of  commerce;  transportation  of  persons  or  property; 

generally §  370 


INDEX  1103 

REGULATION  AND  CONTROL— Continued: 

regulation  of  commerce;  transportation  of  railroad  cars;  transpor- 
tation over  river;  distinction  as  to  ferries;  police  power §  371 

regulation  of  commerce;  transportation  of  cattle;  inspection  law; 

police  power §§  372,  373 

regulation  of  commerce;  transportation  of  natural  gas §  374 

regulation  of  commerce;  stopping  interstate  trains §  37.5 

regulation  of  commerce;  telegraph  messages;  police  power §  376 

regulation  of  commerce;  examination  and  license  of  locomotive 

engineers;  color  blindness;  due  process  of  law §  377 

regulation  of  commerce;  tracing  lost  freight §  378 

regulation  and  control;  requiring  governmental  consent.  ...    §§  379,  380 
regulation  of  railroads;  delegation  to  commissioners;  constitu- 
tional law;  discrimination;  generally §  381 

regulation  of  railroads;  protection  against  injury  to  persons  and 

property §  382 

regulation   of  railroads;   providing   stations   or   waiting   rooms; 

police  power §  383 

regulation  of  railroads;  Sunday  trains;  interstate  commerce;  po- 
lice power §  384 

regulation  of  railroads;  safety  appliances  and  devices;  heating 

cars §  385 

regulation  of  railroads;  general  decisions;  extra  (rains  for  connec- 
tions; removal  of  tracks;  keeping  open  ticket  offices;  limitation 

of  liability;  adjusting  claims;  separate  cars §  386 

regulation  of  street  railroad  companies;  police  power §387 

regulation  of  gas  and  natural  gas  companies;  police  power §  388 

regulation  of  rates;  general  rules , §  389 

See  Corporations;   Municipalities;  Ordinances;  Railroads;  Rate 
!  it  ion-;  Sleeping-Car  Companies;  State. 

REINSURANCE, 

requirement  of  approval  of  Secretary  of  State  to  conl  racl  of,  not  a 
delegation  of  legislative  or  judicial  powers §  157 

REMEDIAL  STATUTES.     See   Construction   or  Interpretation   of 

Slat  u 

REMEDIES, 

for  usurping,  etc.,  "any  franchise; "  meaning  of  term   1 14 

change  of;  obligal  ion  of  conl  racl    §  -569 

for  assessment  by  board  of  equalization  in  excess  of  authority 

taxation;  fran<  '  titutional  lav 

See  Courts;  Equity;  Injunction;  Law;  Quo  Warranto. 

REMOVAL  OF  SI  I 

condition  or  agreements  thai  foreign  corporation  shall  not   re- 
move suits;  waiver  of  righl  | 


1104  INDEX 

RENEWAL  OF  FRANCHISE, 

construction  of  ordinance  relating  to §  286 

REORGANIZATION, 

of  corporation;   purchaser;   mortgaged   franchise;   obligation   of 

contract    §  329 

See  Alienation. 

RES  AD  JUDICATA, 

judgment  of  county  court  as,  in  granting  or  refusing  ferry  fran- 
chise      §  178 

exemption  from  taxation §  461 

RESOLUTION, 

of  trustees  of  town  granting  right  to  make  roadway  and  erect 

bridge  confers  franchise §  48 

REVENUE.     See  Taxation. 

RIPARIAN  OWNERS, 

on  Ohio  river;  ferry  franchise  grantable  by  Kentucky note,     §  15 

constitutionality  of  statute  giving  damages  for  overflowed  lands.  .    §  298 

RIPARIAN  PROPRIETOR, 

right  of  to  erect  drawbridge  is  franchise §  15 

"ROAD  AND  ITS  FRANCHISES," 

in  mortgage  embraces  what §  12 

ROADS, 

exemption  from  working  on  public  roads  as  franchise §  20 

See  Highway;  Plank  Roads;  Streets. 
ROADWAY, 

right  to  make,  and  erect  bridge  granted  by  town  trustees  confers 

franchise : §  48 

s. 

SAFETY  APPLIANCE  ACT, 

rule  in  pari  materia  when  inapplicable §  267 

SAFETY  APPLIANCES  AND  DEVICES, 

regulation  and  control;  railroads §  385 

SAFETY  DEVICES, 

sufficiency  of  title  to  acts note,  §  245 

telephone  companies;  new  conditions §  362 

SALES, 

what  street  railway  franchises  may  be  sold §31 

of  railroad;  sufficiency  of  title  to  statutes §  247 

as  doing  business  within  State;  taxation §  425 

See  Alienation;  Foreclosure;  Judicial  Sales;  Stock. 


INDEX  1105 

SAVINGS  BANKS, 

franchise  tax *  43§ 

SAVINGS  INSTITUTION, 

Congress  may  charter §  J  30 

SCHOOL  DISTRICTS, 

as  quasi-public,  or  quasi-municipal  corporations §  56 

SCHOOLS, 

reduced  rates  by  street  railroads;  construction  of  statutes §  240 

SEAL, 

right  to  use  corporate  seal,  is  franchise §  32 

SECONDARY  FRANCHISES, 

of  corporation,  what  are §  8 

privileges  granted  by  city  to  use  streets;  when  are §  48 

SECRETARY  OF  INTERIOR, 

delegated  power  to,  by  Congress,  as  to  grants  to  certain  corpora- 
tions     note,  §  130 

authorization  of,  to  grant  rights  of  way  for  telegraph  and  tele- 
phone lines  through  Indian  Territory,  exclusive §  130 

SECRETARY  OF  STATE, 

duties  devolved  upon,  in  insurance  matters §  157 

SECRETARY  OF  WAR, 

delegated  power  by  Congress;  use  of  electricity  in  Yellowstone 

National  Park note,   §  130 

delegation  of  power  to;  bridges §152 

SECI'I.'I  I  [ES, 

of  United  States  tax  on  banks  which  includes §  443 

SECURITY  COMPANIES, 

fraticlii.se   tax §  437 

SELECTMEN, 

of  town;  right  of,  to  apply  to  court  to  have  reasonableness  of  rates 

determined §  \7'-\ 

of  towns;  powers  of.  as  to  telephone  and  other  electrical  com 

panies,  railroad  companies,  paving,  etc §•  197 

of  towns;  delegation  of  power  to;  use  ol  streets §  197 

SET-OI  I 

of  taxes  againsl  water  rates  5  298 

8H  BEHOLDERS, 

franchises  of  .'is  property 5  L'.s 

in  joint -s i  •  ■  iations;  when  partners note,     §  52 

70 


1106  INDEX 

SLAUGHTER  HOUSES, 

of   corporation;   police   power;   regulation;   Fourteenth  Amend- 
ment     §  295 

SLEEPING-CAR  COMPANIES, 

are  "  common  carriers; "  statute §  74 

within  Public  Utilities  Act §  104 

palace  cars §  109 


not  common  carriers . 


109 


may  make  reasonable  regulations  as  to  right  of  passage  or  a  berth,  §  109 

obligations  rest  upon  contract  to  furnish  accommodations §  109 

additional  franchise  tax §  427 

See  Palace  Car  Companies;  Pullman  Car  Companies. 

SOLE  CORPORATIONS, 

division  into §  57 

SOURCE  OF  FRANCHISES, 

Federal,  constitutional  and  legislative  powers §§  120-131 

state,  constitutional  and  legislative  powers §§  132-146 

See  Grants. 

SOUTHERN  PACIFIC  RAILROAD, 

land  grants  to  aid note,  §  129 

SOVEREIGN.     See  State. 

SOVEREIGN  POWER.     See  Congress;  Legislature;  State. 

SPECIAL  ACTS, 

meaning  of  term  "  joint-stock  association  "  under §  53 

act  conferring  corporate  powers  on  board  of  directors  of  levee 

districts  not  a  violation  of  Constitution §  89 

Constitution  prohibiting,  not  retroactive §  215 

incorporating  taxing  district  not  repealed  by  subsequent  Consti- 
tution   §  215 

subsequent  constitution;  bank  charter §  215 

creating  corporations;  construction  of  constitutional  prohibition.  §  218 
title  insurance  company  organized  under,  prior  to  adoption  of  new 

constitution;  non-acceptance  of;  non-estoppel §  220 

may  impose  taxes  upon  receipts  of  corporations §  324 

imposing  restrictions  upon  a  railroad;  obligation  of  contracts.  §324 

reservation  of  power  to  alter,  etc.;  obligation  of  contracts §  324 

SPECIAL  CHARTERS, 

constitution  prohibiting,  not  retroactive. , §  215 

SPECIAL  FRANCHISES, 

grant  of,  should  be  clear;  strict  construction §  257 

See  Definitions;  Exclusive  Franchise;  Taxation. 

SPECIAL  LAWS.     See  Special  Acts. 


INDEX  H07 

SPECIAL  PRIVILEGES, 

enjoyed  by  citizens  in  own  States  not  secured  in  other  States.  ...    §  291 
STATE, 

may  exclude  foreign  insurance  companies  or  impose  conditions  on 

them §§13,87 

may  inquire  into  title  by  which  franchise  held §  14 

ferry  franchise  derived  from note      x  15 

authority  of  necessary  to  franchise  for  transmission  of  electricity.     §  16 

when  authority  of,  not  necessary;  gas  and  electricity §  16 

franchise  right  of  railroad  resides  primarily  in  State;  but  city 

may  act  as  agent  of «  4g 

legislative  control  of  railroad  companies note,     §  63 

powers  of,  and  powers  of  national  government §  120 

not  empowered  to  retard,  burden,  or  control  constitutional  laws 

of  Congress  to  carry  out  powers  vested  in  national  government..    §  120 
distinction  between  limitations  on  powers  of  Federal  and  stair 

governments s  j9j 

as  source  of  franchises §  122 

stands  in  place  of  king  and  has  succeeded  to  prerogatives  and 

franchises x  122 

powers  of,  as  to  bridges note,    k  |  jj 

hostile  state  legislation;  Post  Roads  Act;  telegraph  companies.  .    §  131 

may  legislate  within  its  limits §  i;il 

constitutional  and  legislative  powers;  source  of  franchise.  .    §§  132-  1  Hi 
civil  institution.-,  of;  constitutional  restraints;  obligation  of  con- 
tracts      §  3Q2 

foreign  corporations;  situs  of;  interstate  comity;  conditions §  351 

powers  as  to  exemption  from  taxation §  453 

taxation   by,  of  franchises  upon  overvaluation  immaterial  upon 

question  of  rate  regulation    Appendix  C  (pp.  986,  999) 

See  Grant;  Police  Power;  Powers. 

STATE  BOARD  OF  AGRICULTURE, 

as  private  corporation S  68 

STATE  CORPORATION  COMMISSION, 

appointment  of  certain  officers;  insurance     §  163 

when  may  declare  statute  imposing  fine  or  forfeiture  unconstitu- 
tional; judicial  acts §  170 

order  of ,  to  deliver  cars  when  a  burden  on  interstate  commerce.      §  I7(> 

a  valid  and  legal  tribunal £  1  70 

delegation  of  power  to;  extent  of 5 170 

ST  .VI  E  OFFICERS, 

injunction  against,  to  prevenl   enforcement   ol   unconstitutional 

statute  note  (p.  700  .  \  116 

joinder  as  party  defendant;  when  unnecessary       note  (p,  700),  5  H6 
attempt  of,  to  enforce  an  unconstitutional   tatute;  liable  in  pi  1 
for  consequences note  (p.  700),  g  116 


1108  INDEX 

STATE  OFFICERS— Continued: 

forfeiture  of  franchises;  powers §  486 

See  Attorney  General. 

STATIONS, 

or  waiting  rooms;  regulation  of  railroads;  police  power §  383 

STATUTE  OF  LIMITATIONS, 

privileges  of  citizens  in  the  several  States §  293 

STATUTES, 

definition  of  franchises  under §  9 

meaning  of  "any  franchise"  or  "special  privilege"  in §  14 

provision  as  to  "rates  of  toll  or  fare; "  meaning  of note,  §  17 

grants  of  franchises  strictly  construed §  23 

special  law  authorizing  city  to  issue  bonds  for  waterworks,  not 

grant  of  "corporate  powers  and  privileges" note,  §  31 

articles  of  incorporation  under  general  laws  have  effect  of  charter 

note,  §  42 
general  corporation  law,  effect  as  to  "corporate  franchise"  of 

company  organized  under §  44 

Post  Roads  Act;  telegraph  company;  effect  of  attempted  grant  of 

franchise  by  city §  48 

as  to  what  the  terms  "corporation"  and  "joint-stock  associa- 
tion" include §  52 

meaning  of  terms  "joint-stock  association"  or  "company"  as 

used   in §  53 

of  New  York  classifying  corporations note,  §  57 

"corporations"  in,  includes  board  of  chosen  freeholders.  .  .   note,  §  58 

classification  of  corporations  under §  58 

to  what  extent  corporations  are  "persons"  under §  65 

may  define  and  limit  meaning  of  "public  corporation" §  61 

railroad  corporations  as  "public  corporations" §  98 

"railroad"  in  act  of  Congress;  when  does  not  embrace  rolling 

stock  and  personal  property §  167 

fixing  charge  for  elevating,  storing,  etc.,  grain §  113 

Constitution  and  laws  of  United  States  made  in  pursuance  thereof 

are  supreme  law  of  land §  120 

of  Territories;  powers  of  Congress §  130 

acts  of  Congress  granting  rights  of  way  through  Indian  Territory 

note,  §  130 
presumption  that  legislature  acts  advisedly  in  passing  statutes.  .  §  136 
in  revising  state  court's  ruling  that  statute  valid;   Federal  Su- 
preme Court  proceeds  with  caution §  137 

curative  acts;  waiver  by  statute §  140 

certain  laws  of  New  York  embraced  in  one  scheme note,  §  144 

curative  acts;  defects  in  consent  of  railroad  commissioners §  167 

Circuit  Court  of  Appeals  Act,  section  five;  when  legislative  acts 

of  municipality  those  of  State  within  said  act §  177 


INDEX  1109 

STATUTES— Continued : 

amendment  of  city  charter  as  to  grants  of  franchises  by  city; 

delegation  of  power §  189 

partly   invalid;   separable   provisions;   rate   regulation;   railroad 

commission §  214 

when  and  when  not  incorporated  as  part  of  charter §  243 

acts  of  incorporation;  sufficiency  of  title  to §§  245-247 

See  Construction,  etc. 

validating  statutes;  lease §  473 

rate  regulation  when  no  illegal  discrimination.  . .  .Appendix  C  (p.  1003) 
See  Civil  Service  Law;  Constitutional  Law;  Construction  and  In- 
terpretation of;  English  Companies  Act;  Joint-Stock  Associa- 
tion Laws;  Ordinance;  Post-Roads  Act;  Public  Service  Com- 
missions Law;  Public  Utility  Law;  Rate  Regulation;  Names  of 
Corporations. 

STEAMBOAT  COMPANIES.     See  Canal  Steamboat  Companies. 

STEAM  CONDUITS.     See  Conduits. 

STOCK, 

ownership  of,  as  affecting  character  of  corporation  as  public  or 

private §  60 

owned  by  individuals;  effect  as  to  making  corporations  private.      §  62 
of  railroad   company;  subscription   to;   delegation  of  power  to 

fiscal  court;  subdelegation  to  county  judge §  175 

tax  on  transfers  of;  due  process  of  law §  298 

sales  on  margin,  or  on  future  delivery;  equal  protection  of  law.  .  .    §  300 
.condemnation  of  minority  shares  of ;  railroad  corporation;  obliga- 
tion of  contracts §  332 

€>ee  Capital  Stock. 

STOCKHOLDERS, 

corporation  is  entity  entirely  distinct  from note,  §  1 1 

includes  members  of  what  corporations note,  §  52 

as  witnesses  for  corporation §  98 

extent  of  liability  fixed;  constitution  Self-executing §226 

liability;  constitutional  provisions  as  to  when  nol  self-executing.  §227 

liability;    construction   of  statutes §  253 

liability  for  debts  of  corporation;  new  constitution;  obligation  of 

contracts § 33  • 

suit  by,  for  injunction note  (p.  699),    §  416 

tax  on  Cash  value  of  shares  of  capital  stuck  not    tax  on  shaP 

note,  5'  425 

STOCKYARDS, 

regulations  of;  due  process  of  law §  298 

STOCKYARDS  COMPANIES, 

when  business  subject  to  public  control  and  regulation;  rates  . .      §  1 10 

business  of,  affected  with  public  interest J  l  H) 


1110  INDEX 

STORAGE  AND  ELEVATOR  COMPANIES, 

as  public  or  private  corporation §  113 

STREET  COMMISSIONER, 

delegation  to,  by  ordinance §  203 

STREET  RAILROAD, 

general  and  special  franchise  of;  denned §§  6,  7 

grant  to  run  a  in  city  is  void  without  proper  legislative   au- 
thority    §  14 

in  park;  power  of  commissioners  of  park  to  grant  franchise. note,  §  14 

franchise  to  construct  connecting  switch note,  §  14 

contract  with  city  to  run,  etc.,  not  a  franchise §  14 

right  to  construct,  etc.,  and  take  tolls  is  franchise note,  §  14 

exclusive  right  to  operate  is  property  right note,  §  26 

consent  of  abutting  owners  to  use  streets;  when  creates  property 

rights §  33 

connecting  switch  with  for  express  company §  79 

included  under  "railroad;"  Public  Utility  Act §  104 

is  public  utility §  HI 

in  city  streets  not  a  "commercial"  railroad note,  §  111 

defined note,  §111 

nature  and  purpose  of §111 

term  in  Public  Service  Commissioners  Law  includes  what §  112 

delegation  of  power  to  commissioners  by  Supreme  Court  to  de- 
termine construction  of §  183 

"other  appliances"  construed §  241 

STREET  RAILROAD  COMPANIES, 

franchise  embraces  what §  12 

rights  of  as  franchise §14 

franchise  must  have  its  source  in  sovereign  power §14 

nature  of  franchise §  14 

rails,  etc.,  embedded  in  street  remain  personal  property.  . .  .   note,  §  33 

what  non-essential  franchises  may  be  sold  or  assigned §  31 

what  franchise's  of  may  be  lost  by  forfeiture §  31 

when  grant  to  by  city  not  grants  of  "corporate  powers  or  privi- 
leges" essential  to  corporate  existence §  31 

right  to  use  city  streets  when  a  license  and  not  franchise.  . .  .    note,  §  47 

right  to  use  streets  a  license  or  lease  and  assignable §  47 

when  grant  by  city  is  license  and  not  a  franchise §  47 

right  to  construct  spur  connecting  track  not  a  franchise  but  li- 
cense   §  47 

defined note,  §  111 

are  "common  carriers; "  statute §  74 

are  public  carriers  of  passengers §  111 

cannot  by  contract  disable  itself  from  performance  of  public  du- 
ties   §  HI 

term  includes  what  in  Public  Service  Commissions  Law §  112 


INDEX  1111 

STREET  RAILROAD  COMPANIES— Continued: 

statute  prohibiting  laying  of  tracks  on  certain  streets  may  be  re- 

Pealed §  138 

statute  that  no  franchise  shall  be  granted  to  another  railway 

company  to  lay  tracks  on  certain  streets  may  be  repealed §  138 

power  of  board  of  equalization  to  make  original  assessment  on.  . .  .  §1 82 

when  court  cannot  restrain  grant  to  by  ordinance §  184 

when  city  can  and  cannot  grant  franchise  to §  185 

delegation  of  power  to  city  council  to  make  grants  to §  188 

dock  department  no  power  to  grant  franchises §  193 

powers  of  selectmen  of  towns  as  to §  197 

track  elevation  ordinance;  subway  construction;  powers  of  city 


officials. 


§200 


reduced  rates;  pupils  of  public  schools;  construction  of  statutes.  .  .    §  240 

"other  street  railways; "  construction  of  words  in  statute §  241 

duration  of  term;  "during  life  hereof"  construed §  241 

constitutional  requirement  as  to  paving  streets  self-executing.  ...    §  226 

sufficiency  of  title  of  act  as  to  formation  of note,  §  24.5 

sufficiency  of  title  to  statutes §  247 

grants  to;  strict  construction  against  grantee §  255 

permission  to  occupy  other  streets  not  a  new  franchise §  286 

laws  governing  apply  to  urban  and  interurban  railways  when 

classified  together §  286 

municipal  ordinances  relating  to  renewals  or  extension  of  franchise 

of;  construction  of  enactment §  286 

statutory  authority  to  become  carrier  of  freight;  validating  stat- 
utes     §  288 

tracks;  city  may  resume  control  of  streets;  due  process  of  law.  ...    §  298 
ordinance  as  to  transfers;  property  taken  without  due  process  of 

law §  299 

ted  rights s  306 

right  to  use  city  streets;  obligation  of  contract §  :\\:<, 

righl  to  lay  tracks  in  streets  implied  reservation  to  modify  grant.  .    g  323 

extension  of  franchise;  obligation  of  contracts $  330 

condition  as  to  consent   for  construction  of;  obligation  of  con- 
tract     §  335 

revocation  of  license  of ;  obligation  of  contracts 5  336 

street  paving;  conditions;  obligation  of  contracts J§  :?:;7.  338 

frani  :  in  si  reets §  :\  1 1 

evidence  of  acceptance  of  ordinance §  350 

license,  etc.,  tax §  359 

regulation  of;  police  power j  387 

Bee   Alienation;   Interurban    Railways;  Obligation   of  Contract; 
Rate  Regulation;  Street   Railway;  Taxation, 

STREETS, 

right  to  use,  is  franchise §82 

right  to  build  in  or  upon  is  franchise 5  1  1 


1112  INDEX 

STREETS— Continued : 

consent  of  abutting  owners  to  use  streets;  when  creates  prop- 
erty rights §  33 

right  by  contract  with  city  to  use  is  in  nature  of  property  an  in- 
corporeal right §  14 

right  to  use  the  public  streets  or  highways  is  property  right  and 

has  assessable  value note,  §  33 

property  rights  of  telegraph,  telephone,  and  electric  light  com- 
panies in  conduits  in §  33 

right  of  way  granted  by  municipality  when  not  a  franchise §  48 

grant  by  ordinance  to  railroad  to  use  streets  is  franchise §  14 

right  by  contract  with  city  to  use,  when  not  a  franchise §  14 

right  to  dig  up  streets  of  city  or  town  to  supply  water,  gas  or  elec- 
tricity is  franchise §  16 

grant  of  right  by  ordinance  to  use  streets  when  is  and  is  not  a 

franchise §  48 

right  of  railway  in  is  franchise §  14 

franchise  right  of  railroad  company  in;  city  acts  as  agent  of  State 

in  granting  franchise §  48 

"secondary  franchises"  in §  48 

lines  and  posts  in  streets  for  purposes  of  electricity;  when  not  a 

franchise §  47 

general  franchise;  consent  necessary  to  use  city  streets §  47 

right  to  use  of  by  street  car  company  at  least  a  license  coupled 

with  an  interest  and  assignable §  47 

right  to  use;  when  license  not  a  franchise §  47 

use  of  by  connecting  switch;  express  companies §  79 

of  city;  right  of  telegraph  companies  in;  Post-Roads  Act §  131 

right  of  gas  and  electric  company  to  maintain  poles  at  certain 

place;    prescription §  133 

refusal  of  commissioner  to  designate  location  of  poles §  140 

power  to  grant  use  of  may  be  delegated §  148 

use  of;  court's  powers  as  to  regulations  concerning §  171 

grant  to  use  city  streets;  county  court's  authority §  178 

right  to  use  for  gas  pipes;  county  commissioner's  authority §  178 

grant  to  use;   county  or  village;   county  commissioner's  author- 
ity   §178 

use  of  by  telephone  company;  power  of  probate  courts  as  to §  179 

of  New  York,  title  to  in  city  of §  183 

when  court  cannot  restrain  grant  by  ordinance  to  street  railway 

to  use §  184 

failure  of  common  council  to  act  as  to  occupancy  of  by  telephone 

company;  power  of  courts §  184 

consent  of  local  authorities  to  use  of;  municipality,  etc §  187 

use  of  power  to  "prevent"  distinguished  from  power  to  "regu- 
late". . §187 

filling  up  and  repaving;  gas  companies §  194 

paving  between  rails §  197 


INDEX  1113 

STREETS— Con  tinued : 

track  elevation  in;  subway  construction;  delegation  of  power  as  to, 

to  city  officials §  200 

constitutional  requirement  that  railroads  pave  right  of  way  is  self- 
executing §  22G 

authority  to  use;  general  and  specific  clauses;  construction  of 

statute §  240 

railroad  tracks;  city's  power  to  resume  control  of §  29S 

easements  in;  obligation  of  contract §  313 

paving  by  street  railways;  conditions  and  regulations;  obligation 

of  contracts §§  337,  338 

rights  of  corporations  to  use §§  344-347 

municipal  control  over;  franchise  rights §  344 

across  railroad  tracks;  condemnation §  346 

railroad  companies'  rights;  opening  new  streets §  346 

obligation  of  railroad  companies  to  pay  expenses  for  crossings  at 

streets §  346 

See  Consents;  Easement;  Highway;  Permits;  Street  Commissioner. 

STRUCTURE, 

such  as  pier  or  bridge  not  a  franchise §  34 

SUBMARINE  RAILWAY, 

grants  to;  strict  construction  against  grantee §  255 

SUBSURFACE  RAILWAYS.     See  Subways. 

SUBURBAN  RAILROADS.     See  Street  Railway  Companies. 

SUBWAYS, 

and  conduits;  consent  of  city  for  use  of $  1  s" 

powers  of  rapid  transit  board  to  contract;  city  ownership  and  ob- 
ligations; change  of  construction  plans §  L90 

wires  in;  consent;  board  of  aldermen  and  not  board  of  electrical 

control note,   §  191 

elevation  of  tracks  in  streets;  delegation  of  power  to  city  officials 

as    to 5  200 

submission  of  plans  to  commissioners  as  prerequisite  to  operate 

electrical  conductors §  335 

See  Underground  Tunnel  Railroad. 

SUFFRAGE, 

"elective  suffrage"  as  franchise §  21 

SUNDAY  TRAINS, 

regulation  of  railroads;  interstate  commerce;  police  power J  38 1 

SUPERINTENDENT  OF  [NSURANCE, 

delegation  of  power  to  §">.'. 

SUPERVISI  >RS.      See   Board  Of;  County   Supervisors. 


1114  INDEX 

SUPREME  COURT, 

of  New  York,  appellate  division;  appointment  by,  of  commis- 
sioners to  determine  whether  street  railroad  can  be  constructed,  §  183 

acts  as  judicial  and  not  as  supervisory  or  administrative  board  in 

disputes  between  railroad  commission  and  railroads §  184 

SUPREME  COURT  OF  UNITED  STATES, 

when  will  refuse  to  interfere  with  decision  of  highest  state  court.   §  184 

SUPREME  JUDICIAL  COURT, 

delegation  of  power  to;  reasonableness  of  rates §  173 

SURETY  COMPANIES, 

sufficiency  of  title  of  statute §  245 

SWITCH, 

franchise  to  construct  connecting note,     §  14 

See  Street  Railroad  Companies. 


T. 

TANEY, 

Chief  Justice;  definition  of  franchise  by §  1 

Chief  Justice,  definition  by,  of  franchise;  "which  do  not  belong  to 
the  citizens  of  the  country  generally  of  common  right"  ex- 
plained  note,  §  2 

TAXATION  OF  FRANCHISES, 

special  franchise  of  railroad §  7 

statute;  "franchise"  under,  defined §  9 

assessment  must  be  against  corporation  itself §11 

franchise  in  view  for,  is  any  special  or  exclusive  privilege,  etc..  .  §  16 

of  franchise  of  telegraph  company §  16 

right  of  city  to  tax  liquors,  as  franchise §  21 

right  to  use  public  streets  is  property  which  has  assessable  value 

note,  §  33 

corporate  property  of  bank  may  be  taxed §  34 

California  constitution  classifies  franchises  as  property  subject  to.  §  37 

franchise  to  be  and  franchise  to  do  business;  distinction §  39 

"corporate  franchise  or  business"  in  New  York  Tax  Law  means 

what §  39 

when  joint-stock  company  is  and  is  not  taxable  as  a  corporation.  §  52 
associations  formed  under  general  banking  law  held  liable  as 

corporations  to §  52 

when  furnishing  natural  gas  is  a  public  use  within  taxing  power.  .  §  83 

power  of  levee  district  to  levy  tax §  89 

when  levee  district  is  state  local  tax  or  assessment  district §  89 

market  company  is  private  corporation,  and  buildings  of  are  not 

exempt  from  local  taxation §  92 

of  railroads  as  public  use §  102 


INDEX  1115 

TAXATION  OF  FRANCHISES— Continued: 

ot  state  railroad  with  Federal  franchises §  129 

delegation  of  power.of §  150 

delegation  of  taxing  power  to  levee  district  when  excluded §  164 

delegation  of  power  to  equalize  taxes;  board  of  equalization.  ...    §  182 
power  of  board  of  equalization  to  make  original  assessment  on 

corporations §  182 

jurisdiction  of  Federal  courts  over  action  of  taxing  bodies  or  state 

agencies §182 

taxing  district  incorporated  by  special  law;  subsequent  constitu- 
tion does  not  repeal §  215 

tax  scheme  as  condition  to  amendment  of  Constitution §  219 

certain   requirements   mandatory;   self-executing   constitutional 

provisions §  226 

constitutional  provisions  as  to,  when  not  self-executing §  227 

to  meet  deficiencies  from  water  receipts;  partial  invalidity  of 

statutes §  235 

of  railroad;  statute  empowering  inclusion  by  railroad  commis- 
sioners for  assessment;  partial  invalidity §  235 

for  water  supply  to  city;  general  and  specific  words,  etc.;  statutory 

constitution §  240 

charge  upon  telephone  poles  as  a  "consideration  for  the  privi- 
lege ' '  not  a  tax  on  property §  21 1 

sufficiency  of  title  to  statutes note,  §  245 

statutes;  state  court  decisions;  Federal  jurisdiction §  277 

sale  by  county  treasurer  for  non-payment  of  taxes;  erroneous 

decision  of  assessor §  278 

of  telegraph  and  railroad  and  telegraph  companies  as  a  whole; 

effect  of  statute  as  repealing  power  of  cities  to  tax §  285 

effect  of  repealing  clause  in  new  enactment  and  inconsistent 

clauses  in  prior  statutes §  285 

specific  tax  upon  foreign  corporations  may  be  imposed  when  no 

discrimination §291 

of  capital  stock  of  foreign  corporation;  discrimination §  291 

discrimination;   residenl   and  non-residenl   corporations;  deduc- 
tion of  debts §292 

on  transfer  of  stock;  due  process  of  law §  298 

set-off  of  taxes  again  1  §  298 

of  national  banks;  equal  protection  of  laws §300 

on  gross  receipts  of  railroad  company;  obligation  of  contracts         5  305 
may  be  imposed  upon  receipts  of  corporations  by  special  a<  I 
reorganization  by  purchasers  .'it   foreclosure    ale;  obligation  ol 

contract §  :i-'' 

stipulation  in  bank  charter  as  to  amount  of;  obligation  of  con- 
trad     § :;;;l 

condition  as  to  license,  privilege,  business  or  occupation  ch 

rental  or  tax 5 

of  freight  or  passengers 5  404 


1116  INDEX 

TAXATION  OF  FRANCHISES— Continued: 

power  of  State;  limitation  thereon;  constitutional  law;  general 

principles §  417 

nature  of  tax;  not  a  debt  or  contractual  obligation note,  §  417 

delegation  of  power  to  tax note,  §  417 

power  to  levy  and  collect  does  not  belong  to  court  of  equity,  note,  §  417 
Federal  franchises;   agencies  of  the  Federal  government;   state 

taxation  of §  418 

power  of  States  to  tax  corporations;  agencies  of  Federal  govern- 
ment; interstate  commerce §  419 

same;  application  of  principles;  illustrative  decisions §  420 

diversity,  uniformity  and  equality  of  taxation §  421 

uniformity  and  equality  of  taxation;  constitutional  law;  board  of 

equalization;  illegal  discrimination;  jurisdiction  in  equity.  ..  .    §422 

to  what  extent  franchises  taxable;  generally §§  423,  424 

franchise  tax;  capital  stock;  meaning  of  terms;  nature  of  tax; 

construction  of  statute §  425 

of  gross  receipts;  whether  franchise  tax note,  §  425 

on  value  of  capital  stock  is  tax  on  property  in  which  capital  in- 
vested   note,  §  425 

on  cash  value  of  shares  of  capital  stock  not  tax  on  shares  of  in- 
dividual shareholders note,  §  425 

capital  stock  and  shares  in  joint-stock  company  represent  what 

property note,  §  425 

sales  as  doing  "business" §  425 

state   taxation;   franchise   assessments;   capital  stock;   constitu- 
tional law;  remedy §  426 

franchise  tax;  capital  stock;  gross  receipts;  additional  franchise; 

interstate  commerce §  427 

additional  franchise  tax;  transportation  and  transmission  corpo- 

tions §  427 

franchise  tax;  capital  stock;  who  liable;  generally §  428 

franchise  tax;  capital  stock;  who  not  liable;  generally §  429 

taxation  of  intangible  property  of  interstate  bridge;  constitu- 
tional law §  430 

taxation  of  ferry  franchise;  legal  situs  of  property;  constitutional 

law §  431 

franchise  tax;  telegraph  companies;  constitutional  law §  432 

franchise  tax;  tax  on  gross  receipts;  street  railroads §  433 

franchise  tax;  water  companies §  434 

franchise  tax;  gross  receipts;  dividends;  gas  and  electric  light  and 

power  companies §  435 

franchise  tax;  insurance  companies §  436 

franchise  tax;  guaranty  or  security  company;  trust  company.  ...    §  437 

franchise  tax;  savings  banks §  438 

franchise  tax;  national  banks §  439 

capital  stock;  tangible  and  intangible  property;  franchises;  situs 

of;  for  taxation §  440 


INDEX  1117 

TAXATIOxV  OF  FRANCHISES— Continued: 

franchise  tax;  what  is  included  as  capital  stock;  exempt  property.   §  441 

franchise  tax;  what  is  not  included  as  capital  stock §  442 

exemptions;  tax  upon  state  banks  in  which  United  States  secu- 
rities are  included §  443 

special  franchises;  taxation §  444 

franchises;  exemption  from  tax  on  capital  stock §  445 

franchise  tax;  capital  stock,  etc.;   valuation;   basis  of  computa- 
tion      §  446 

franchise  tax;  capital  stock,  etc.;  valuation;  basis  of  computation 

continued §  447 

franchise  tax;  capital  stock,  etc.;  valuation;  basis  of  computa- 
tion; continued §  448 

franchise  tax;  capital  stock,  etc.;  valuation;  basis  of  computa- 
tion;  deductions §  449 

value  of  special  franchise §  450 

deduction  from  special  franchise  tax §  451 

exemption  or  immunity  from,  as  franchise §  20 

exemption  or  immunity  from,  not  a  transferable  franchise §  20 

exemption  from,  repeal  of  statute §  Gl 

exemption  from,  under  charter;  effect  of  constitution  repealing 

exemption §  215 

exemption  from;  construction  of  constitutions §  218 

exemption  from;  constitutional  provisions  as  to,  when  not  sell- 
executing §  227 

exemption  from;  state  decision  as  to;  whether  a  Federal  question.    §  278 
exemption  or  immunity  from  taxation;  whether  a  franchise  or 

privilege §  452 

power  to  exempt  from  taxation;  State,  municipality  and  board  of 

assessment;  local  taxation §  453 

duration  and  extent  of  exemption  from  taxation §  454 

surrender  of  power  of  taxation;  presumptions;  exemption  from 

taxation;  statutory  construction §  455 

constitutional  law;  validity  of  exemption  from  taxation §  456 

obligation  of  contracts;  exemption  from  taxation;  preliminary 

statement 5   157 

obligation  of  contracl ;  reservation  of  power  to  alter,  amend  or  re- 
peal; exemption  from  taxation §  158 

obligation  of  contracts;  what  is  a  contract;  exemption  from  taxa- 
tion     5  159 

obligation  of  contracts;  what  is  not  a  contract;  exemption  from 

taxation §  160 

obligation  of  contracts;  reservation  of  power  to  alter,  etc  . 

emption  from  taxation;  res  adjudicata I  461 

exemption  from;  whether  transferable §§479    185 

TAX  LEVY, 

strict  construction  of  statute  as  to §  252 


1118  INDEX 

TAXPAYER, 

action  by,  to  restrain  trustees  of  village  from  constructing,  etc., 

lighting  system §  160 

TELEGRAPH  COMPANIES, 

taxation  of  franchise  of §  16 

property  rights  in  conduits §  33 

Federal  franchise;  effect  of  attempted  grant  of  city  franchise.  ...  §  48 

included  under  "railroad;"  Public  Utility  Act §  104 

messages  of  and  charges,  included  under  Public  Utility  Act §  104 

nature,  powers,  duties  and  obligations  of §  114 

may  condemn  private  property §  114 

as  public  or  quasi-public  servant §  114,  note,  §  63 

is  instrumentality  of  public  character §  114 

to  what  extent  common  carriers note,  §  115 

all  commercial  intercourse  between  citizens  of  different  States 

by  telegraph  cannot  be  excluded  by  a  State §  120 

Federal  aid  to §  129 

extent  of  authority  grant  by  Post-Roads  Act §  130 

lines  through  Indian  Territory §  130 

under  Post-Roads  Act  subject  to  reasonable  and  lawful  regula- 
tions of  States,  etc §  131 

Post-Roads  Act  permissive  only §  131 

franchise  is  from  State;  even  though  it  derives  certain  rights  un- 
der Post-Roads  Act §  131 

when  power  to  refuse  grant  to  is  given  cities §  140 

constitutional   provisions   conferring   rights   to;   when  not   self- 
operative  but  require  legislative  action  to  give  effect §  140 

use  of  streets;  city's  power  to  "prevent"  or  "regulate"  distin- 
guished  • §  187 

consent  of  local  authorities  as  prerequisite  to  use  of  streets §  187 

what  constitutional  requirements  as  to  are  not  self-executing.  ...  §  227 

when  statute  void  as  to  receiving,  etc.,  telegraph  messages §  232 

construction  of  along  "any  railroad;"  words  construed §  241 

construction  of  lines  "along  and  parallel"  to  railroads;  construed.  §  241 

discrimination;  sufficiency  of  title  to  statutes note,  §  245 

jurisdiction  of  court  of  visitation  over  telegraph  and  railroad 

companies;  rule  in  pari  materia §  265 

statute  taxing  telegraph  and  railroad  companies  as  a  whole;  effect 

as  repealing  power  of  cities  to  tax §  285 

license,  etc.,  tax §  360 

additional  franchise  tax §  427 

See  Alienation;  Obligation  of  Contract;  Regulation  and  Control; 
Streets;  Taxation. 

TELEPHONE, 

system  in  Territory  of  Hawaii;  act  of  Congress note,  §  130 

in  District  of  Columbia;  acts  of  Congress note,  §  130 


INDEX  1119 

TELEPHONE  COMPANIES, 

right  of,  to  occupy  streets  is  property note,     §  33 

property  rights  in  conduits §33 

privilege  granted  to,  by  city,  when  not  a  charter §  44 

are  quasi-public  servants note,     §  63 

nature,  powers,  duties  and  obligations  of §  114 

as  public  or  quasi-public  servants §  114 

is  instrumentality  of  public  character §  114 

may  condemn  private  property §114 

to  what  extent  common  carriers note,  §  115 

lines  through  Indian  Territory §  130 

constitutional  grant  of  rights  to;  when  not  self-operative  but  re- 
quires legislative  action §  140 

refusal  of  commissioner  to  designate  location  of  poles §  140 

when  power  to  refuse  grant  to,  in  given  cities §  140 

delegation  of  power  to  Circuit  Court  to  designate  route,  where 

city  fails  to  do  so,  is  void §  176 

lines  in  and  use  of  streets;  delegation  of  power  as  to,  to  probate 

courts §17'.) 

failure  of  city  council  to  act  as  to  occupancy  of  streets;  power  of 

courts §  1S4 

right  to  have  police  power  exercised  as  to  approval  of  plans,  etc..  .  §  184 

consent  of  local  authorities  as  prerequisite  to  use  of  streets §  1S7 

use  of  streets,  city's  power  to  "prevent"  or  '"regulate"  distin- 
guished   §  187 

powers  of  selectmen  of  towns  as  to §  197 

what  constitutional  requirements  as  to  are  not  self-executing.  ...  §  JL'7 

strict  construction  of  grant  against  grantee J  255 

power  of  city  to  order  wires  placed  in  conduits;  deprivation  of 

property §  298 

rights  in  streets  for  poles,  etc.;  obligation  of  contract §313 

imposing  new  conditions  upon;  safety  devices 

additional  franchise  tax.  -. §  127 

as  public  utilities Appendix  B  (§  1,  p.  941) 

See  Str<  - 

power  of  Congress  over §  130 

statutes  of;  powers  of  Congress §  130 

power  oi  '                to  grant  rights  of  way  through  Indian  Terri- 
tory for  railroads §  130 

telephone  and  telegraph  lines  through;  delegation  of  power  to 

retary  of  Interior  by  I               exclusive   §130 

powers  of  generally;  Federal  restrictions 5  130 

extent  of  legislative  powers  of 

corporal  i 01     created  by  follow  them  into  the  Union 

may  establish  board  of  loan  coi               ers               §165 

construction  of  Btatute  by  court  of;  admi  State  aftt  r  ap 

peal  taken;  state  construction  given  preference  by  Federal 

court I 


1120  INDEX 

TEXAS  AND  PACIFIC  RAILWAY, 

Federal  franchises;  land  grants §  129 

TICKET  OFFICES, 

keeping  open;  railroads;  regulation  and  control §  386 

TITLE, 

by  which  franchise  held  may  be  inquired  into  by  State §  14 

TITLE  INSURANCE  COMPANY, 

organized  under  special  act  prior  to  new  constitution;  non-ac- 
ceptance of  by  company;  non-estoppel §  220 

TOLL  BRIDGES, 

legislature  may  grant  franchise  for §  145 

power  of  police  juries  over §  201 

TOLL  ROAD  COMMISSIONERS, 

powers  as  to  toll  roads §  200 

TOLL  ROADS, 

county  supervisors  may  regulate  tolls  on §  116 

powers  of  highway  or  toll  road  commissioners §  200 

franchise;  what  is  not  acceptance  of §  350 

TOLLS, 

right  to  collect  is  franchise §  17 

right  to  construct,  etc.,  street  railway  and  to  take  tolls  is  fran- 
chise     note,     §  14 

ferry  franchise  is  privilege  to  take note,     §  15 

defined  and  distinguished note,     §  17 

when  cannot  be  demanded  for  automobile,  by  bridge  company 

note,     §  17 

on  logs  in  river;  right  to  is  franchise §  17 

for  turnpike  and  rates  for  railroad;  whether  distinguished §  17 

franchise  to  take  distinct  from  corporate  franchise §  30 

right  to  take  a  distinct  franchise  from  other  franchises  of  corpora- 
tion       §  34 

right  to  take  is  consideration  for  ferry  franchise §  80 

county  supervisors  may  regulate,  on  toll  roads §  116 

franchise;  power  to  grant  may  be  delegated §  148 

franchise  or  license  to  collect  conferred  by  board  of  supervisors.  .  .    §  199 
See  Rate  Regulation;  Rates. 

TORTS, 

alienation  of  franchises;  liability  for §  464 

TOWN  COUNCIL, 

delegation  of  power  to;  use  of  streets §  196 

limitation  upon  powers  of  gas  trustees;  rate  regulation §  198 

TOWNS, 

consent  of  authorities  to  lay  conductors  for  gas  is  franchise §  16 


INDEX  1121 

TOWNS— Continued : 

consent  of  as  prerequisite  to  use  of  streets,  etc §44 

consent  of  to  use  streets  when  a  franchise 

classed  as  political  corporations;  nature  of §  55 

as  quasi-public  or  quasi-municipal  corporations §  5G 

as  public  corporations §  61 

delegation  of  taxing  power  to  incorporated;  when  excludes  levee 

district §  164 

power  to  grant  ferry  franchise §  195 

delegation  of  power  to;  regulation  of  water  rates §  195 

See  Selectmen;  Trustees  of  Towns. 

TOWNSHIPS, 

as  quasi-public  or  quasi-municipal  corporations §  56 

consent  of §  380 

TOWN  TRUSTEES, 

resolution  authorizing  riparian  proprietor  to  make  roadway  and 

erect  bridge  confers  franchise §48 

See  Trustees  of  Towns. 

TRACTION  COMPANIES.     See  Street  Railroads. 

"TRACK," 

"track  or  tracks"  in  ordinance  construed §  241 

TRADE, 

or  commerce;  railroad  carriers' business  as  part  of §  10G 

TRADE-MARK, 

as  franchise *  " 

TRADING  COMPANIES, 

classed  as  private  corporations 5  •'•' 

TRANSFER  COMPANIES, 

additional  franchise  tax §  ,J' 

TRANSFEREE, 

of  corporation;  liability  as  to  torts  and  debts '   "'' 

TRANSPORTATION, 

of  passengers  and  property;  within  Public  Utilities  A.c1 

Facilities;  construction  of  statutet    i    to   5  252 

TRANSPORTATION  COMPANY,  ^ 

which  is  also  railroad;  twofold  franchise   J*3 

TRANSPORTATION  CORPOB  VI  [ON   LAW, 

consent  of  local  authorities  to  occupy  streel  i  and  highways 

TRANSPORTATION  CORPORATIONS, 

additional  franchise  tax 

71 


1122  INDEX 

TRUST  COMPANIES, 

franchise  tax .• §  437 

TRUSTEES, 

corporators  of  private  corporations  are  in  one  sense note,     §  55 

company  incorporated  as  trustees  of  fund  to  invest  it  and  give 

income  to  public  schools  is  private  corporation §  115 

of  corporation;  state  court  decisions  as  to  acts  of,  although  not 

in  final  judgment;  effect  of  in  Federal  court §  280 

See  Town  Trustees;  Trustees  of  Towns;  Board  of  Gas  Trustees; 
Village  Trustees. 
TRUSTEES  OF  POOR, 

are  a  public  corporation §  115 

TRUSTEES  OF  TOWNS, 

may  authorize  construction  of  drawbridge §  198 

See  Town  Trustees. 

TUNNELS, 

as  part  of  railroad  corporation;  statute §  104 

of  railroad  under  navigable  waters;  municipal  power  to  order  it 

lowered;  due  process  of  law,  etc §  298 

obligation  of  contracts §  340 

TURNPIKE  COMPANIES, 

right  to  require  tolls  of  wheelmen  is  franchise §  17 

receive  franchises  in  consideration  that  public  is  served.  . .  .   note,  §  63 

publici  juris note,  §  63 

not  a  public  corporation  within  statute  exempting  from  executions  §  116 

as  agent  of  State §  117 

grant  of  franchises  to  by  board  of  supervisors;  effect  of  grant §  199 

strict  construction  of  grant  against  grantee §  255 

city  no  right  to  regulate  and  grade  street  so  as  to  injure  company  §  345 
See  Plank  Road  Company;  Rate  Regulation. 

TURNPIKES, 

tolls  for  and  rates  for  railroads;  distinction §  17 

right  to  collect  tolls  is  franchise §  17 

how  classed;  nature  of §  55 

exclusive  grants  for  are  grants  of  franchises  of  public  character 

note,  §  63 

as  public  highways §  117,  note,  §  63 

TURNPIKE  ROADS.     See  Plank  Roads. 

u. 

ULTRA  VIRES  LEASE, 

ratification;  estoppel;  equity;  validating  statutes §  473 

UNDERGROUND  TUNNEL  RAILROAD, 

not  a  street  railway note,  §  111 


INDEX  1123 

UNINCORPORATED  VOLUNTARY  ASSOCIATION, 

membership  in  as  franchise n  1 1 

UNION  PACIFIC  RAILROAD, 

Federal  franchises 5  129 

UNITED  STATES  SECURITIES, 

tax  on  banks  which  includes §  t  !;> 

UNIVERSITY, 

state  university  is  public  corporation 

See  Colleges. 
USAGE, 

long  continued;  construction  of  constitutions §219 

of  government;  construction  of  constitutions note,   S  219 

V. 

VALUATION, 

franchise  tax;  basis  of  computation,  deductions §§  446   i;,i 

method  of.     See  Rate  Regulation;  Taxation. 

VALUE, 

of  franchise  in  itself;  depends  on  profit  to  be  made    §12 

franchise  only  of  value  in  connection  with  its  use   note.     §  :-i«) 

franchise  or  bare  right  to  do  a  thing  is  of  itself  of  do  value    .    note, 
See  Rate  Regulation. 
VENDEE, 

power  of  corporation  to  purchase  franchises J  I7C, 

under  judicial  sale  of  franchises;  rights  and  obligations  of §478 

VENDIBILITY.     See  Alienation. 

VELLAG] 

classed  as  political  corporations;  nature  of 

classified  as  public  corporations note, 

incorporated,  as  distinct  from  counties,  towns,  •  tc 
certificate  of  authority  as  prerequisite  for  lighting  system  ;  160 

r  of  courts  to  inquire  into  validity  of  light 

tract 

grant  of  franchise  to  waterworks  company;  contract  foi  hydi 

rentals;  subsequent  incorporati  liability 

delegation  of  p  water  companies;  partial  invalidity 

of   statute     

Jtreet 

\  ill  \<,i.   i  Rl  81  i  i  3, 

telephone  com]  luiu 

\Y. 
WAT]  IV;  ROOMS, 

or  stations;  regulation  of  railroad  ;  polio 


1124  INDEX 

WAIVER, 

surrender  of  legislative  powers,  or  police  powers §  138 

or  correction  of  defect  or  irregularity;  validating  statutes §  288 

condition  or  agreement  that  foreign  corporation  shall  not  remove 

suit  into  Federal  courts §  355 

WAREHOUSE  AND  GRAIN  COMMISSION, 

delegation  of  power  to §  161 

WAREHOUSE  COMMISSION.     See  Railroad  and  Warehouse  Com- 
mission. 

WAREHOUSES, 

franchise  to  construct  switch  connecting  it  with  street  railway 

note,     §  14 
public  warehouses  are  what,  as  embracing  all  warehouses,  ele- 
vators and  granaries note,  §  114 

for  grain;  police  power  to  regulate;  Fourteenth  Amendment.  ...    §  295 
and  their  charges;  regulation  of §  391 

WATER, 

right  to  supply  is  franchise §  16 

statute  as  to  supplying  water,  gas,  etc.,  when  does  not  include 

electric  lighting §  23 

right  to  furnish,  when  exclusive note,  §  24 

use  of  for  irrigation  a  public  use §  88 

WATER  COMPANIES, 

right  to  supply  water,  when  not  strictly  a  "corporate  franchise."  §  44 

may  be  compelled  to  furnish  water  at  reasonable  rates §  173 

city's  power  to  contract  for  water  supply §  187 

consent  of  city  to  exercise  of  franchise §  187 

delegation  of  power  to  village  as  to;  partial  invalidity  of  statute.  §  235 
water  supplied  city  under  contract;  taxation  to  pay  same;  general 

and  specific  words,  etc.;  statutory  construction §  240 

strict  construction  of  grant  against  grantee §  255 

rates  of,  a  charge  upon  land;  due  process  of  law §  298 

municipal  right  to  set  off  taxes  against  rates §  298 

vested  rights §  306 

right  to  use  city  streets;  obligation  of  contract §  313 

regulation  of  rates;  obligation  of  contracts §  336 

regulation  of;  police  power §  388 

regulation  of  rates;  generally §§  393-395 

regulation  of  rates;  obligation  of  contracts;  due  process  of  law; 

equal  protection  of  laws §§  393-395 

as  public  utilities Appendix  B  (§  1 ,  p.  941) 

See  Alienation;  Rate  Regulation;  Regulation  and  Control;  Taxa- 
tion; Waterworks  Company. 
WATER  RATES, 

for  use  of  as  a  franchise §  9 

See  Rate  Regulation;  Rates. 


INDEX  1125 

WATERS, 

control  of  Congress  over  navigable  waters  within  a  State;  bridges.    §  14") 
piers  erected  without  authority  in;  unlawful  structure;  owner's 

liability §  U(i 

obstruction  to  navigable;  bridges;  delegation  of  power  as  to,  to 

Secrel  ary  of  War &  152 

river  between   two  States  or  counties;  grant   of  ferry  franchise; 

jurisdiction  of  courts \ 

railroad  tunnel  under;  power  of  city  over 

Mill  Act  giving  damages  for  overflowed  lands;  constitutionality 

of  law §  298 

right  of  way  over  batture  to  navigable 5  345 

See  Bridges. 
WATERWAYS, 

tolls  for  use  of  improved;  due  process  of  law §  298 

WATERWORKS, 

special  law  authorizing  city  to  issue  bonds  for;  not  a  grant  of 

"corporate  powers  or  privileges" note,     §  31 

water  pumped  and  stored  without  city  is  only  a  means  of  exercis- 
ing franchise  as  distinguished  from  franchise  itself §  41) 

right  to  use  streets  for  system  of;  when  a  license  and  not  franchise.      5  17 

grant  by  ordinance  to,  when  a  franchise $  18 

franchise  to  construct  conferred  by  direct  or  delegated  legislative 

(lower $  118 

franchise;  power  to  grant  may  be  granted §  1  Is 

exclusive  granl   of  franchise  by  city;  partial  invalidity  of  enact- 
ment         \  235 

partial  invalidity  of  statute  effecting  change  in  system §  235 

franchise;  attempted  validation  of  void  pari  of,  by  statute 

franchise;  duration  of  term  of;  ordinance  partially  invalid 

taxation;  sufficiency  of  title  of  statute  

ficiency  of  title  to  statute note, 

plant;  construction  of  by  city;  taking  property  of  corporation; 

due  process  of  law 5  298 

Commissioner  of  Waterworks;  Irrigation  Companies. 

WATERWORKS  COMPANI1 

mdary  franchise  of;  defined 5  s 

righl  to  exisl  and  collect  water  rates  is  franchise  

nblic  in  nature 5  ' ' s 

cannot  discriminate 5  118 

ent  of  local  authoril  M  s< 

i   Waterworl 

Wll  \!:i       3a   Wl 

Wll  \i;i  AGE 

defined  and  distinguished   .  note, 

right  to,  is  franchise  .  .      J  17 


11 26  INDEX 

WHARFAGE— Continued : 

right  to  differs  from  other  franchises  of  corporation §  34 

See  Wharves. 

WHARFINGERS, 

when  not  common  carriers §  119 

WHARVES, 

owners  of  and  of  railroads  have  similar  rights §14 

right  to  construct  and  take  wharfage  is  franchise §17 

and  franchise  together  give  the  use  which  makes  franchise  valu- 
able   note>  §  39 

sufficiency  of  title  of  statute note,  §  245 

"public  wharf"  when  impressed  with  public  interest;  public  use.  §  119 

WHEELMEN, 

right  of  turnpike  company  to  collect  wharfage  is  franchise §  17 

WILLCOX  v.  CONSOLIDATED  GAS  CO pp.  983  et  seq. 

WIRES, 

and  poles  included  in  term  " plant" §  241 

See  Streets. 

WITNESSES, 

stockholders  as,  for  corporation §  98 

See  Expert  Testimony. 

WORDS  AND  PHRASES, 

"act  of  Parliament;"  incorporation  by §  122 

"act  incorporate;"  status  of  foreign  railroad  corporation.  .  note,  §  244 
"additional  franchise  or  privilege"  acquired  after  incorporation.  §  44 
"all  money  or  stock  corporations"  does  not  include  joint-stock 

companies §  52 

"along  and  parallel"  to  railroads;  construction  of  telegraph  lines,  §  241 
"any  business  in  which  electricity  over  or  through  wires  may  be 

applied  to  any  useful  purpose" §  241 

"any  franchise"  in  statute §  14 

"any  franchise"  in  statute  as  to  usurping,  etc §  16 

"any  railroad;"  construction  of  telegraph  lines  along §  241 

"appoint  and  settle  ferries; "  power  of  county  commissioners.  ...  §  194 
"approve"  and  "ratify"  not  equivalent  to  words  "to  adopt"  or 

"to  incorporate  into;"  constitutional  amendment note,  §  220 

"Bank  of  the  United  States; "  act  of  Congress  to  incorporate  the.   §  12G 

"bridge"  as  including  railroad  bridges §  145 

"by  act  of  Parliament;"  incorporation §  122 

"capital  stock,"  meaning  of §  425 

"charter;"  meaning  of  word §  41 

"charter"  as  synonymous  with  "franchise" §  46 

"chartered; "  boom  company  is  a  lawfully  chartered  corporation.     §  90 


INDEX  1127 

WORDS  AND  PHRASES— Continued: 

"citizens"  corporations  when  arc;  when  are  not §  67 

"citizens;"  insurance  companies  not;  Federal  constitution §87 

"citizen;"  privileges  and  immunities  of ,  in  the  several  States.  ..  .  §291 

"commodities,''  as  franchise §  21 

"commercial  "railroad;  street  railway  for  carriage  of  passengers  is 

not  a note,  §  111 

"common  carrier;"  meaning  of  under  Public  Service  Commissions 

Law §  74 

"consideration  for  the  privilege;''  charge  upon  telephone  poles; 

not  a  tax  or  license §241 

"constating  instruments"  constitute  charter §  41 

constitutional  power  of  making  all  laws  "necessary  and  proper" 

meaning  of note,  §  124 

"corporate  franchise" §  45 

"corporate  franchise"  distinct  from  franchises  which  corporation 

or  individual  may  exercise §  39 

"corporate  franchise; "right  to  supply  water  when  not  strictly  a.  .  §  44 

"corporate  franchise  or  business,"  meaning  of note,  §  30 

"corporate  franchise  or  business"  under  New   'Sink  Tax   Law 

means  what §  39 

"corporate  franchise  or  business;"  franchise  to  be  and  to  carry 

on  business  distinguished §  39 

"corporate  franchise  or  business;"  taxation §  425 

"corporate  franchises" §  31 

"corporate  powers  or  privileges"  not  franchises  essential  to  cor- 
porate existence §  :^l 

"corporation  "  includes  what §52 

"corporation  "  and  "incorporation  ;"  distinction §  <>() 

"corporations"  includes  board  of  chosen  freeholders note.  {  58 

" corporations  organized  under  general  laws"  includes  what §•">••! 

" damnum  absqw  in/una"  injury  to  grantee  of  ferry  franchise.  ..  .  §24 

"during  the  life  hereof;"  corporate  privileges;  duration  of  term  §241 

ejlU  drill    <ji  in  //.:;    statutes §  240 

"elective  franchise"  or  freedom §21 

"elective  suffrage"  aa  franchise §  21 

"electrical  corporation;!'  includes  what  under  I'u  LI  i<  Service  Com- 
missions Law §  7d 

"employed  within  this  State;  "taxation  on  capital  stock   5  ••'-'•r' 

"essentially  corporate  franchises" §  :'•,, 

meaning  of  word note,  §  23 

"for  its  government  "  implies  regulation  and  control;  railroad 
"for  the  privili  i  porate  franchises;  taxation 

"franchise"  

"franchi  e"    j  nonj  mou    •  il  h  "chai  ter" 

"franchise  o\  forming  a  corporation  "  wh  iti     note,  5  1 1 

franchise  tax   §  42o 

"gas  corporation  "  include-  what  corporation    .  etc 


1128  INDEX 

WORDS  AND  PHRASES— Continued: 

"good  will;"  valuation  of  property  for  rate  regulation 

Appendix  C  (p.  986) 

"granted  lands"  in  land  grant  acts  in  aid  of  railroads §  241 

"horse  and  steam  railroads" §  241 

"incorporated  or  organized  under  any  law  of  this  State"  in  stat- 
ute includes  what  companies §  52 

"incorporate  the  subscribers  to  the  Bank  of  the  United  States".  .    §  126 

"incorporation"  and  "corporation;"  distinction §  60 

incorporation  " by  act  of  Parliament" §  122 

"indemnity  lands"  construed §  241 

"joint-stock  association"  does  not  include  corporations §  52 

"joint-stock  company"  nature  of §  52 

juris  privati  when  property  devoted  to  public  use  ceases  to  be 

note,     §  97 

"j'us  publicum" §  24 

"landing"  when  synonymous  with  "levee" §  89 

"laws"  what  are;  obligation  of  contracts §  305 

"levee"  when  synonymous  with  "landing" §  89 

"manufacturing"  company;  electric  light,  heat  and  power  com- 
panies as §§  77,  78 

"manufacturing"  company;  natural  gas  company  is  not §  84 

"monopoly"  defined note,     §  22 

"municipal  authorities" §  379 

"municipal  corporations"  as  including  counties  and  towns,  note,     §  56 
"municipal  council"  defined  in  Public  Utilities  Law 

Appendix  B  (pp.  941,  942) 

"news'  contract"  as  franchise §  21 

"noscitur  a  sociis,"  maxim  applicable  in  construing  word  "priv- 
ilege          §  9 

"no  special  privileges  or  immunities" §  185 

"other  appliances;"  term  construed;  street  railroads §  241 

"other  corporate  bodies"  in  statute,  when  means  boroughs,  cities, 

etc note,  '  §  56 

"other  street  railways"  in  statute §  241 

pari  materia;  statutes  in §  239 

pari  materia  rules  as  to  construction §§  265-267 

pari  materia  act  of  incorporation;  amendatory  act §  283 

"person"  includes  private  corporation  in  statute  as  to  usurping, 

etc.,  "any  franchise" §  16 

"personal  franchise"  distinguished  from  property  franchise §  35 

"persons"  corporation  as §§  60,  64-66 

"plant"  in  charter  of  electric  light,  etc.,  company  construed §  241 

"police  power" §  149 

"political  institution"  corporation  as  a §  60 

"post-route; "  bridge  declared  a;  what  is  meant §  128 

"prevent"  power  to  distinguished  from  power  to  "regulate;"  lo- 
cal authorities §  187 


INDEX  1129 

WORDS  AND  PHRASES— Continued: 

"primary   franchise" §  8 

"private,''  after  words  "public  schools;"  construction  of  statute  §  240 

"private  juris"  taking  of  tolls  is §  SO 

"public  companies;"  railroads  as §  98 

"public  corporations; "  statute  may  define  and  limit  meaning  of.  .      §  Gl 

"public     *     *     *     franchise"  in  remedial  statute 

" public i  juris"  what  corporations  regarded  as note,     §  73 

"  publici  juris;"  ferry  franchise §80 

"public  office  or  franchise;"  how  construed §  9 

"public  schools;"  "private"  after  word  "public;"  construction; 

ejusdem   generis §  240 

"public  use;"  railroad  bridge  as §  70 

"public  use"  in  eminent  domain  statute §  241 

"public  utilities"  defined Appendix  B  (§  1,  p.  941) 

"public  wharf"  when  impressed  with  public  interest;  public  use.  .  §  119 
"quasi-public  corporation"  as  applied  to  private  corporations.  .  .  §  56 
"quasi-public  corporation"  as  misnomer  for  railroad  companies.  .      §  99 

"railroad"  construed §  -  11 

"railroad"  includes  what;  Public  Utility  Act §  104 

"railroad"  in  act  of  Congress;  when  does  not  embrace  rolling 

stock  or  personal  property §  107 

"railroad  corporation"  in  statute  includes  what §  104 

"rate,"  meaning  of  in  Interstate  Commerce  Act note,     §  17 

"rates  of  toll  or  fare"  under  statute note,     §  17 

"rates  of  toll  or  tare"  chargeable  by  street  railway  companies 

note,     §  17 
"ratify"  and  "approve"  not  equivalent  to  words  "to  adopt"  or 

"to  incorporate  into;"  constitutional  amendment note,   §  220 

"regulate,"  power  to,  distinguished  from  power  to  "prevent;" 

local  authorities §  1 s" 

salus  populi  suprema  lex 5  366 

"secondary  franchises" §5S-  's 

"special  privilege"  in  statute §  14 

"street  railroad,"  in  Public  Service  Commissions  Law,  includes 

whal  §  "2 

" street  railroad  corporation,"  in  Public  Service  Commissions  Law. 

includes  whal }  112 

"to  adopt"  or  "to  incorporate,"  nol  equivalent  of  "approve"  or 

"ratify;"  constitutional  amendment    note, 

"to  grant  corporate  powers  or  privileges"  means  in  principio 

donation™  equivalenl  t.>  phrase  t"  grai  I  '•   charters 

note, 
"t..  incorporate"  or  "to  adopt,"  nol  equivalenl  to  "appi 

"ratify"  constitutional  amendment     n 

"toll  "denned  also  distinguished  from  rates  I 

"track;  "  "track  or  tracks"  in  ordinance;  construction    5  211 

"immunity"   ""*''■      &y 


1130  INDEX 

WORDS  AND  PHRASES— Continued: 

"within  the  limits  prescribed  by  law;  statute  fixing  rates §  160 

"which  do  not  belong  to  the  citizens  of  the  country  generally  of 
common  right"  explained note,       §  2 

Y. 

YELLOWSTONE  NATIONAL  PARK, 

use  of  electricity  in;  act  of  Congress  granting  right note,  §  130 


t™™*SI„  OF  CAL.FORNU 

Los  Angeles 
This  book  is  DUE  on  the  last  date 


LIBRARY 


MAR     5  1976 
NOV  3  o  1983 


Form  L9-Series  493£ 


stamped  below. 


LAW  LIBRARY 

UNIVERSITY  QV  CALIFORNIA 
LOS  AInGELES 


SOUTHERN  REGIONAL  LIBRARY  FACILITy 

See  Spine  for 
Barcode  Number 


lit! 


m 


iiillliftiiV 


